Harper v. Genzyme Corporation

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DILLON HARPER, JO BEE HARPER, and

ROBERT BERNING,

Plaintiffs,

Case No. 25-cv-296-JPG

v.

GENZYME CORPORATION, as successor in

interest to Genetic Design, Inc.,

Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Genzyme Corporation’s motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 18). Plaintiffs Dillon Harper,

Jo Bee Harper, and Robert Berning have responded to the motion (Doc. 21), and Genzyme has

replied to that response (Doc. 22). The Court will allow Jo Bee Harper’s negligence claim to

proceed but will dismiss Dillon Harper’s and Robert Berning’s negligence claims with leave to

replead because they fail to allege the compensable injury required for a negligence cause of

action. It will further dismiss all claims under the Illinois Parentage Act because the plaintiffs

fail to allege any cause of action cognizable under the Act.

I. Standard for Dismissal

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all

allegations in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To avoid

dismissal under Rule 12(b)(6) for failure to state a claim, a complaint must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This requirement is satisfied if the complaint (1) describes the claim in sufficient detail to give

the defendant fair notice of what the claim is and the grounds upon which it rests and (2)

plausibly suggests that the plaintiff has a right to relief above a speculative level. Bell Atl., 550

U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Kaminski v. Elite Staffing, Inc.,

23 F.4th 774, 776 (7th Cir. 2022); EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir.

2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Bell Atl., 550 U.S. at 556). “Determining whether a complaint

states a plausible claim for relief will . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

In Bell Atlantic, the Supreme Court rejected the more expansive interpretation of Rule

8(a)(2) that “a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief,” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Bell Atl., 550 U.S. at 561-63;

Concentra Health Servs., 496 F.3d at 777. Now “it is not enough for a complaint to avoid

foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief

. . . by providing allegations that ‘raise a right to relief above the speculative level.’” Concentra

Health Servs., 496 F.3d at 777 (quoting Bell Atl., 550 U.S. at 555).

Nevertheless, Bell Atlantic did not do away with the liberal federal notice pleading

standard. Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir.

2007). A complaint still need not contain detailed factual allegations. Bell Atl., 550 U.S. at 555.

Nevertheless, it must contain “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl., 550 U.S. at 555. If the factual detail of a

complaint is “so sketchy that the complaint does not provide the type of notice of the claim to

which the defendant is entitled under Rule 8,” it is subject to dismissal. Airborne Beepers, 499

F.3d at 667; see, e.g., Kaminski, 8 F.4th at 776-77.

II. Alleged Facts

As a preliminary matter, Genzyme’s motion to dismiss refers to matters outside the

pleadings, namely, a court order appointing Genetic Design as an examiner of blood types.

When such material is presented in connection with a Rule 12(b)(6) motion to dismiss, the Court

may treat the motion to dismiss as a motion for summary judgment or it may exclude the

additional material from consideration. See Fed. R. Civ. P. 12(d). There is an exception to this

rule, however, when the additional material is something of which the Court may take judicial

notice. See Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998).

The Court may take judicial notice of public records, including judicial proceedings. See Orgone

Cap. III, LLC v. Daubenspeck, 912 F.3d 1039, 1043-44 (7th Cir. 2019); Henson v. CSC Credit

Servs., 29 F.3d 280, 284 (7th Cir. 1994). In this case, Genzyme refers to a public record in the

plaintiffs’ original Parentage Act case, which the Court may consider without converting the

motion to a summary judgment motion. Other extrinsic matters attached by the plaintiffs will be

disregarded since they do not fall within an exception to the general rule of exclusion.

Viewing the allegations in the Complaint and judicial records and drawing all reasonable

inferences in favor of the plaintiffs, the materials establish the following relevant facts.

Dillon Harper was born to Jo Bee Harper in February 1987. Several years later, Jo Bee

sought child support in a legal proceeding against Robert Berning, the man she thought was

Dillon’s father. Pursuant to the Illinois Parentage Act of 1984, the Marion County, Illinois,

Circuit Court appointed the co-directors of Genetic Design, Inc., the predecessor to Genzyme, to

conduct blood tests to determine whether Robert was Dillon’s father.1 No party challenged

1 See Ill. Rev. Stat. 1987, ch. 40, ¶ 2511(b) (“The tests shall be conducted by an expert or experts

Genetic Design’s qualifications to conduct the tests ordered by the court.

Genetic Design conducted the blood tests in its North Carolina facility, which was made

up of various laboratories in several buildings. All tests completed in the first lab showed Robert

was Dillon’s father, but all tests completed in the second lab showed he was not. Genetic Design

reported to the court that the tests excluded Robert as Dillon’s father. That test result was

presumed accurate and was not rebutted by clear and convincing evidence. See Ill. Rev. Stat.

1987, ch. 40, ¶ 2511(e), (i).

