We’ve never seen a case quite like Michaels v. Genzyme Corp., 2023 WL 8828003 (S.D. Ill. Dec. 21, 2023), before, and we hope we don’t again.  Michaels took the “proximate” out of proximate cause.

Here’s why we say that.  Michaels was filed in 2023 over “a paternity test that was conducted in 1989.”  Id. at *1.  That’s right – the alleged product use was 34 years before the suit was filed.  It came back negative for paternity.  That allegedly caused the  parents (both of whom are plaintiffs) to divorce, and plaintiff-mother then remarried, to the person “judicially determined” to be the father of the plaintiff-child.  Id.  So three plaintiffs, the divorced mother and father, and the child tested for paternity

Thirty-one years later, the plaintiff daughter allegedly had a DNA retest (presumably with a modern, much more scientifically advanced test), and claims “test results showed a 99.9999997% probability” of paternity, which was then purportedly confirmed by a second DNA test.  Id. at *2.  So the Michael plaintiffs, exercising 20-20 hindsight, sued the original 1989 test manufacturer for basically every bad thing that had happened to them over the past 30 years.

After a couple of minor speed bumps (res ipsa loquitur and fraud, id., at *2-3), Michaels gets to the main events.  First, the statute of limitations.  While it was undisputed that the relevant statute of limitations was two years, and that the DNA test at issue “occurred more than 34 years ago,” plaintiff skated (for now) on the statute of limitations.  “A plaintiff need not anticipate and attempt to plead around affirmative defenses, including those pertaining to the statute of limitations.”  Id. at 3 (citation and quotation marks omitted).  So Michaels OKed, for now, a 34-years-stale lawsuit.

Even more bizarre was the ruling on proximate cause, which “is an essential element of any negligence action.”  Id. at *4 (citation and quotation marks omitted).  Plaintiffs claimed that the defendant is liable for the decades old criminal conduct of a third-party.  The erroneous DNA test, supposedly caused the plaintiff-parents’ divorce, followed by the plaintiff-mother marrying the man she thought was the plaintiff-daughter’s father, followed by plaintiff daught being “abused by her putative father . . . who has since [2014] been incarcerated.”  Id. at *3.  That’s a breath-takingly attenuated chain of causation if we’ve ever seen one.  The alleged abuser had been “judicially determined” to be the genetic father (what about his DNA test?).  Id. at *1.  The abuser himself was criminally convicted and is in prison, and has no relationship – “special” or otherwise – with the manufacturer defendant.  So, in addition to the extreme passage of time, there are these two, independent superseding causes – a court order and third-party criminal activity.

Beyond that, in Michaels there is the alleged “negligence,” which appears to be nothing more than that the defendant’s test returned a false negative.  No genetic test – not now, and certainly not back in 1989, is 100% accurate, and those kind of risks tend to be the subjects of warnings, in addition to being commonly known.  Michaels is a negligence action, and the plaintiff parents will face comparative negligence issues for deciding to divorce, based on one paternity test, with no confirmation by any similar test administered to the other candidate for fatherhood.  If there were such a second test in 1989 (which we can’t say for sure), then it had to fail as well, given the complaint’s allegations.  So why is one failure actionable, but the other not?

Michaels is a far-fetched lawsuit that we think should not have gotten to first base.  It’s an example of but-for causation run mad.  It certainly should not get to second base.  DNA test manufacturers cannot be made insurers of every possible consequence of a false negative (or false positive) no matter how many years later that consequence may have occurred.