                              FILED
                               October 26, 1999

                              Cecil Crowson, Jr.
                             Appellate Court Clerk
              IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE


JUNE Z. WILKINSON,                )
                                  )
      Plaintiff/Appellant,        )          Appeal No.
                                  )          01A01-9808-CV-00446
v.                                )
                                  )          Davidson Circuit
GRANT R. WILKINSON                )          No. 97C-1364
                                  )
      Defendant/Appellee.         )
                                  )


                   COURT OF APPEALS OF TENNESSEE


                   APPEAL FROM THE CIRCUIT COURT
                       FOR DAVIDSON COUNTY


             THE HONORABLE BARBARA HAYNES PRESIDING



NICHOLAS D. HARE
500 Church Street
5th Floor
Nashville, Tennessee 37219

ATTORNEY FOR PLAINTIFF/APPELLANT


JOHN J. HOLLINS, SR.
HOLLINS, WAGSTER & YARBROUGH, P.C.
424 Church Street, Suite 2210



                                                                   Page 1
Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPELLEE

                        AFFIRMED AND REMANDED


                                          PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, P.J.
CAIN, J.
                                  OPINION
         In this personal injury case, Plaintiff June Z. Wilkinson (“Wife”) alleged

that her former husband, Defendant Grant R. Wilkinson (“Husband”) infected her

with Herpes Simplex II. Wife appeals the trial court’s decisions to deny her

motion for a physical examination under Tenn. R. Civ. P. 35 and grant Husband’s

motion for summary judgment. For the following reasons, we affirm.

         The record shows that the parties married in July 1978. They had two

children in 1980 and 1981. In 1984, Wife “began noticing a skin condition.” By

1992, the outbreaks had become more severe. In March 1994, a Nashville

dermatologist informed Wife that her skin condition was caused by the Herpes

Simplex II virus. This diagnosis was made during the pendency of the parties’

divorce proceedings.

         Convinced that Husband had committed adultery and infected her with the

disease, Wife amended her divorce complaint to assert such a claim. Wife moved

for an order requiring that Husband submit to a blood test, and the trial court denied

that motion. The divorce, which was final in January 1995, was granted to Husband




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based upon the inappropriate marital conduct of Wife. The final decree did not

mention the issue of the blood test or wife’s allegations of infection by Husband.

          After the divorce was final, Wife filed a personal injury action, alleging the

Herpes-based cause of action. During the pendency of that lawsuit, in December

1995, Husband voluntarily submitted a blood sample for testing at the University of

Washington Medical Center Laboratory. The result was negative. Husband’s

counsel provided the results of that test to Wife’s counsel in January of 1996. Wife

subsequently filed a motion for physical examination under Tenn. R. Civ. P. 35,

requesting that Husband be compelled to submit to another blood test. The court

denied that motion on March 29, 1996, and Wife eventually dismissed that lawsuit.

          In April 1997, Wife filed the underlying complaint grounded on her

contraction of Herpes. The complaint alleged battery, gross negligence, simple

negligence, negligent infliction of emotional distress and outrageous conduct arising

from her contraction of the disease. Attached to the complaint was the affidavit of a

physician who opined that the accuracy of the results of the blood test previously

taken by Husband was medically suspect “to the extent that it cannot be reasonably

relied upon for the conclusion contained therein that Grant R. Wilkinson is not in

fact a carrier of Herpes Simplex Type II.”

          Husband answered and, in addition to asserting certain defenses, denied

that he had Herpes Simplex II virus and denied that he infected Wife with that virus. 1

Husband moved for summary judgment, arguing that blood test he had undergone

demonstrated that he did not have, and had never had, Herpes Simplex II. In

support of the motion, Husband offered affidavits and deposition excerpts



                                                                                           Page 3
substantiating the regularity of the blood testing procedures which had been

employed as well as explaining the results of the test. Two days after Husband

moved for summary judgment, Wife filed a motion for a physical examination of

Husband under Tenn. R. Civ. P. 35. She sought a second blood test, arguing that

the appearance of impropriety rendered Husband’s first test invalid. The trial court

denied Wife’s motion for a physical examination and granted Husband's motion for

summary judgment. Wife appeals.

