Ross v. Moore

• Decision Date: 07 March 1990
• Docket Number: No. CA,CA
• Parties: Odis ROSS, Administrator of the Estate of Robert Ross, Jr., Appellant, v. Dorothy MOORE, Appellee. 89-270.
• Court: Arkansas Court of Appeals

Page 243

785 S.W.2d 243

30 Ark.App. 207

Odis ROSS, Administrator of the Estate of Robert Ross, Jr., Appellant, v. Dorothy MOORE, Appellee.

No. CA 89-270.

Court of Appeals of Arkansas En Banc.

March 7, 1990.

Felver A. Rowell, Jr., Morrilton, for appellant.

Dale Lipsmeyer, Morrilton, for appellee.

COOPER, Judge.

This is the second appeal in this paternity case. In the first appeal, Ross v. Moore, 25 Ark.App. 325, 758 S.W.2d 423 (1988), we reversed the trial court's finding that the decedent, Robert Ross, was the putative father of the appellee's two children because the appellee had not proven her case by clear and convincing evidence. Although a blood test had been performed in connection with those proceedings, the results were not made part of the record.

In the second trial, the blood test report from National Paternity Laboratories, Inc., was introduced into evidence over the objection of the appellant. At the conclusion of the hearing, the circuit court again found that the decedent was the putative father. From that decision, comes this appeal.

The appellant argues that the evidence was insufficient to establish paternity, that the trial court erred in allowing the blood test report to be admitted into evidence, and that the trial court erred in allowing the decedent's former attorney to testify. We agree that the trial court erred in permitting the blood test report to be introduced, and we reverse and remand.

At the second hearing, a report from National Paternity Laboratories, Inc., was admitted into evidence. This report was addressed to Joe Cambiano, the decedent's former attorney. It stated:

On August 25, 1983 blood specimens were received from the Child Support Enforcement Unit on Robert Ross (alleged father), Dorothy M. Moore (presumed mother), Tracy J. Moore (child # 1) and Dexter Moore (child # 2) for the purpose of paternity exclusion studies. Completed identification forms of all parties are in our files.

The report stated further that the plausability of paternity for Tracy was % 98.39 and for Dexter % 96.7. The report concluded that it was very likely that both children were fathered by the decedent. The report was signed by Laboratory Director Randall A. Smith, Ph.D., and his signature was notarized.

The appellant objected to the introduction of this report because it did not reflect that it was performed by a duly licensed physician appointed by the court in accordance with Ark.Code Ann. § 9-10-108 (1987). The appellant also objected because

[H]e does not show that the blood in these samples were drawn by the physicians or person qualified to do so to administer the test. Without that foundation, your honor, and without that testimony the report itself is not subject to being introduced.

Later in the hearing, the appellant again objected on the grounds that the report did not show that the people who conducted the test were qualified, and that a proper foundation had not been laid. The appellant then referred to subsection § 9-10-108(b), which was in effect at the time of the hearing, and which provided that:

(b) The tests shall be made by a duly qualified physician or physicians, or by another duly qualified person or persons, not to exceed three (3), to be appointed by the court.

Subsection (c) further provided that:

(c)(1) The results of the tests shall be receivable in evidence.

(2) A written report of the test results by the duly qualified expert performing the test, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert in those cases where he has performed the blood tests, the party shall have him subpoenaed within a reasonable time prior to trial.

(3) The experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.

(Cf. Ark.Code Ann. § 9-10-108 (Supp.1989)) (changing prior law). The appellant contends that it was error for the trial court to admit the report into evidence because no foundation was laid pursuant to subsection (b). Although the circuit court has broad discretion in determining whether such reports should be admitted into evidence, Chandler v. Baker, 16 Ark.App. 253, 700 S.W.2d 378 (1985), we hold that the trial court abused its discretion in this case.

Prior to the adoption of Ark.Code Ann. § 9-10-108, this report would have been considered inadmissible hearsay, and in order to be admissible and fall into one of the exceptions to the hearsay rule, certain foundational requirements must have been met. Shipley v. State, 25 Ark.App. 262, 757 S.W.2d 178 (1988). For example, in order for this evidence to fall into the medical diagnosis exception, the proponent would have to show that the statements were made for the purpose of medical diagnoses or treatment. Ark.R.Evid. 803(4). Other medical records may be admitted where there is a showing of trustworthiness or authenticity, see Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979), or where the author of the medical report is in court to testify and is subject tocross-examination. See Southern Farm Bureau Casualty Ins. Co. v. Pumphrey, 256 Ark. 818, 510 S.W.2d 570 (1974).

The purpose of § 9-10-108 is to relax these foundational requirements and make it less difficult to introduce paternity testing results into evidence. However, to insure the reliability of this type of testing, the foundational prerequisites in the statute must be met. See Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). In light of the fact that recently developed genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits, we do not think that strict adherence to the statutory prerequisites is unreasonable.

In Tolhurst v. Reynolds, 21 Ark.App. 94, 729 S.W.2d 25 (1987), we upheld the trial court's refusal to admit a similar blood test report because the persons testifying about the report were not the persons who actually conducted the test. In that case the person supervising the tests and the person who verified the results testified, but both admitted that they did not actually perform the tests. We held that the person making the test must make the verification on the test. Since that was not done in this case we must reverse and remand.

In this case, the appellee has totally failed to establish the statutory foundation which is a prerequisite to admission into evidence. There is nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Although the report is signed by Dr. Smith and states that Dr. Smith is the laboratory director, there is nothing in the report to indicate that Dr. Smith was the person who performed the test, or that he was a qualified expert. On this record we cannot say that a proper foundation was laid. See Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979); Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972).

The appellant also argues that the trial court erred in allowing the decedent's former attorney to testify because it violated the lawyer-client privilege set out at Ark.R.Evid. 502(b). Mr. Cambiano testified that the paternity report came from his files. He also testified that the decedent admitted to him that he had fathered the children, that he had visited the children and had taken them gifts, and that he was willing to support them but did not want to be forced to by the courts.

The appellant first asserts that it was error for the trial court to introduce the report into evidence because it came from Mr. Cambiano's files and was privileged. We address this issue and the appellant's issue concerning Mr. Cambiano's testimony because they are likely to recur in another trial.

The general rule of attorney-client privilege is set forth in Ark.R.Evid. 502(b):

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

In Ark.R.Evid. 502(a)(4), a "representative of the lawyer" is defined as "one employed by the lawyer to assist the lawyer in the rendition of professional services." Furthermore, the privilege may be claimed by the personal representative of a deceased client. Ark.R.Evid. 502(c).

The communication from National Paternity Laboratories to Mr. Cambiano was not a communication protected by the attorney-client privilege. Mr. Cambiano testified that the blood tests were ordered by the county court and clearly National Paternity Laboratories did not qualify as a "representative of the lawyer." We cannot say that the circuit court erred in admitting Mr. Cambiano's testimony about the report or in admitting the report into evidence.

The appellant also contends that it was error to allow Mr. Cambiano to testify about what the decedent told him. The appellee argues that there is an exception to the attorney-client privilege in accordance with Ark.R.Evid. 502(d)(2) which provides in pertinent part:

(d) Exceptions. There is no privilege under this rule:

. . . . .

(2) Claimants through same deceased client. As to a communication relevant to an issue between par...