Paternity of A.M.C., In re, 87-0084
| Decision Date | 24 June 1988 |
| Docket Number | No. 87-0084,87-0084 |
| Citation | 144 Wis.2d 621,424 N.W.2d 707 |
| Parties | In re PATERNITY of A.M.C. State ex rel. N.A.C., Respondent, v. W.T.D., Appellant. |
| Court | Wisconsin Supreme Court |
Robert J. Kennedy and Hammett & Williams, S.C., Delavan, for appellant.
Angela Sutkiewicz, Asst. Dist. Atty., Elkhorn, for respondent.
This is an appeal from a judgment of the circuit court for Walworth county, Circuit Judge John R. Race, declaring W.T.D. to be the father of A.M.C., a minor. 1 The court of appeals certified the appeal pursuant to sec. 808.05(2) and sec. (Rule) 809.61, Stats.1985-86.
The court of appeals certified the following question: "Did the trial court err in relying upon the results of an HLA test, in the absence of independent evidence, to determine that the mother and the alleged father had intercourse during the conceptive period?" 2
We disagree with the court of appeals that the case presents this question. The circuit court did not rely on the results of the HLA test to determine whether the mother and putative father had intercourse during the conceptive period.
Rather, this case presents two issues. The first issue is whether the circuit court's determination of paternity should be reversed because the circuit court misinterpreted a statistical probability that an expert witness derived from the HLA data and then relied on this erroneous interpretation of the statistic to decide the issue of paternity.
The expert testified that the odds against the mother choosing two males simultaneously from the population at large who, according to the HLA tests, could be the father of the child were 1 in 580,000. The circuit court mistakenly interpreted this testimony to mean that the odds against the mother choosing one male biologically able to be the father of the child were 1 in 580,000. The circuit court then relied on this mistaken interpretation of the expert's one in a half-million calculation to find that W.T.D. lied when he denied having had intercourse with the mother during the conceptive period.
We conclude that the circuit court erroneously interpreted the statistical testimony of the expert witness and that the circuit court afforded this erroneous interpretation substantial weight. Because the circuit court's reliance on this erroneous interpretation permeates the circuit court's determination of paternity, we reverse the judgment and remand the case to the circuit court. 3
The second issue is whether the fact-finder, be it circuit judge or jury, can decide, as this circuit court did, that the date of sexual intercourse between the mother and putative father is a date other than one claimed by either of the parties. W.T.D. argues that the circuit court's finding that conception occurred on a date other than the one the mother asserted cannot be sustained by this court because the finding is contrary to the great weight and clear preponderance of the evidence or, stated another way, clearly erroneous. State ex rel. Skowronski v. Mjelde, 112 Wis.2d 110, 114, 332 N.W.2d 289 (1983), citing State ex rel Isham v. Mullally, 15 Wis.2d 249, 255, 112 N.W.2d 701 (1961); sec. 805.17(2), Stats.1985-86. 4
We conclude that the circuit court could believe the mother's claim that she had intercourse with the defendant and could reasonably infer that the mother was mistaken about the date and that intercourse occurred at another time. Because the circuit court did not make these inferences and instead based its findings on its erroneous interpretation of the statistical evidence, we reverse the judgment.
The following facts were elicited at trial.
The mother testified that she had intercourse only once with W.T.D. from January through April 1985 and that was on March 9, 1985. She testified she was certain of the date of intercourse because she signified the act with a "W" on her calendar. She also testified that from January 1985 through April 1985 she did not have intercourse with anyone other than W.T.D.
W.T.D. testified that he did not have sexual intercourse with the mother from January through April 1985. 5
The mother gave birth on October 27, 1985, to a child weighing 3 pounds, 9 ounces. Because the child's birth weight was less than 5 pounds, 8 ounces, 6 the state attempted to prove the conceptive period through the testimony of doctors. A specialist in obstetrics and gynecology, Dr. Wetzler, testified that the baby's gestational age was between 31 and 33 weeks and that in his opinion to a reasonable degree of medical certainty the baby was conceived between March 10 and March 24. He testified that the mother had been in his office for a pregnancy test on March 28, 1985, and that she had tested negative. The manufacturer guarantees that the pregnancy test is 100 percent accurate if the woman is at least ten days pregnant. According to the test results and the manufacturer's guaranty, the child was conceived after March 18.
