Carr v. Grimes

• Decision Date: 17 March 1993
• Docket Number: No. 17817,17817
• Citation: 852 S.W.2d 345
• Parties: Linda Margaret CARR, Plaintiff-Respondent, v. Melvin L. GRIMES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 345

852 S.W.2d 345

Linda Margaret CARR, Plaintiff-Respondent, v.Melvin L. GRIMES, Defendant-Appellant.

No. 17817.

Missouri Court of Appeals,

Southern District,

Division One.

March 17, 1993.

Motion for Rehearing or Transfer

Denied April 8, 1993.

Peggy S. Hedrick, Springfield, for defendant-appellant.

Mark E. Fitzsimmons, Kenneth P. Reynolds, Fitzsimmons, Schroeder & Nelson, Springfield, for plaintiff-respondent.

PER CURIAM.

The respondentLinda Margaret Carr(mother) brought this action to determine if the appellantMelvin L. Grimes is the biological father of Winston David Grimes, born April 2, 1985, to the mother.A jury returned a verdict in favor of the mother on the issue of paternity.Following a separate trial to the court on the remaining issues raised by the mother's petition, the trial court ordered the appellant to pay to the mother prescribed sums for medical expenses, attorney fees, and back and future child support.

By his first two points relied on, the appellant challenges the admission into evidence of the videotaped deposition testimony of two experts, Dr. Cross and Dr. Bias, and various exhibits from those depositions.The appellant's Point III argument is that the trial court erred in not taking judicial notice of the human gestation period of 280 days and in not requiring the mother to prove deviation from that 280-day period.In Point IV the appellant complains that the trial court erred when it failed to declare a requested mistrial because a previously admitted exhibit remained on display before the jury while the mother testified.

For reasons to be discussed, we reject the appellant's points on appeal, and we affirm the judgment of the trial court.

FACTS

We begin with facts that support the jury's verdict.The appellant, an ordained minister, was serving as pastor of a church in Springfield, Missouri, when he met the mother.

The mother testified that on July 15, 1984, she and her sister visited with the appellant at his church.The appellant then visited the mother at her home on July 16, followed by a second visit there on July 17.During the July 17 visit the appellant and the mother"began to get romantic" and went to the bedroom and had sexual intercourse.

Around August 1the mother, who was accustomed to regular menstrual periods, missed a period and suspected she was pregnant.She visited a clinic where she received confirmation of her pregnancy.A day or two later, when she told the appellant, he did not deny paternity but told her he wanted her to get an abortion.When she told him she would not, "he told me he would do all he could to get me through it and that he would be my strength and that he wasn't going to run from me."The mother testified she had no sexual relations from March 1, 1984, until her intercourse with the appellant on July 17.

The mother and the appellant continued to see one another, and they discussed marriage plans, which never materialized.Eventually the mother broke off the relationship.On April 2, 1985, eight days prior to her April 10 due date, the mother gave birth by cesarian section to an 8-pound male whom she named Winston David Grimes.The appellant never visited the infant at the hospital and paid no medical expenses related to his birth.On April 25, 1985, the mother filed suit alleging the appellant was the child's father and seeking child support, reimbursement of medical expenses, and attorney fees.

One of the mother's older sons testified that he met the appellant at the mother's home in December 1984, and that he saw him there on one other occasion.One of the mother's neighbors identified the appellant in court as a man she had seen at the mother's home on three occasions; on two of those occasions he was driving the church van.

The appellant testified that the mother visited his church in July 1984 at which time she and her sister asked him to speak at their church.He said he never went to the mother's home and he denied having had sexual intercourse with her.Summarized, his testimony and that of other defense witnesses directly conflicted with the evidence offered by the mother concerning their relationship.

On October 7, 1986, blood samples were drawn from the mother, the appellant, and Winston at St. John's Hospital in Springfield for use in a paternity exclusion study.The samples were sent to Midwest Organ Bank, Inc., where HLA testing--so called tissue typing tests--as well as certain red blood cell tests ¹ were performed.Additional testing that could not be done by Midwest--testing of red blood cell enzymes and serum proteins--was performed at the immunogenetics laboratory of The Johns Hopkins University School of Medicine.

Over the objection of the appellant, the jury was shown the videotaped depositions of Dr. Donald E. Cross, medical director of Midwest's histocompatibility laboratory at the time the tests were conducted, and Dr. Wilma Bias, director of The Johns Hopkins laboratory, concerning the blood testing and their respective reports.