                                                 I.

          Wife’s expert opined that Wife probably contracted the virus around the

time she first experienced the rash and visited a doctor in 1984, although the

symptoms had been earlier diagnosed as “zoster” and were first diagnosed as

Herpes Simplex II in 1994. The expert further opined that:

          It is my opinion within a reasonable degree of medical certainty,
          assuming plaintiff did not have the Herpes Simplex Type II virus
          prior to her marriage to the defendant and that plaintiff was
          monogamous during her marriage to the defendant, that sexual
          contact with the defendant was the most likely cause of plaintiff’s
          infection with the Herpes Simplex Type II virus.

          However, the expert also specifically discussed a possible, although rare,

source of infection other than sexual contact.

          Experts for both Husband and Wife agree that a properly conducted

blood test which reveals an absence of HSV-II antibodies indicates that the person

tested had never acquired the virus and, therefore, could not transmit the infection.

They also agree that the Western Blot test, which was the test performed herein,

was the most appropriate test to use and that the lab which conducted the blood

test in this case was the preeminent, and perhaps only, lab for such testing.


                                                                                        Page 4
          Thus, there is no real dispute in this case as to the effect of the blood test

results if those results are valid. Husband will have demonstrated that Wife’s claim

that he infected her with the virus cannot be maintained. The real dispute herein is

whether the results of the blood test can be relied upon because of various

procedural irregularities alleged by Wife, related to the taking or handling of the

samples or the manipulation of the results and not to the methodology actually

employed in the testing.

          Wife essentially made two allegations surrounding the blood test: (1)

husband manipulated the samples, or at least the possibility exists that he

manipulated them, and (2) Husband convinced the head of the University of

Washington Medical Center Laboratory to falsify the results of the test.

Specifically, she contended that Husband sent the blood sample to the lab himself

since the Federal Express mailing labels showed Husband’s name and address as

the sender, thus raising the specter of tampering. She also suggested irregularity in

the fact that a second blood sample had to be taken and sent to the lab since the

first sample arrived at the lab in an unlabeled vial. Wife also alleged that the fact that

Husband had called the lab in Washington and talked to the doctor in charge of the

blood sampling program, Dr. Lawrence Corey, before the samples were sent was

suspicious, especially since Husband had lectured at the University of Washington

and had performed on-site reviews there related to federal grants. A note in the

records of the doctor who examined Husband and had the sample taken, Dr. Denise

Buntin, stated that Husband had informed her that he had spoken to Dr. Corey “

concerning the necessity for this testing."



                                                                                             Page 5
          Wife’s expert opined in her affidavit that:

          It is my opinion that there are several aspects of the blood test
          of defendant by Dr. Denise Buntin and the circumstances
          surrounding it that do not comport with usual and customary
          procedure in such a test; specifically: it is unusual for a patient to
          have personal contact with the doctor in charge of the laboratory
          which is to perform the analysis of the patient’s blood; and is
          especially unusual for the patient to discuss with that doctor
          allegations in a lawsuit which bear on the blood analysis to be
          performed by that doctor; it is unusual for a patient having a
          blood test to have personal discussion about shipping and
          handling procedures involved in the blood test with the
          laboratory which is to perform the analysis of the patient’s
          blood; while it would be completely improper for a patient
          himself or herself to send their own blood sample to the
          laboratory which is to perform the analysis of that blood, it is
          unusual for a patient to be listed as the sender of a blood sample
          to the laboratory which is to do the analysis of the patient’s
          blood when that patient is not in fact the sender.

          In an affidavit offered in support of Husband’s motion, Dr. Buntin stated

that Husband’s blood samples were collected and sent to the lab by her office,

although Husband had provided her with containers and Federal Express envelopes

listing him as the sender. Dr. Corey submitted an affidavit stating that he did not

know Husband, that he did not recall any conversation with him, and that the blood

sample was submitted “through routine channels via standard practices.”

          The record shows that Husband was a pharmacology professor at a local

university whose duties had included teaching, research and involvement in

therapeutic drug monitoring. Husband testified that he had contacted Dr. Corey six

months after Wife filed her first Herpes related claim because he wanted to know

how he could clear his name. On only one occasion, he called Dr.Corey because

he had heard from a colleague that Dr. Corey was the top authority on such tests.

