Phillips By and Through Utah State Dept. of Social Services v. Jackson

• Citation: 615 P.2d 1228
• Decision Date: 22 July 1980
• Docket Number: No. 15618,15618
• Parties: Deborah J. PHILLIPS and State of Utah, By and Through UTAH STATE DEPARTMENT OF SOCIAL SERVICES, Plaintiffs and Respondents, v. Jeffrey Walker JACKSON, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 1228

615 P.2d 1228

Deborah J. PHILLIPS and State of Utah, By and Through UTAH STATE DEPARTMENT OF SOCIAL SERVICES, Plaintiffs and Respondents, v. Jeffrey Walker JACKSON, Defendant and Appellant.

No. 15618.

Supreme Court of Utah.

July 22, 1980.

Jonathon H. King of Utah Legal Services, Salt Lake City, for defendant and appellant.

Robert B. Hansen, Atty. Gen., R. Paul VanDam, Salt Lake County Atty., Gerald Conder, Deputy Salt Lake County Atty., Salt Lake City, for plaintiffs and respondents.

STEWART, Justice:

Plaintiffs initiated this lawsuit to establish defendant's paternity of a child born out of wedlock to plaintiff Phillips and to compel defendant to support the child. The case was tried to a court sitting without a jury. The court found the defendant to be the father and ordered support payments to be paid. The central issue on this appeal is whether the trial court erred in admitting the results of a relatively new scientific test known as the HLA (Human Leucocyte Antigen) test which purportedly proved the defendant to be the father of the child in this case to a 97% degree of probability. Defendant in addition contends that the trial court's finding of paternity was contrary to the weight of the evidence and that the cumulative effect of the trial court's evidentiary rulings constituted reversible error.

We reverse and remand for further proceedings because it was prejudicial error for the trial court to admit the HLA test results without a proper foundation as to the reliability of both HLA tests in general and the particular test in this case.

The testimony of plaintiff Phillips at trial was self-contradictory and also controverted by defendant. Phillips testified that she and the defendant had had sexual intercourse with one another three to four times a week from the middle of January 1975 to March 15, 1975. She first testified that she had not had intercourse with anyone else during that period, but later admitted to having had sexual relations with another man about January 15. Her child was born full term October 14, 1975. Phillips testified that she disclosed her pregnancy to the defendant in February 1975 and that she telephoned him on Thanksgiving Day of the same year to inform him of the birth. On both occasions, she claimed, he made admissions to her concerning his paternity. At trial defendant denied paternity and testified that he had not engaged in sexual intercourse with the plaintiff Phillips at any time. He also testified that Phillips had not informed him of her pregnancy until after the child was born when she telephoned him on Thanksgiving.

Prior to trial plaintiff Phillips, the child, and defendant had blood samples taken and submitted to an HLA tissue-typing test. ¹ The test indicated that the defendant was the father of the child in question.

As we understand the HLA test, it is based on the identification and typing of antigen markers found in white blood cells and other tissues of the body. In recent years a number of different tests or systems by one account as many as fifty have been developed to resolve questions of disputed parentage. Wiener and Socha Methods Available For Solving Medico-Legal Problems of Disputed Parentage, 21 J.For.Sci. 42, 61 (1975). The tissue-typing test is a genetic test based upon the chromosomal makeup of the test subject. Human body cells have 23 pairs of chromosomes which carry genetic markers called HLA antigens. An antigen is a substance which can stimulate antibody production when introduced into another individual. Antigens, which are produced under genetic control by genes, have been scientifically identified and classified. The basic theory is that by identifying the antigen markers of a child and of the mother, the child's antigen genetic markers which could only be inherited from the father can generally be determined, thereby identifying the father to a high degree of certainty. ² This is so because, it is claimed, most people are "rare" types in the sense that only about one out of a thousand people have a similar HLA type. Therefore, a rare type that occurs in a putative father and that also occurs in a child produces a high degree of probability that the putative father is in fact the father. See Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543, 544-45 (1977-78).

