State By and Through Utah State Dept. of Social Services v. Woods
| Decision Date | 02 September 1987 |
| Docket Number | No. 860163-CA,860163-CA |
| Citation | 742 P.2d 118 |
| Parties | STATE of Utah, By and Through UTAH STATE DEPARTMENT OF SOCIAL SERVICES, and Mary Turpin, Plaintiffs and Respondents, v. Edward L. WOODS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Mark S. Miner, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., David Tibbs, Asst. Atty. Gen., for plaintiffs and respondents.
Before ORME, GREENWOOD and BILLINGS, JJ.
Appellant Woods seeks reversal of the trial court's holding that he was the father of respondent Mary Turpin's child. Woods contends the court erred in accepting an expert's testimony on the probability of Woods' paternity. Woods claims that the court should not have received the expert's testimony on the results of the HLA blood test because the testimony failed to meet the foundational standards required in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980).
A child was born to Mary Turpin on July 22, 1983. Turpin testified at trial that appellant Woods was the father. She testified that she had been dating Woods since the summer of 1982 and that she had intercourse with Woods and no others during the time she could have conceived her child. Woods denied paternity and claimed that he did not have access to Turpin during this period because he had injured his foot and was in the hospital. Subsequent testimony revealed that he had received the injury when kicking in the window of Turpin's family home. Although hospitalized for a time, he was not totally immobilized. The record also indicated that conception may have occurred before the injury.
Turpin testified that in her ninth month of pregnancy she was diagnosed as having herpes. Woods claimed that since he had not contracted herpes, this was further proof that he was not the father. No expert was called to testify as to the relevance of Turpin's herpes, specifically as to when Turpin became contagious and whether Woods could have had intercourse with her without contracting the disease.
The trial court found Woods' testimony at trial to be generally inconsistent and lacking in credibility. Woods testified that the last time he had had intercourse with Turpin had been in July 1982. Woods testified that in November he was in a body cast and unable to have sexual intercourse. On cross examination Woods conceded that only his foot was in a cast.
Respondent called Dr. Charles DeWitt, an expert in interpreting Human Leucocyte Antigen (HLA) blood tests, to testify as to the results of the tests performed on Turpin, Woods, and one Carlson, Turpin's present husband. Dr. DeWitt is a pathologist at the University of Utah with a Ph.D. in immunology, who testifies some 40 times a year on HLA results.
The HLA test is an antigen marker determination which reveals possible paternity by identifying four antigens in the baby, mother and alleged father. Through a process of matching the expert can exclude a party or predict the probability of paternity of any non-excluded male. Based on Woods' antigen pattern, Dr. DeWitt testified that there was a 94% probability that Woods fathered Angela Turpin.
Woods contested the use of the results of the HLA blood test because he did not think that Dr. DeWitt had been qualified under the standards set forth in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980). He also objected because Woods' HLA test had been done before the birth of the Turpin baby in conjunction with another paternity suit. (DeWitt testified that results from an HLA test remain constant over one's life so the date of testing is irrelevant.)
The trial court concluded that Woods was the natural father of Turpin's child, and that he was liable for the reasonable medical expenses relating to the pregnancy and birth and for the necessary care and maintenance of the child. There are two key issues raised on appeal: First, whether the HLA test is generally reliable, and second, whether a proper foundation was laid to admit the results of the particular HLA test in this case.
In 1980, the Utah Supreme Court concluded that Utah Code Ann. § 78-45a-10, a provision of the paternity act concerning use of blood tests, does not "preclude the admissibility of HLA tests if they otherwise meet the relevant legal standards for the admission of scientific evidence." Phillips v. Jackson, 615 P.2d at 1233. In Phillips, the Utah Supreme Court discussed what standard should determine admissibility of scientific evidence. It acknowledged that a scientific principle is admissible if it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. Noting that this can be an overly rigorous test, the Court stated that the Id.
