Cramer v. Morrison

Decision Date16 January 1979
Citation88 Cal.App.3d 873,153 Cal.Rptr. 865
CourtCalifornia Court of Appeals Court of Appeals
PartiesJames M. CRAMER, as District Attorney, Plaintiff and Appellant, v. Vernon Raymond MORRISON, Defendant and Respondent. Civ. 17939.
OPINION

TAMURA, Acting Presiding Justice.

The central issue on this appeal is whether the results of an Human Leucocyte Antigen (HLA) test are admissible to establish parentage in a civil paternity suit. 1

At the commencement of trial, defendant made an oral motion in limine to exclude the results of an HLA paternity test performed by Dr. Paul Terasaki of the UCLA School of Medicine on blood samples taken from the mother, the child and defendant. 2 Defendant's position was that given the existence of a valid scientific basis for the test and accepting Dr. Terasaki's qualifications to perform it, the results were nevertheless inadmissible because (1) California law precludes use of blood test results to prove paternity and (2) the results are based on probabilities so that the prejudicial effect of the evidence would outweigh its probative value.

At the hearing on the motion, plaintiff called Dr. Terasaki who testified: The HLA test is not the typical test based on red blood cell grouping, such as those in common use in California to exclude men from parentage. 3 The test is based on tissue typing of the white blood cells. He has been working in the field of tissue typing for 20 years and has been using the HLA test for about 15 years in tissue typing for kidney transplantation. The test has gained wide acceptance for kidney transplantation and is universally used for that purpose in the United States and Europe. There is a great difference between red blood cell testing and HLA tissue typing. Red blood cell grouping involves only a small number of variables or factors, so that while a man may be conclusively ruled out as a father on the results of such tests, proof that he Is the father is very inconclusive, ordinarily involving only a 50 to 60 percent probability that the man is the father. HLA testing, on the other hand, involves a much larger number of factors, antigens in the white blood cells, so that proof of parentage is much more conclusive, usually involving a 98 percent probability that the man is the father. Based on the results of HLA tests performed on the blood taken from the child, mother and defendant in this case, Dr. Terasaki determined that there was a 98.3 percent probability that defendant was the father, i. e., only 1.7 percent of the population could be the father of this child and defendant was within that group. The doctor has been using the test for over two years to determine parentage in some 260 cases, and has testified in court as an expert witness based upon the results of the test. He noted that in Europe the HLA test has been used for a much longer time to prove paternity.

At the conclusion of the hearing, the judge ruled that while available data indicated the test was reliable, under the present state of the law in California, the evidence was inadmissible and further that there was a possibility that statistical evidence of this nature would have a prejudicial effect on the jury which would outweigh its probative value. The motion in limine was therefore granted and the case proceeded to trial before a jury.

The evidence adduced at trial may be briefly summarized as follows:

Defendant was named as father at the time of birth and the child has used his name at all times since. However, defendant has never admitted parentage or acted as a father toward the child. The mother testified that she had sexual relations with defendant during the likely time of conception of the child and that she had relations with no one else during that time. Defendant introduced evidence that he was away in the military during part of the time when conception might have occurred and also disputed the mother's testimony as to when she first missed a menstrual period. He did not deny having intercourse with the mother, but contended that she also had relations with other men during that time. Because of the variable factors inherent in the gestation process, expert testimony on probable time of conception was not conclusive. The child was shown to the jury for the purpose of comparing her appearance with that of the alleged father. The chief similarity noted in the record was eye color. On the foregoing evidence, the jury returned a verdict for defendant and judgment was entered decreeing that defendant is not the father of the child. Plaintiff appeals from the judgment.

The sole issue concerns the propriety of the court's ruling on the motion in limine. Plaintiff contends the judge erred in ruling that California law forbids use of the results of tests such as the HLA to prove parentage. Defendant seeks to support the ruling below on the two grounds on which the motion in limine was made and granted and on the further ground that plaintiff failed to show that reliability of the HLA test to prove paternity has attained general acceptance in the relevant scientific community. Pursuant to the ensuing discussion, we conclude that the court erred in granting the motion in limine on the grounds on which the motion was made and further conclude that the order cannot be upheld on the theory that plaintiff failed to adduce sufficient evidence that the HLA test has gained general acceptance in the relevant medical field as proof of paternity.

I

We first address the basic question whether California law precludes use of the results of the HLA test to prove paternity.

Under Evidence Code section 351, 4 "all relevant evidence is admissible" except as otherwise provided by statute. California has adopted a broad standard of relevancy. Section 210 provides: " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." In addition, our courts have consistently declared the general test of relevancy to be whether the evidence tends logically, naturally, and by reasonable inference to prove or disprove a material issue. (People v. Jones, 42 Cal.2d 219, 222, 266 P.2d 38; People v. Warner, 270 Cal.App.2d 900, 907-908, 76 Cal.Rptr. 160; Firlotte v. Jessee, 76 Cal.App.2d 207, 210, 172 P.2d 710.)

Apart from the possibility of exclusion of the HLA test by a specific statute and assuming its general acceptance in the scientific community as a reliable test for paternity, the results of the test are clearly probative and therefore relevant in an action to establish paternity. They have a tendency to prove the fact of paternity, which is the central issue in such actions. In fact, in the instant case, they reveal a very high probability that defendant is the father of the child in question.

Defendant, however, contends that evidence of the HLA test results is statutorily inadmissible by reason of the Uniform Act on Blood Tests to Determine Paternity enacted in California in 1953. 5 When the Legislature adopted this measure, it retained the provision of the model act which provided that blood tests could serve as conclusive evidence of an alleged father's nonpaternity, 6 but it omitted the part which allowed admission of the results of blood tests to show the possibility of paternity. 7 Defendant urges that this omission indicates that the Legislature intended to preclude the use of evidence of tests such as the HLA test to establish the paternity of an alleged father. We do not so interpret this bit of legislative history.

In our opinion, the drafters of the Uniform Act did not have in mind tests of the nature of the HLA. Initially, the terminology which the statute employs in referring to blood tests "blood types" 8 is that commonly applied to the Landsteiner series of red cell blood grouping tests. 9 This terminology is also employed in the omitted part of the model act. 10 The Landsteiner series enjoyed currency when the Uniform Act was adopted in California 11 and had been endorsed by the American Medical Association as sufficiently accepted within the scientific community to be legally valid only the year before the act's adoption. 12

Second, California courts have treated the Landsteiner series as the standard blood tests to prove nonpaternity. In Huntingdon v. Crowley, 64 Cal.2d 647, 51 Cal.Rptr. 254, 414 P.2d 382, the Supreme Court, in upholding the exclusion of the results of the Kell-Cellano blood test to disprove paternity, characterized the ABO, MN, and Rh tests as the " 'standard' systems of blood grouping" and stressed that the Kell-Cellano blood grouping test was still in a stage of experimentation and development. (Id., at p. 653, 51 Cal.Rptr. 254, 414 P.2d 382.) In a recent Court of Appeal decision, Dodd v. Henkel, 84 Cal.App.3d 604, 148 Cal.Rptr. 780, the court held that results of blood grouping or blood type tests were not admissible to prove paternity, partly on the ground that the above mentioned omission from the Uniform Act on Blood Tests to Determine Paternity was intended to preclude use of the results for that purpose. (Id., at pp. 609-610, 148 Cal.Rptr. 780.) The court indicated that its decision referred to the "generally acceptable standard classification (of blood grouping tests) commonly referred to as ABO, MN and Rh-Hr." (Id., at fn. 4.)

Finally, commentators on California law who have interpreted the omission from section 895 to mean that blood test results cannot be used as proof of paternity have indicated that the Landsteiner classification of blood groups is the test referred to by ...

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