On cross-examination and examination by the court, however, Dr. Wetzler testified that the pregnancy test made it very unlikely that the child was conceived before March 18, 1985, and that it would be extremely rare for a sperm to survive from March 9 to March 18 in the woman's body; 7- to 10-day survival rates are rare. On redirect and over strong objection, the doctor testified that it was possible the child was conceived on March 9, 1985.
Dr. Schneider, who assumed medical responsibility for the child hours after birth, testified that, according to the "obstetrical wheel," a child conceived on March 9 and born on October 27 and would have a gestational age of 35 1/2 weeks. He testified further that in his medical judgment, this child's gestational age could not have been 35 weeks at birth. Initially he assessed the child's gestational age to be 30 to 32 weeks. His final estimate of the child's gestational age appears to be 31 to 32 weeks. Finally he explained that a gestational age of 34 weeks at birth places the child's date of conception on March 17-18 and that a 32-week gestational age at birth places conception on March 31.
The "one in a half million" statistical evidence in question on appeal was presented by Dr. Barwick, a human geneticist and the state's expert witness on HLA testing. 7 We summarize his testimony to demonstrate how he used the statistic.
Dr. Barwick explained that the paternity index in this case is 764 to 1. This index, he said, means that out of every 765 males chosen from the population at random, odds are that one of them would be genetically capable of fathering the child in question. Dr. Barwick further explained that if 1,530 males were selected at random, chances are that two of them would be genetically capable of fathering the child.
Dr. Barwick further testified that the chances of a woman choosing two males on the first try who would be able to contribute the necessary genetic characteristics to produce the child are over 580,000 to 1. He did not explain how he reached this figure. Apparently this figure is generated as follows: Because 1 in 765 men chosen at random could be the father, the chances of simultaneously selecting two men at random who could be the father would be 1 in 765 and 1 in 765 or 1 in 7652, which is approximately 1 in 580,000.
The circuit court used this "1 in 580,000" statistic to decide whether W.T.D. had intercourse with the mother during the conceptive period (as calculated by the doctors) and whether he was the father of the child.
In summing up the evidence at the close of trial, the circuit court found that a 3-pound, 9-ounce baby was born out of wedlock on October 27, 1985; that the child was conceived on approximately March 31, 1985; and that W.T.D. and the mother had intercourse on or about that date. The circuit court stated that it disbelieved the mother's testimony about the date of intercourse being March 9, 1985, and it disbelieved W.T.D.'s denial of sexual intercourse with the mother from January through April 1985, concluding that "the odds were simply not there." The circuit court found that "the possibility or odds that [the mother] could pick a man other than the biological father and come up with the putative father is about one chance in a half-million." Later, the circuit court stated that it disbelieved W.T.D.'s testimony "because there's only one chance in 580,000 that he could be chosen at random to be the father."
The court of appeals described the issue as whether the circuit court erred in relying on the results of the HLA test. As we stated previously, the appeal does not present this issue. The circuit court did not rely directly on the results of the test. Rather it relied exclusively on a statistic that it mistakenly derived from the testimony.
The circuit court interpreted the expert as saying that the odds that the mother in this case could correctly select at random a man who could be the biological father are about one chance in a half-million. This interpretation is inconsistent with the expert's testimony. The expert testified that the odds of choosing a man at random with the genetic make- up to produce the child in question are 765 to 1, not 580,000 to 1.
The expert testified that the odds against randomly choosing two males who could potentially be the father are astronomical. The statistic emphasizes the unlikelihood that a woman could choose two putative fathers simultaneously and on the first try. The statistic cannot be used to conclude, as the circuit court did, that the mother had only one chance in a half-million of choosing at random a man who biologically could be the father. The astronomical odds against the mother simultaneously and on the first try selecting two putative males from the population at random is not probative on the issue of whether W.T.D. is the father.
The circuit court relied solely on the 1 out of 580,000 statistic to decide the credibility of ...
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