To insure this reliability, the Court identified six elements that the HLA test must meet in order to be admissible. The first two elements, which are aimed at the general reliability of the HLA test, require the plaintiff to prove: (1) the correctness of the genetic principles underlying the test for determining paternity and (2) the accuracy and reliability of the methods utilized in application of the principle to determine paternity. See id. at 1235. The remaining four elements refer to the foundation that must be laid for a particular HLA test and are discussed later.
In the few years since Phillips was decided, the reliability of the HLA test has been refined to the extent that it is now deemed to be the "most precise method of determining paternity in general use today." S. Kolko, Admissibility of HLA Test Results to Determine Paternity, 9 Fam.L.Rep. (BNA) 4009 (Feb. 15, 1983). Trained experts can now show that a particular man fathered a child with up to a 99% degree of probability when the HLA test is used in conjunction with other tests. Id. By 1983, thirty-five states and the District of Columbia, either by statute or by case law, made the results of HLA testing admissible in determining paternity. 1 Id. Five other states allow the use of HLA results to exclude a putative father. Id. at 4012. As this data demonstrates, courts have moved from an initial position of mistrust of serologic tests to the present stage of taking "judicial notice of the scientific acceptance" of such tests. E. Cleary, McCormick on Evidence 619 (1984).
It is clear the HLA test is no longer in the experimental stage, and that it meets the two general reliability elements of Phillips.
By concluding that the test provides accurate and reliable genetic "maps," we do not mean to imply that this test will be determinative of the putative father's paternity. The HLA test is but one piece of evidence, and the weight accorded to this evidence lies within the sound discretion of the trial court. 2 See Everett v. Everett, 150 Cal.App.3d 1053, 201 Cal.Rptr. 351 (1984); Dept. of Social Servs. v. Bacot, 280 S.C. 485, 313 S.E.2d 45 (S.C.App.1984).
To assist the trier-of-fact in understanding the highly technical HLA test results and the accompanying statistical probabilities the results generate, Phillips requires the testimony of a qualified expert witness. 615 P.2d at 1236. The second issue we address pertains to the foundation that must be laid in order to qualify this witness and permit his testimony and the test to be admitted. 3 First, the qualifications of necessary witnesses must be established. Id. at 1235. Second, it is necessary to establish that the actual method employed and the particular test used in a given case were performed in accordance with proper procedures and with proper materials and equipment. Id.
In addition to these elements, Phillips requires the foundation to include, thirdly, the effect of variables which occur in persons of different nationalities or ethnic origins that would influence the accuracy of the test, and, fourthly, any other factors that might tend to invalidate the test or significantly change the probability of accuracy. Id.
The Court in Phillips held that the appellant failed to properly qualify his expert witness, who happens to have been Dr. DeWitt, primarily because his testimony was too vague and too general. Id. at 1236-37. The Court found that Dr. DeWitt did not focus specifically on paternity identification that he did not indicate how the table of percentages on paternity probability were computed; that his testimony did not adequately discuss the significance of the particular genetic markers he relied on; that he did not appear to have the particular knowledge and training required to interpret HLA test results; that his testimony did not supply information of the general acceptance of the HLA test; and that his lab technician, who also testified, did not qualify as an expert to interpret the test results, although she could testify as to the chain of custody of the blood samples drawn from the parties. Id. at 1236-37. As a consequence, the Court held in Phillips that the HLA test was without proper foundation and its admission constituted prejudicial error. Id. at 1238.
An examination of the record in this case shows that the requirements for a proper foundation, as identified in the Phillips case, were met.
The initial foundation requirement in Phillips is establishing the qualifications of the expert. Dr. DeWitt testified that he has a Ph.D. in immunology and is the associate chairman of the Department of Pathology at the University of Utah where he teaches immunology to medical students. He also heads the HLA typing laboratory at the medical center. In 1964 Dr. DeWitt began a study of HLA typing in connection with the clinical transplantation of organs and tissues...
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