Following the showing of the Cross deposition, the mother offered into evidence 18 exhibits, most of which were Cross deposition exhibits.In response, the appellant renewed earlier written objections to certain test results and other deposition exhibits.When those objections were overruled, the appellant objected on the basis of a lack of foundation to the admission of any Cross deposition exhibits that incorporated the findings of Dr. Bias until after the Bias deposition was shown.

The appellant then moved for the admission of two Cross deposition exhibits, number 22, describing it as "the letter that [Cross] wrote to the attorneys on October 15th saying that he--based on his testing, he could not reach a substantial, statistical, significant result," and number 21, a paternity testing book that Cross, in his deposition, identified as authoritative and then read from.Counsel for the appellant continued:

The only exhibits which I believe need to be offered after the testimony of Dr. Bias are [Cross] Deposition Exhibit 2, which is Plaintiff's Exhibit 2; [Cross] Deposition Exhibit 4, and [Cross] Deposition Exhibit 16.Those I will have no objection to after the deposition of Dr. Bias.

The others I have no objection to except for the fact that I think all of the documents referred to by Dr. Cross, including Deposition Exhibits 21 and 22 should be admitted in evidence.

When the trial court learned the attorneys had not waived a foundation for the Cross deposition exhibits, he rejected all of the exhibits offered by the mother.

After the Bias deposition was shown to the jury, the mother offered 33 exhibits, including the Cross deposition exhibits earlier offered.The mother included in her offer Cross deposition exhibit 22, the October 15 letter.

When the court inquired of the mother's lawyer if his offer included the Cross deposition exhibits that the appellant wanted in evidence, he responded, "I believe so."The appellant's lawyer then said, "I have nothing further and I--I will stipulate they can be admitted."The court then stated, "The offers from the plaintiff are received into evidence."

Many of the deposition exhibits are not before this court, but from what was filed and from the record we can glean that the exhibits included the results of the HLA, red blood cell, red blood cell enzyme, and serum protein analyses.They also included paternity test reports in which statistical calculations made by the two laboratories were recorded.The statistical calculations were paternity indexes ² of 417 to 1 and 90 to 1 and plausibility of paternity ³ percentages for the appellant of 99.8% and 98.9%.

Among the defense witnesses called was Dr. Melvin Foster, a college professor who held an advanced degree in mathematics and a Ph.D. in statistics.He characterized the mother's test reports as unacceptable in the scientific community of statisticians and mathematicians because of the absence in the reports of any indication of "variability" in the figures used and any indication that the observations reported were independent, that is, that one did not influence the other.He also characterized the ratio calculation found in the reports as "misleading."

One of the Cross deposition exhibits admitted into evidence was a letter from Dr. Bias to Dr. Cross, which read:

Dear Dr. Cross

Enclosed is a second report on the Grimes/Carr paternity case with the addition of Gm and Km, the immunoglobulin allotypes.These systems do not exclude Mr. Grimes, but rather raise the likelihood ratio to 417:1 (99.8%), using the HLA frequencies from Histocompatibility Testing 1980, or to 90:1 (98.9%) using the UCLA frequencies.Both these likelihoods leave no reasonable doubt that Mr. Grimes is the father of Winston Grimes.

Sincerely yours,

/s/ Wilma B. Bias

Wilma B. Bias, Ph.D.

Professor of Medicine

Division of Medical Genetics

An enlargement of the letter was displayed to the jury and was not removed when the mother began her testimony.As the appellant's lawyer prepared to cross-examine the mother, she became aware of the enlargement and requested a mistrial, which the court denied.

The appellant asked the trial court to judicially notice a 280-day human gestation period "and a range of 38 to 42 weeks."The court refused to notice "a specific number of days" but permitted the appellant's attorney to refer in closing argument to the 38- to 42-week range.

The jury found the appellant to be the father.Following a separate trial on the issues of child support, medical expenses, and attorney fees, the trial court entered judgment.The appellant brings this appeal challenging the finding of paternity.

DISCUSSION AND DECISION

Points I & II: Admissibility of Expert Testimony

The appellant challenges the entire testimony of Dr. Cross and Dr. Bias in Points I and II of a brief that contains a "Statement of Facts" that is wholly devoid of any facts relevant to the testimony of...