Carlyon v. Weeks

• Decision Date: 19 August 1980
• Docket Number: No. PP-99,PP-99
• Parties: Miles Edward CARLYON, Appellant, v. Jean Wiggins WEEKS, Appellee.
• Court: Florida District Court of Appeals

Page 465

387 So.2d 465

Miles Edward CARLYON, Appellant, v. Jean Wiggins WEEKS, Appellee.

No. PP-99.

District Court of Appeal of Florida, First District.

Aug. 19, 1980.

Martin Sack, Jr., Jacksonville, for appellant.

Gary A. Benson, Jacksonville, for appellee.

MILLS, Chief Judge.

This is an appeal and cross-appeal from a final judgment entered in a paternity case after a jury trial. Carlyon challenges the trial court's order requiring him to submit to blood testing and the evidentiary rulings permitting the publication of the doctor's deposition and allowing into evidence the written report of the blood testing. We affirm.

Weeks brought suit against Carlyon to establish paternity of a child born to her. She arranged to have blood tests performed at Shands Teaching Hospital in Gainesville at her expense and it appears that Carlyon agreed to undergo the blood tests. He failed to appear at the scheduled time and subsequently the court ordered him to submit to the blood testing. He did not object to the blood test. At the time the question of the blood testing was under consideration, Weeks submitted to the court a statement from Dr. Sally E. Ryden, Medical Director of the Blood Bank at Shands, concerning the particular new test which was to be used. This test was called Human Leukocyte Antigen (HLA) Testing. The statement asserted:

Paternity can be excluded with certainty in certain cases by blood testing, but it can never be proven with certainty. Using the methods described above, we can exclude paternity in 80-90% of cases where the putative father is indeed not the father. If paternity is not excluded, one can calculate a likelihood of paternity. However, any figure so calculated is approximate rather than exact, since it is derived from frequency statistics.

The motion for examination urged that the test was relevant and probative to the determination of paternity in the action. The court ordered the examination.

After the blood testing was carried out, Carlyon filed a motion in limine to exclude the report and deposition of Dr. Ryden. The trial court denied the motion. The objections to the report and deposition were renewed at trial and overruled.

Dr. Ryden testified that the traditional red blood cell tests could be used only to exclude paternity. They would exclude a wrongfully accused man 55-60% of the time. Unless there were a particularly rare red cell group involved, however, no meaningful probability of paternity could be established. In her opinion, as supported by cited medical authority, one would have to achieve a probability factor of 80% before it would be considered meaningful.

The HLA test is a new test which is performed on white blood cells. It is essentially a tissue-typing test which can be performed on, for example, lymph or spleen tissues as well as white blood cells. The HLA test was developed and used primarily in organ transplanting for purposes of determining if organs from a donor would be accepted or rejected by the possible recipient.

The accuracy of HLA testing alone for determining a probability of paternity generally is 78-80%. Used as it was here in conjunction with red blood cell testing, the level of accuracy is over 90%. The eight tests used in this case are the tests recommended by the Joint AMA-ABA Guidelines published in the Family Law Quarterly, Vol. X, No. 3 (Fall 1976).

Regarding the specific test results applicable to Carlyon, the report stated:

Miles Edward Carlyon . . . is not excluded from paternity. . . . The odds that a random white man rather than Miles is the father of Ashton are 1194 to 1. Stated another way, the plausibility of paternity from Miles is 99.9%, making paternity "practically proved" in the terminology of Hummel.

In addition to the testimony and report of Dr. Ryden, Weeks submitted an appendix to her memorandum of law. It included, among other things, the following law review and journal articles for the judge's consideration:

Shaw and Kass, "Illegitimacy, Child Support, and Paternity Testing," 13 Houston L. Rev. 41 (1975).

Terasaki, "The Legal Implications of HLA Testing for Paternity" and a forward to "Resolution by HLA Testing of 1,000 Paternity Cases Not Excluded by ABO Testing," 16 J. of Family Law 537, 543 (1977-78).

Terasaki, et al., "Twins with Two Different Fathers Identified by HLA," 299 The New England J. Of Med. 590 (1978).

Beautyman, "Paternity Actions A Matter of Opinion Or a Trial of Blood?" 4 J. of Legal Med. 17 (1976).

Carlyon's entire argument concerning the issues raised here rests on the case Simons v. Jorg, 375 So.2d 288 (Fla.2d DCA 1979). In that case, the Second DCA granted a petition for writ of certiorari and quashed a trial court order that the defendant in a paternity action submit to blood testing on the grounds that Rule 1.360, Fla.R.Civ.P., requires a showing of good cause before a party can be ordered to submit to physical examination. In making that ruling, the court stated in its original opinion that the results of blood grouping tests excluding paternity are admissible, but tests failing to exclude paternity are inadmissible, citing 4 Fla.Jur., Bastards, § 25, N. 14; 10 Am.Jur.2d Bastards, § 118.

Chief Judge Grimes specially concurred on the basis that he could envision a case where the blood type evidence might be admissible, but concurred because of the failure to show good cause for the testing. He noted that if the Human...