In light of the test results, the plaintiffs proceeded in their lives as if Robert were not

Dillon’s father. As a consequence, Dillon never developed a relationship with Robert, and Jo

Bee never received child support from Robert to assist in Dillon’s upbringing.

Later, in 2023, an inquiry from Ancestry.com spurred Jo Bee to get new DNA tests, this

time at a different laboratory. The new tests showed that Robert was Dillon’s father.

In this lawsuit, Dillon, Jo Bee, and Robert are suing Genzyme, as successor in interest to

Genetic Design, alleging Genetic Design was negligent (Count 1) and violated the Illinois

Parentage Act (Count 2). The plaintiffs argue the 1991 results evidenced a negligent sample

mix-up between the two labs conducting the tests at Genetic Design’s facilities. Dillon claims to

be damaged by the deprivation of physical, mental, emotional, and monetary support from

Robert (¶ 31); Jo Bee claims to be damaged by the lack of child support from Robert (¶ 11).

Genzyme asks the Court to dismiss this case on the grounds that the plaintiffs have not

adequately pleaded damages to support a negligence claim, there is no private cause of action for

damages under the Parentage Act, and it is entitled to quasi-judicial immunity because it

performed the 1991 tests at the direction of a court.

appointed by the court.”).

III. Analysis

Jo Bee seeks as damages lost child support from Robert as a consequence of the allegedly

negligently conducted parentage test. Dillon claims he was damaged because he did not receive

the physical, mental, and monetary support from Robert. Robert pleads no claim for damages.

Genzyme argues that tortious interference, whether slight or total, with a parent-child

relationship is not a recoverable injury under Illinois law. It further argues that there is no

private cause of action under the Parentage Act against a third party like itself. Genzyme also

claims quasi-judicial immunity because Genetic Design conducted the testing pursuant to a court

order in a judicial proceeding.

A. Damages to Parent-Child Relationship

Under Illinois law, compensable damages are an essential element of a negligence case.

Brobbey v. Enter. Leasing Co. of Chi., 935 N.E.2d 1084, 1093 (Ill. App. Ct. 2010). But Illinois

does not recognize damages to the parent-child relationship as a compensable injury outside the

context of a wrongful death lawsuit. Vitro v. Mihelcic, 806 N.E.2d 632, 635 (2004) (citing

Dralle v. Ruder, 529 N.E.2d 209, 212 (Ill. 1988)); see Illinois Wrongful Death Act, 740 ILCS

180/2(a) (allowing next of kin to recover for “pecuniary injuries”); Elliott v. Willis, 442 N.E.2d

163, 168 (Ill. 1982) (pecuniary injuries under the Wrongful Death Act include the loss of the

decedent’s society and companionship by the next of kin). Indeed, relying on the Dralle-Vitro

line of cases, the Illinois Supreme Court has recently confirmed that “Illinois does not presently

recognize the tort of interference with the parent-child relationship, regardless of the damages

claimed,” and instead deferred to the legislature to create such a cause of action. Hulsh v. Hulsh,

2025 IL 130931, 2025 WL 1462937, at *1, *6 (Ill. May 22, 2025).

The plaintiffs attempt to distinguish the Dralle-Vitro line of cases by suggesting that the

deprivation of a parent-child relationship for 32 years is the functional equivalent of a wrongful

death—an outright denial of the relationship, not the mere interference previously addressed by

the Illinois Supreme Court. They offer no caselaw in support of such a proposition, and the

Court rejects it as unfounded in Illinois law and extremely unlikely to be adopted by the Illinois

Supreme Court.

Thus, to the extent Dillon and Robert may allege they have been damaged by the loss of a

parent-child relationship, they have not alleged a compensable injury, and their negligence

claims must be dismissed. However, because the Court believes they may be able to plead

compensable injuries, it will allow them an opportunity to file an amended complaint.

To the extent Jo Bee seeks lost child support, that allegation of damage is distinct from

damage to a parent-child relationship. Genzyme does not argue in its motion that Jo Bee has

insufficiently pleaded damages, so the Court will not dismiss her claim on that basis.

B. Illinois Parentage Act

The Illinois Parentage Act is based on “the right of every child to the physical, mental,

emotional, and financial support of his or her parents” regardless of the parents’ relationship to

each other. 750 ILCS 46/102. It authorizes civil proceedings to adjudicate the parentage of a

child, 750 ILCS 46/601, and to issue final judgment and appropriate orders on related matters

such as child support or parenting time, 750 ILCS 46/802. It allows participants in the civil

proceeding for adjudication of parentage to challenge experts selected by the Court to perform

and report on parentage testing, 750 ILCS 46/402(a), and to present their own expert witnesses

whose opinions may differ from the Court’s selected experts, 750 ILCS 46/407. And the

Parentage Act allows for an appeal, vacation of judgment, or other judicial review as provided

under Illinois law. 750 ILCS 46/621(e). It does not, however, create or enlarge parentage rights

under the common law, 750 ILCS 46/104, and it does not expressly create any private cause of

action for interference with a parent-child relationship by a mistaken expert or any other third

party. Instead, it leaves detection of experts’ errors to the adversarial process through cross-

examination of expert witnesses, conflicting expert testimony, competing evidence, and direct

appeal.