Husband testified that Dr. Corey told him that “it’s simple, send a test, okay, if it is


                                                                                           Page 6
positive you can’t tell who gave it to whom, if it’s negative you are clean and home

free.” Husband stated that he told Dr. Corey about his case “only in the vaguest

outline” that his former wife had accused him of giving her Herpes.

           Later, when Dr. Buntin’s office inquired about the mechanics of sending

the blood samples to the laboratory, Husband called the laboratory again and spoke

to a technical person about transporting the blood sample. Husband also testified

that he had never met Dr. Buntin prior to their first appointment. He stated that he

met with the doctor, then a nurse technician took his blood, while the doctor

remained in the room. He testified that he prepared the Federal Express shipping

label and container for Dr. Buntin because she informed him that she did not have

containers in which to ship the blood sample and the dry ice required to transport

the blood. He paid for the shipping. Husband testified that he handed the empty

package to a person in Dr. Buntin’s office and had no knowledge of the package

from that point. According to Husband, two days later, Dr. Buntin’s office

informed Husband that the laboratory had refused to process his blood because his

name was not on the test tube containing the blood and they needed another blood

sample. A technician took the second sample, and Husband did not think he even

saw the doctor on his second visit. Husband explained that he had prepared that

shipping materials again for sending the blood sample to the lab and provided the

cold storage box and the dry ice for the shipment. After the blood was drawn, he

left the office.

            Dr. Buntin’s affidavit included the following:

           The vials of Dr. Wilkinson’s blood were sent to the virology
           laboratory of Dr. Lawrence Corey by my office and not by Dr.


                                                                                       Page 7
         Wilkinson. Dr. Wilkinson did furnish my office with pre-labeled
         containers to send the blood to the virology laboratory of Dr.
         Lawrence Corey, but the blood was not sent by him. It was
         necessary to send two different vials of Dr. Wilkinson’s blood
         to Dr. Corey’s laboratory because the first vial that was sent was
         not labeled with Dr. Wilkinson’s name on it. In neither instance
         did Dr. Wilkinson have access to the blood sample subsequent
         to its removal from him. . .Dr. Wilkinson’s blood was submitted
         to the virology laboratory in a normal and routine way.


         Moreover, Dr. Corey attested that he had no memory of speaking to

Husband and that, in any event, Dr. Corey had no influence on how the blood

sample was handled or processed. Dr. Corey also indicated that he had never heard

Husband lecture and Husband was not a personal friend or acquaintance. Dr.

Corey also stated, “Our laboratory is the premier reference laboratory for HSV

serological testing and we process all specimens in accordance with all rules and

regulations of laboratory practice.” He concluded his affidavit with the statement, “

Let me assure you that there was in no way any tampering of this laboratory sample

after being received at the University of Washington.”

                                          II.

         Wife argues that the trial court abused its discretion by denying her motion

for physical examination pursuant to Tenn. R. Civ. P. 35. We disagree.

         As the movant, Wife had the burden of showing good cause for the

second blood test she was requesting. 2 Denials of motions asserted under Tenn. R.

Civ. P. 35 are reviewed for abuse of discretion. See Massengale v. Massengale,

915 S.W.2d 818, 820 (Tenn. App. 1995). In BIF, Inc. v. Service Constr. Co., Inc.,

(no appeal number given), 1988 WL 72409 (Tenn. App. July 13, 1988) (no Tenn. R.

App. P. 11 application filed) this court discussed the meaning of the abuse of


                                                                                        Page 8
discretion standard of appellate review and stated:

          The standard conveys two notions. First, it indicates that the trial
          court has the authority to choose among several legally
          permissible, sometimes even conflicting, answers. Second, it
          indicates that the appellate court will not interfere with the trial
          court’s decision simply because it did not choose the alternative
          the appellate court would have chosen. (internal citations
          omitted).

BIF, 1988 WL 72409 at *2.

