M. v. Marvin S.

• Decision Date: 24 January 1997
• Citation: 173 Misc.2d 925,656 N.Y.S.2d 802
• Parties: In the Matter of M., Petitioner, v. MARVIN S., Respondent.
• Court: New York Family Court

Page 802

656 N.Y.S.2d 802

173 Misc.2d 925

In the Matter of M., Petitioner, v. MARVIN S., Respondent.

Family Court, New York County.

Jan. 24, 1997.

Raoul Lionel Felder (Kenneth B. Goldstein, of counsel), New York City, for petitioner.

Anzolone & Leshins (Preston A. Leshins, of counsel), New York City, for respondent.

GEORGE L. JUROW, Judge.

This court holds that, pursuant to the 1994 amendment to FCA § 532 that creates a rebuttable presumption of paternity if blood test results indicate at least a ninety-five percent "Probability of Paternity", it is proper for a certified laboratory that performs blood genetic marker tests to utilize an assigned "Prior Probability of Paternity" value of 0.5 in calculating a "Probability of Paternity" number, notwithstanding evidence that respondent has a fertility problem.

In this paternity proceeding, petitioner, M., seeks to establish that respondent, Marvin S., is the father of her child, S., born on April 28, 1987. Petitioner also seeks to compel respondent to furnish support for the child. Respondent denied paternity. Pursuant to FCA § 532, court-ordered blood genetic marker tests, including the human leucocyte antigen (HLA) test, were done, as well as DNA tests, on the mother, child and respondent.

The matter proceeded to a lengthy trial at which both petitioner and respondent testified. In addition, the parties each provided expert testimony and documentary evidence concerning the blood test statistical results and the significance of the respondent's alleged fertility problems.

For the reasons summarized below, the court finds by evidence that is clear, convincing, and entirely satisfactory that petitioner has met her burden of proving that respondent is the father of the subject child. See Jane PP v. Paul QQ, 65 N.Y.2d 994, 494 N.Y.S.2d 93, 484 N.E.2d 122 (1985); Social Servs. v. Philip De G., 59 N.Y.2d 137, 463 N.Y.S.2d 761, 450 N.E.2d 681 (1983).

I.

The following is a summary of the essential trial testimony and evidence:

Petitioner testified that she met the respondent in late 1982. She said she had sexual relations with respondent on five occasions between 1983 and 1986, the latter on July 23, 1986. Petitioner detailed the July 23 encounter: After having dinner, they went to her Manhattan apartment where respondent spent the night. They had sexual intercourse involving penetration and ejaculation; no birth control was used. She testified she was otherwise abstinent for many months before and after July 23. After missing her regular August cycle, she learned she was pregnant. She contacted respondent who denied he was responsible and also told her he had a low sperm count.

The results of court ordered blood tests, introduced in evidence, conducted in September, 1994, including HLA testing, showed a Combined Paternity Index of 545 to one and a Probability of Paternity of 99.82%, using a Prior Probability of 0.5; an additional DNA analysis indicated a Combined Paternity Index of 49,111 to one and a Probability of Paternity of 99.99%, also using a Prior Probability of 0.5.

Respondent testified, consistent with petitioner, that he met her in late 1982, and had sex with her several times thereafter, the last time on July 23, 1986. Although he acknowledged penetrating petitioner on July 23, and ejaculating, he denied ejaculating inside of petitioner claiming he had no "personal knowledge" of sperm being released inside her. Respondent agreed he did not use birth control with petitioner. Respondent also acknowledged fathering a child, who was born in 1968, with his first wife. He claimed he tried to conceive a child with his second wife, during the 1970s, but was unsuccessful. He consulted various physicians, and on the basis of fertility testing in 1979 and again in 1993 believed it was improbable that he could father a child.

Each party provided expert witness testimony by a Board Certified urologist who was qualified as an expert in urology and male infertility. Although neither expert examined the respondent at any time close to when the subject child was actually conceived, and although the experts differed in their estimate of the likelihood that the respondent could conceive a child on a given occasion, they both agreed on many important points: Both agreed the respondent had poor quality sperm, i.e., low sperm count, poor motility, and poor morphology; ¹ both agreed respondent had a medical condition (a bilateral varicocele, which is an abnormal swelling of veins that drain the testicles) that is a common cause of male fertility problems and the most likely cause of his poor quality sperm; both agreed respondent's potential for fertility was impaired but that he was not totally infertile.

Dr. David Bing testified as an expert witness for the petitioner. He has a doctorate in microbiology and is employed at a laboratory in Massachusetts that does paternity testing. He was qualified as an expert in microbiology and in the analysis and interpretation of paternity testing. Dr. Bing reviewed the paternity blood tests results in evidence and also familiarized himself with some aspects of the trial testimony concerning respondent's fertility issues. He agreed that the results of the paternity testing as reported by the laboratory were correct but questioned the interpretation of those results.

Dr. Bing began his direct testimony by briefly describing the derivation of the standard terms utilized in reporting paternity results: The Combined Paternity Index; the Prior Probability of Paternity; and the Probability of Paternity. In essence, the Paternity Index is a ratio comparing the frequency of the alleged father producing a set of obligatory genes (the genetic material the subject child must have inherited from its actual biological father) to the frequency of a random man of the respondent's same ethnic background producing the same set of obligatory genes. A Paternity Index is computed for each of the genetic systems used in the blood testing. The resulting indexes are then multiplied to obtain the Combined Paternity Index, which indicates how much more likely the respondent is to produce a sperm containing all of the obligatory genes compared to a randomly selected ethnically similar male. Then, a value (called the Prior Probability of Paternity) is assigned by the laboratory (which has no knowledge of the non-genetic evidence in the case) to represent the probability of paternity based on the non-genetic evidence in the case. In this case, the laboratory assumed and assigned a Prior Probability value of 0.5 which essentially assumes that the respondent alleged father is equally likely to be the biological father as he is not to be the biological father, based on the non-genetic evidence. The Combined Paternity Index and the Prior Probability of Paternity are then combined by a mathematic formula (Bayes' Theorem) to obtain a Probability of Paternity that is expressed as a percentage.

Following this explanation, Dr. Bing noted that, mathematically, as the number assigned to the Prior Probability of Paternity changes, so does the resulting Probability of Paternity. Dr. Bing then opined that in his view a Prior Probability of 0.5 is not applicable to this case. The doctor's stated reason related to the testimony and concerns raised about the respondent's fertility difficulties. According to Dr. Bing, since the respondent in fact does not have an equal chance of fathering a child on a given occasion as does a random man, because of his fertility problem, an assigned Prior Probability value of 0.5 is not a correct number. Dr. Bing testified that, in his opinion, the Prior Probability of Paternity value should be less than 1,000 or even less than 10,000. Dr. Bing illustrated how a lower Prior Probability of Paternity value would affect the final Probability of Paternity calculation: If the Prior Probability were 1/1,000 the Probability of Paternity would be 98%; if the Prior Probability were 1/10,000 the Probability of Paternity would drop to 83%; and at 1/100,000 it would reach 32%. After some reflection, Dr. Bing finally testified that in his opinion 99.9% (the Probability of Paternity reported by the laboratory and in evidence) is not correct and that, based on his knowledge of the fertility evidence, the Probability of Paternity should definitely be below 90%, with 1/10,000 his best estimate of a Prior Probability value, and therefore a Probability of Paternity figure of 83% would be the more accurate result.

On cross examination, Dr. Bing acknowledged that his own laboratory, which does thousands of paternity tests each year, uses an assigned Prior Probability figure of 0.5, as did the laboratory in this case. He further agreed that it is not the business of a paternity testing laboratory to consider fertility issues, although he insisted that it was appropriate for him, in his direct testimony, to interpret the meaning of the 0.5 assigned value. Dr. Bing further conceded that he personally knew little about fertility rates in couples with fertility difficulties. He further conceded that the Prior Probability value is affected by all the non-genetic evidence in the case, such as the facts and circumstances concerning conception, about which he knew nothing. Dr. Bing agreed that the only non-genetic fact he considered was the fertility issue and that, for example, if the respondent had, as a hypothetical fact, exclusive sex with the petitioner during the time of conception, the 0.5 Prior Probability value would surely go up, in fact, considerably up.

Dr. Clifton Ray Harris was called as an expert rebuttal witness in response to Dr. Bing. He has a doctorate in biology and genetics, and is currently an Associate Director in the Department of Paternity Evaluation at the Laboratory Corporation of America (formerly called Roche Biomedical Laboratories), the laboratory that performed the blood tests, which results are in evidence in this case. Dr....