The plaintiffs ask the Court to imply a private right of action from the Parentage Act.

Illinois courts will imply a cause of action from a statute where

(1) the plaintiff is a member of the class for whose benefit the statute was enacted;

(2) the plaintiff’s injury is one the statute was designed to prevent; (3) a private

right of action is consistent with the underlying purpose of the statute; and (4)

implying a private right of action is necessary to provide an adequate remedy for

violations of the statute.

Fisher v. Lexington Health Care, Inc., 722 N.E.2d 1115, 1117-18 (Ill. 1999). Implying a cause

of action from a statute that does not expressly create one is an “extraordinary step” that should

be taken “only when it is clearly needed to advance the statutory purpose and when the statute

would be ineffective, as a practical matter, unless a private right of action were implied.” Rice v.

Marathon Petroleum Corp., 241 N.E.3d 410, 418 (Ill. 2024) (internal quotations omitted).

It appears that the plaintiffs are members of the classes of people the Parentage Act was

enacted to benefit: children who have a right to support from their parents, and parents who need

a procedure for ensuring their children receive the appropriate parental identification and

support. It is less likely that the statute was designed for the purpose of preventing negligent or

otherwise erroneous testing to determine parentage. The burden of flushing out unqualified

experts or erroneous testing to support their expert opinions was left to the ordinary tools of the

adversarial system—cross-examination, competing experts and evidence, and appeal. A private

right of action against a negligent expert is simply not consistent with the underlying purposes of

the Act to govern obligations of parents to their children.

Finally, creating a cause of action against expert witnesses whose opinions end up being

erroneous is not necessary to effectively administer the statute. The statute has its own

comprehensive procedures for accurately determining parentage and support obligations, and

holding expert witnesses liable in civil suits is simply not essential to that scheme.

For these reasons, the Court declines to take the “extraordinary step” of recognizing a

private right of action against an expert witness or any other third party under the Parentage Act.

There is simply no statutory cause of action—express or implied—like the plaintiffs attempt to

plead in Count 2. The Court must therefore dismiss Count 2 with prejudice.

C. Quasi-Judicial Immunity

Genzyme relies on absolute judicial immunity, which extends as quasi-judicial immunity

to court-appointed experts serving as “arms of the court” and at the direction of the court.

Vlastelica v. Brend, 954 N.E.2d 874, 879 (Ill. App. Ct. 2011) (citing Cooney v. Rossiter, 583

F.3d 967, 970 (7th Cir. 2009)). This allows court-appointed experts to fulfill their obligations to

the court without worry of harassment or intimidation. Richman v. Sheahan, 270 F.3d 430, 435

(7th Cir. 2001); Vlastelica, 954 N.E.2d at 879. This is especially true where the expert is asked

to use his or her discretion to advise the court of an opinion on a matter subject to the court’s

judgment. Heisterkamp v. Pacheco, 47 N.E.3d 1192, 1195 (Ill. App. Ct. 2016) (child

representative in custody proceeding); Vlastelica, 954 N.E.2d at 880-81 (same). However,

quasi-judicial immunity also applies to those engaging in a non-discretionary or administrative

function at the explicit direction of a judge. Zoretic v. Darge, 832 F.3d 639, 644 (7th Cir. 2016).

The plaintiffs argue that quasi-judicial immunity does not apply to Genetic Design

because it was not exercising discretion when it performed parentage testing, which they claim

involves “performing repetitive, non-discretionary, formulaic, and purely technical functions.”

Pls.’ Resp. M. Dism. 6 (Doc. 21); Miller v. Niblack, 942 S.W.2d 533 (Tenn. Ct. App. 1996).

Miller held that genetic testing was not a discretionary function, so quasi-judicial immunity did

not apply. Id. at 539.

It is unclear from the allegations in the Complaint whether Genetic Design’s role in

completing the parentage test involved the type of discretion akin to a judge’s discretion or

simply the pro forma completion of tests without exercising discretion. And neither party has

adequately addressed whether Genetic Design could fall within the second, non-discretionary

category of those entitled to quasi-judicial immunity. Accordingly, it would be premature to

afford Genzyme quasi-judicial immunity at this time.

IV. Conclusion

For the foregoing reasons, the Court:

• GRANTS in part and DENIES in part Genzyme’s motion to dismiss (Doc. 18);

• DISMISSES with prejudice Count 2;

• DISMISSES without prejudice Dillon’s and Robert’s claims in Count 1 and ORDERS

that they shall have 30 days from entry of this order to file an Amended Complaint;

• DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.

DATED: October 9, 2025

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE