Owens v. Bell, 82-1244

• Decision Date: 20 July 1983
• Docket Number: No. 82-1244,82-1244
• Citation: 6 Ohio St.3d 46,451 N.E.2d 241
• Parties: , 6 O.B.R. 65 OWENS, Appellant, v. BELL, Appellee.
• Court: Ohio Supreme Court

Page 46

6 Ohio St.3d 46

451 N.E.2d 241, 6 O.B.R. 65

OWENS, Appellant, v. BELL, Appellee.

No. 82-1244.

Supreme Court of Ohio.

July 20, 1983.

Syllabus by the Court

1. Human Leukocyte Antigen (HLA) tests are basically genetic comparison examinations rather than blood grouping tests as described in R.C. 2317.47 and former 3111.16. These tests in recent years have been medically and legally accepted as proof of the probability of paternity.

2. HLA tests constitute relevant evidence to establish the probability of paternity. This evidence would have been admissible for that purpose even prior to the enactment of R.C. 3111.09 and 3111.10, which now permit the admission of HLA test results to establish the probability of paternity.

In October 1979, the appellant, Vanessa Owens, filed a paternity complaint alleging that the appellee, Lebrone Bell, was the father of her child, Brandy Owens, born on July 4, 1978. Bell entered a plea of not guilty, posted a bond, and requested a jury trial.

The appellee filed a motion requesting that the court order appellee, appellant, and the minor child, to submit to blood grouping tests, which motion was granted. The blood grouping tests, using the ABO method, failed to exclude appellee as the father of appellant's child. Thereafter, appellee filed a motion requesting the court to order the parties and minor child to submit to another type of testing known as Human Leukocyte Antigen ("HLA") testing. The motion was granted by the trial court. The test was performed by Dr. William E. Braun of the Cleveland Clinic, who is a recognized authority in the field. The results of the test, which indicated a 98.4 percent probability that the appellee was the father of appellant's child, were filed with the trial court.

At trial, the appellant sought to call Dr. Braun as a witness in order to testify as to the results of the HLA test. The trial court refused to permit Dr. Braun to testify as to the results of this test based upon the court's determination that R.C. 2317.47 and former R.C. 3111.16 precluded the admission of the HLA test evidence because that evidence did not exclude the putative father. The jury subsequently found appellee not guilty and the trial court ordered him discharged.

Upon appeal to the court of appeals, appellant assigned as error the trial court's decision refusing the admission of testimony of the HLA test results. The court of appeals affirmed the decision of the trial court, and finding its judgment to be in conflict with the judgment of the Court of Appeals for Tuscarawas County in Pollard v. Sell (May 21, 1981), No. CA-1482, unreported, certified the record of the case to this court for review and final determination.

John T. Corrigan, Pros. Atty., and Gary W. Johnson, Asst. Pros. Atty., for appellant.

Avery I. Becker, Cleveland, for appellee.

HOLMES, Justice.

Subsequent to the trial of this matter, the General Assembly determined that it is the public policy of this state to accept the reliability of Human Leukocyte Antigen testing as a positive indicia of the probability of paternity. Therefore, this case only presents the question of whether such test results, prior to the enactment of R.C. 3111.09 and 3111.10, should have been admitted upon the issue of probability of paternity. ¹ We answer this question in the affirmative.

As stated, the sole issue raised by this appeal is whether R.C. 2317.47 and former R.C. 3111.16 would, in matters originating prior to current law, have precluded the admission of HLA test evidence which did not exclude the putative father. In pertinent part, R.C. 3111.16 provided:

"Whenever it is relevant to the defense in a paternity proceeding under sections 3111.01 to 3111.24 of the Revised Code, the trial court, on motion of the defendant, shall order that the complainant, her child, and the defendant submit to one or more blood-grouping tests to determine whether, by the use of such tests, the defendant can be determined not to be the father of the child. * * * In cases where exclusion is established, the results of the tests together with the finding of the expert of the fact of nonpaternity shall be receivable in evidence. * * * "

R.C. 2317.47 contains basically the same language limiting the admission of blood grouping test results to those cases where exclusion is shown, but is applicable to any civil or criminal proceeding. ²

In the passage of such statutes, the General Assembly was basically in concert with the legislative bodies of other states in the view that there was more than a modicum degree of fallibility in the blood grouping tests that generally had been used for a number of years in proving paternity. Before HLA tests, six red cell blood grouping tests were available for use in determining paternity (or, more precisely, nonpaternity): ABO, MNSs, Rh, Kell, Duffy and Kidd. ³ These tests analyze a very limited number of factors and, when used in combination, the mean probability of excluding a non-father is between sixty-three and seventy-two percent. ⁴

When HLA testing is used in concert with these tests, the mean probability of excluding a non-father is raised to at least ninety percent. ⁵ Use of the tests, other than HLA, is not permitted in most states to prove, as opposed to disprove, paternity. ⁶

The HLA testing procedure is not the typical test based upon red blood cell groupings such as those referred to and previously in common use in Ohio and throughout the country to exclude men from parentage. The HLA is based upon tissue typing of the white blood cells. In deciding that such tests were admissible on the question of paternity in California, which had a similar statute as Ohio, limiting test evidence to exclude paternity, a California appellate court, in Cramer v. Morrison (1979), 88 Cal.App.3d 873, 878, 153 Cal.Rptr. 865, 867, Justice Tamura writing, explained the test as follows:

" * * * 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." ⁷

The significance of the development of HLA test results for evidence within disputed parentage cases may be found within Miale, Jennings, Rettberg, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage (1976), 10 Fam.L.Q. 247, where, at page 283, it is stated:

" * * * It is recommended that steps be taken to obtain such Federal, State, or other support as to enable widespread inclusion of HLA studies in the battery of tests used in cases of disputed parentage. * * * "

A number of states, prior to Ohio's legislation, in acceptance of HLA as a testing procedure, enacted statutes which permitted the introduction of the results of such tests to prove parentage. ⁸

A rather extensive number of authors had, prior to the adoption in 1982 of R.C. 3111.09 and 3111.10, written articles and commentary on the advanced technique of determining paternity through the use of HLA tests. See, e.g., Polesky & Krause, Blood Typing in Disputed Paternity Cases--Capabilities of American Laboratories (1976), 10 Fam.L.Q. 287; Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing (1977-1978), 16 J.Fam.L. 543. In reference to this latter article, it should be pointed out that the author, Dr. Paul I. Terasaki, B.A.1950, M.A.1952, Ph.D.1956, Professor of Surgery, UCLA, member of editorial boards of several scientific journals including the Journal of Immunogenetics, is an internationally recognized authority on histocompatibility immunology and has written over three hundred fifty papers on HLA. ⁹

In resolving the issue raised by this appeal, we must answer two questions: first, whether prior to the enactment of R.C. 3111.09 and 3111.10, HLA testing results were prohibited as evidence to establish paternity by virtue of R.C. 3111.16; and second, if the first question is resolved in the negative, whether HLA testing procedures had advanced technically to the point that their scientific credibility was generally approved and, as such, whether these test results passed muster as being of bona fide probative value.

We answer the first question set forth above in the negative, and respond positively to the second.

There are a number of basic reasons for our conclusion that R.C. 3111.16 would not have precluded the introduction of HLA test reports in these types of cases in proof of paternity. First, the section refers to blood grouping tests, while HLA has generally been referred to as a tissue typing test and, even though the test is performed upon a portion of the blood, i.e., the white cells, it is not technically a blood grouping test. In this regard, it is notable that in the AMA-ABA Guidelines, supra, at pages 263-274, the six tests other than HLA are referred to as "blood group systems" and the HLA test is not.

One of the leading cases dealing with the admissibility of HLA tests to establish paternity, where there was the existence of a state law providing that blood tests may only be used as an exclusionary factor, was Cramer v. Morrison, supra. In such case, Justice Tamura stated, at pages 880-882, 153 Cal.Rptr. 865:

"In our opinion, the drafters of the Uniform Act did not have in mind tests of the nature of the HLA. * * * The Landsteiner series enjoyed currency when the...