          The court further stated that, “When the courts refer to an abuse of

discretion, ‘they are simply saying that either discretion reposed in the lower court

judge was not exercised in conformity with applicable guidelines or the decision was

plainly against the logic and effect of the facts before the court.’” Id. (quoting Waltz,

Judicial Discretion in the Admission of Evidence Under the Federal Rules of

Evidence, 79 Nw. U.L. Rev. 1097, 1101 (1984-85)). The BIF court concluded that

a trial court’s discretionary decisions should be reviewed under a standard which

requires us to examine whether (1) the factual basis for the decision is supported by

sufficient evidence; (2) the applicable legal principles were correctly identified and

applied; and (3) the decision is within the range of acceptable alternatives. See id. at

*3.

          Here, the trial court’s decision to deny Wife’s motion was grounded on a

sufficient factual basis. The affidavit of Dr. Buntin refuted Wife’s accusation that

Husband had submitted the blood samples to the lab. Dr. Corey’s sworn statement

countered Wife’s claim that Husband had convinced Dr. Corey to falsify the lab’s

results. Wife presented only the testimony of her expert that certain aspects of the

procedures used were “unusual.” Husband’s testimony explained these purportedly



                                                                                            Page 9
“unusual” circumstances. His explanations counter each charge of “unusualness”

raised by Wife’s expert.     Here, it appears that Husband, a professional scientist,

sought a definitive test from the foremost authority in the field and made inquiries to

satisfy himself on the best way to proceed. Husband’s testimony makes it clear that

he was more familiar with transporting biological samples than Dr. Buntin and

therefore prepared the necessary labels and packaging for the shipping of his

samples.

           Nothing in the record supports Wife’s assertions of impropriety. Wife’s

position would require the trial court to disbelieve the sworn testimony of Dr. Buntin

and Dr. Corey in the absence of any colorable evidence contradicting their

statements. Having raised the issue of the “unusualness” of certain aspects of the

testing procedures, Wife had no further evidence once that “unusualness” was

explained to the satisfaction of the trial court. We cannot say that the trial court’s

decision lacked a sufficient factual basis.

           Nor did the trial court misidentify or misapply the appropriate law. The

legal test to be applied, as stating in Rule 35, is that an order requiring a party to

submit to an examination “may be made only on motion for good cause shown.” In

the absence of any colorable evidence that the initial test was performed improperly,

we cannot agree with Wife that the trial court failed “to recognize the evidentiary

dispute as to whether the blood test was done properly.”       Comments by counsel

and by the court during the hearing on Wife’s motion clearly demonstrate that the

court interpreted the issues and the evidence correctly. Wife stated that her argument

that a new blood test should be ordered was based on “the fact that his blood test



                                                                                          Page 10
was not done by the book.” The trial court analyzed the state of the evidence

supporting Wife’s argument, observing that her argument was based entirely on her

expert’s affidavit which relied on assumptions that had been refuted by Husband’s

evidence. In light of the dearth of evidence supporting Wife’s argument, we agree

that wife did not meet the requisite burden of showing good cause. Thus, the trial

court did not misidentify or misapply the applicable law.

         Finally, given the state of the evidence, we find the decision was well within

the range of acceptable alternatives.   Accordingly, the trial court did not abuse its

discretion by denying Wife’s motion for a physical examination.




                                                                                          Page 11
                                           III.

          Wife states that the denial of her motion for physical examination violated

her due process rights. Although she quotes extensively from the state and federal

constitutions, Wife offers no argument and never states the reason why this

contention requires appellate relief. See Tenn. R. App. P. 27(a)(7).

          After filing the Rule 35 motion, Wife received proper notice and the

opportunity to be heard. See Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50

(Tenn. 1993). Wife does not assert that she was not permitted adequate time to

prepare for the impending hearing. See Memphis Light, Gas and Water Div. v.

Craft, 436 U.S. 1, 14, 98 S. Ct. 1554, 1562-63, 56 L. Ed. 2d 30 (1978). At a

hearing on the matter, Wife was permitted unrestricted argument and was not

prohibited from presenting supporting evidence. See Phillips, 863 S.W.2d at 50; In

re Riggs, 612 S.W.2d 461, 465 (Tenn. App. 1980) ("In litigation between private

parties over private rights, it is well-settled that due process of law requires that both

notice and an opportunity to be heard be given to necessary parties as to the

essentials of a judicial proceeding."); see also Redd v. Tennessee Dep’t of Safety,

895 S.W.2d 332, 335 (Tenn. 1995). These facts and the absence of any argument

explaining this issue preclude us from finding that Wife’s due process rights were

abridged. The trial court herein simply ruled on a motion allowed by the rules of

civil procedure, and we have held that the trial court acted within its discretion. Wife

has failed to state a claim for denial of due process.

                                           IV.

          Wife maintains that the trial court erred in granting Husband’s motion for



                                                                                             Page 12
summary judgment. She argues that the validity of the blood test remains a disputed

issue. Wife’s lawsuit is based on her allegation that Husband infected her with the

Herpes Simplex II virus. Husband has responded by claiming he could not have so

infected Wife because he has never had the virus, as demonstrated by the results of

the blood test.

          Summary judgment is appropriate only when the movant demonstrates

that no genuine issues of material fact remain to be tried, and further shows that,

under the undisputed facts, the moving party is entitled to a judgment as a matter of

law. See White v. Lawrence, 975 S.W.2d 525, 528 (Tenn. 1998). When ruling on a

motion for summary judgment, the court must view the evidence in the light most

favorable to the nonmovant, and discard all countervailing evidence. See id. at 529.

If there is a dispute as to any material fact or any doubt as to the conclusion to be

drawn from the evidence, the motion must be denied. See Dooley v. Everett, 805

S.W.2d 380, 383 (Tenn. App. 1990). However, a party may prevail on summary

judgment by demonstrating that the nonmoving party will be unable to prove an

essential element of its case because the failure of proof on an essential element of a

claim necessarily renders all other facts immaterial. See Alexander v. Memphis

Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); see also Byrd v. Hall

, 847 S.W.2d 208, 213 (Tenn. 1993). Because these are solely legal determinations,

our review of the trial court's ruling on a motion for summary judgment is de novo

with no presumption of correctness. See White, 975 S.W.2d at 528-29.

          The record before the trial court at the time of the summary judgment

ruling included the results of Husband’s blood test which, even according to Wife’s



                                                                                          Page 13
expert, proved conclusively that Husband could not have infected Wife with the

virus. 3 Wife presented no evidence to the contrary. Instead, Wife argues that a

genuine issue of material fact existed as to the reliability of the test results.

Assuming arguendo that the material fact at issue is the validity of the test rather

than Husband’s infection with the disease, Wife’s evidence simply does not create a

genuine issue.

          The evidence submitted by Wife regarding the validity of the blood test

result for purposes of the “genuine issue” analysis under the summary judgment

standard is the same evidence she presented in support of her Tenn. R. Civ. P. 35

motion. That material is set out earlier in this opinion. Essentially, Wife has

presented an expert’s affidavit that the testing procedure, as she understood it,

included some aspects she deemed “unusual.” Husband presented evidence which

explained those “unusual” aspects. Husband’s evidence dispels the issues of

material fact Wife attempted to raise. His explanations counter each charge of “

unusualness” raised by Wife’s expert. Moreover, the mere fact that a procedure is

“unusual” does not of itself raise a disputed issue of fact. Nothing in the record

supports Wife’s assertions of impropriety, and her suspicions do not create a

genuine issue as to the test’s validity. Absent some evidence actually raising a

disputed issue regarding the validity of the results of Husband’s blood tests, we

believe summary judgment was appropriate.

          The question before the trial court on summary judgment was whether

Husband had demonstrated that Wife would be unable to prove an essential element

of her claim. Based on the evidence before the trial court, we affirm the grant of



                                                                                       Page 14
summary judgment to Husband.



         Accordingly, the judgment of the trial court is affirmed and this case is

remanded for such further proceedings as may be necessary. Costs of this appeal

shall be taxed to Appellant, for which execution may issue if necessary.

                                          _____________________________
                                          PATRICIA J. COTTRELL, JUDGE

CONCUR:


___________________________________
BEN H. CANTRELL,
PRESIDING JUDGE (M.S.)


___________________________________
WILLIAM B. CAIN, JUDGE




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