EAST ST. LOUIS – Effingham residents whose lives would have turned out different if genetic testers hadn’t made a mistake in 1989 can’t pursue a suit about it now, defendants Sanofi-Aventis and Genzyme argue in U.S. district court.
They moved to dismiss the complaint of Carrie Michaels, her father Michael Ashley, and her mother Marada Zumbahlen on June 14.
The defendants' counsel Tyler Schwettman of St. Louis County also argued that Michaels, Ashley, and Zumbahlen failed to plead the elements of fraud.
“Plaintiffs have alleged no facts that would lead to an inference that defendants would reasonably foresee a false negative paternity test leading to a child being physically abused by a third party,” he wrote.
“Any other outcome would impose liability upon an actor for every injury arising after a negligent act or misrepresentation,” he added.
Joshua Edelson of Gianaris Trial Lawyers in Alton filed the complaint in St. Clair County Circuit Court in May.
He sued Genetic Design, Genzyme, Laboratory Corporation of America, and Sanofi-Aventis.
He also sued St. Anthony’s hospital in Effingham, where staff drew blood for testing.
Edelson wrote that defendants acted together to provide paternity testing to the plaintiffs.
He claimed DNA results improperly indicated Ashley was not Carrie’s father.
Ashley and Zumbahlen allegedly divorced because of the faulty test results, and Michaels had no further relationship with Ashley.
“Plaintiff Maranda Zumbahlen, relying on the test results, believing the results to be true, and with her belief that James Zumbahlen was the biological father of Carrie Michaels, married James Zumbahlen,” he wrote.
Edelson wrote that for 12 years, James Zumbahlen abused and assaulted Michaels, and she witnessed him abusing and assaulting other minors.
He wrote that Zumbahlen pleaded guilty to nine child sex offenses in exchange for 25 years.
“As an adult, Carrie Michaels did a popular ancestry DNA test and was eventually alerted by the genetic test company that Michael Ashley’s aunt had an ancestral link with her,” he wrote.
Michaels allegedly contacted Ashley, and they did further DNA tests that showed Ashley was in fact Michaels’s father.
“The time has now come for the defendants to take responsibility for their mistake and the lifelong damages, injuries, and pain it has caused plaintiffs,” Edelson wrote.
On June 12, Chief Judge Andrew Gleeson assigned Circuit Judge Kevin Hoerner.
On June 13, Genzyme and Sanofi-Aventis removed the complaint to district court.
Schwettman argued that claims against St. Anthony’s had no chance of success and plaintiffs sued the hospital solely to defeat federal jurisdiction.
He claimed the plaintiffs didn’t allege that St. Anthony’s owed them any duty much less that it breached a duty.
Schwettman also claimed St. Anthony’s couldn’t have made any false or misleading statements.
He moved to dismiss the complaint a day after removing it.
He claimed plaintiffs didn’t identify which defendant falsely ensured that their methods would produce accurate results.
“Nor do they specify the statements contended to be fraudulent, state when and where the statements were made or seen, or explain why the statements were fraudulent,” he wrote.
Schwettman claimed they failed to allege two elements for a fraud claim, knowledge that a statement was false and intent that the statement induce plaintiff to act.
On statutes of limitations, he argued that the plaintiffs would have been aware of the injury and its cause upon a reasonable investigation.
He claimed if plaintiffs had sought a paternity test from James Zumbahlen, they would have discovered he was not the father.
He added that they ignored an open question until 2021.
He also argued that the predecessor of Genzyme did not proximately cause any injury.
“Criminal acts are routinely an intervening cause breaking the chain of events unless the plaintiff can prove that the defendant could have reasonably foreseen the criminal act at the time of the negligence,” he wrote.
The court clerk randomly assigned Magistrate Judge Gilbert Sison, who will preside unless a party declines consent to magistrate jurisdiction.
If that happens the clerk will randomly assign a district judge.