In the instant case, plaintiffs called two witnesses to establish the admissibility of the HLA test. Paula Simenson, a medical technologist with a B.S. degree in bacteriology, a chemistry minor, and 21/2 years' work experience, testified that she had witnessed the taking of the blood sample from the defendant. She traced the chain of custody of the blood sample. Over defendant's objection to the admissibility of the test evidence, she also explained how the test works and described the testing procedure in this particular case. Ms. Simenson conducted the laboratory work for the HLA test and prepared a work sheet which represented her findings. The work sheet was admitted into evidence over defendant's objection.

Plaintiff's second expert witness, Dr. Charles DeWitt, a pathologist, based his opinion as to the paternity of the father on the work sheet and on tables of percentages published by another person. Dr. DeWitt testified that the test has been used for approximately 15 years for "medical purposes." He did not specify for which medical purposes, although it appears that the use referred to by Dr. DeWitt was primarily for determination of tissue compatibility in organ transplantation procedures. Dr. DeWitt also testified without elaboration that the HLA test, when performed under certain conditions, is highly accurate and widely accepted.

Dr. DeWitt stated that the statistical probability that a particular man could be correctly identified as the father of a child ranged from 70% to over 90%, depending on the number of men with whom the mother had sexual intercourse at the time of ovulation. That is, assuming the mother had had sexual intercourse with 15 different men near the time of her ovulation, there would be a 70% likelihood that a person identified as the father was in fact the father. If the mother had had sexual intercourse with only two men during the same period of time, there would be a 97% likelihood that the man identified as the father by the test was in fact the father. Dr. DeWitt was not able to recall the title of the publication from which he obtained these percentages, nor did he give any information as to how widely accepted the tables were for determining paternity, what limitations or variables the tables were subject to, or the extent or nature of verification studies that had been done with respect to the tables. Although he stated that the "literature (was) full of reports" regarding the HLA test, he did not refer to any specific authority for his statements regarding the reliability of the HLA test or its alleged widespread use for determining parentage. Nor does it appear that he himself had done any research in developing the test or compiling and verifying the tables showing probabilities of parentage.

Dr. DeWitt concluded that the HLA blood test in the instant case did not exclude the defendant as the father, and that, based on calculated statistical probabilities taken from tables published in a book, there was a 97% degree of probability that defendant was in fact the father of plaintiff's child.

HLA tissue typing is a comparatively new form of test insofar as its use in the courtroom is concerned, and, according to our research, its admissibility has been dealt with by only a few appellate courts. In Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979), a California court of appeals reversed a trial court's refusal to admit the results of HLA testing in a paternity action. The trial court had ruled (1) that California statutory law allowed only evidence of an alleged father's nonpaternity and not evidence affirmatively showing paternity, and (2) that statistical evidence of this nature would have a prejudicial effect on the jury which would outweigh its probative value. In an evidentiary hearing before the trial judge, evidence was adduced that the HLA test indicated a 98.3% degree of probability that the defendant was the father. The trial court found that available data indicated the test was reliable but nevertheless held the test inadmissible for the reasons stated.

The court of appeals held that California law did not require "that the admissibility of scientific-test evidence must be predicated on a 100 percent degree of accuracy." (153 Cal.Rptr. at 872.) The court also held that California statutory law did not prohibit the admission of a test affirmatively tending to prove paternity. That law is based in part on the Uniform Act on Blood Tests to Determine Paternity which provides for the admission of tests such as the Landsteiner classification of red blood cell groups into evidence to exclude paternity. The Uniform Act also permits the admission of such tests, in the discretion of the trial court, to prove probability of paternity. However, in adopting the Uniform Act, California refused to adopt the latter provision. The court of appeals in Cramer held that the omission of the latter provision did not indicate a legislative intent to bar the admissibility of all tests which affirmatively identify a father. The court also noted that at the time the California Legislature adopted the Uniform Act the HLA test was not in use for paternity testing.

Finally, the court of appeals declined to address the issue as to whether the test had received general acceptance in the scientific community and therefore met the foundational requirements for admissibility. Accordingly, the court remanded for a determination of that issue. The court stated that the issue, being one of mixed fact and law, should be determined by the trial court on the basis of...