State ex rel. Hausner v. Blackman

• Decision Date: 15 July 1982
• Docket Number: No. 52771,52771
• Citation: 7 Kan.App.2d 693,648 P.2d 249
• Parties: STATE of Kansas, ex rel., Sheila HAUSNER, and Simon Hausner, by and through his mother and next friend, Sheila Hausner, Appellees, v. Paul BLACKMAN, Appellant.
• Court: Kansas Court of Appeals

Page 249

648 P.2d 249

7 Kan.App.2d 693

STATE of Kansas, ex rel., Sheila HAUSNER, and Simon Hausner,

by and through his mother and next friend, Sheila

Hausner, Appellees, v. Paul BLACKMAN, Appellant.

No. 52771.

Court of Appeals of Kansas.

July 15, 1982.

Review Granted Sept. 17, 1982.

Syllabus by the Court

1. Evidence of an alleged father's failure to be excluded by paternity exclusion blood tests is not proof of paternity. It is inadmissible in a paternity action.

2. Scientifically reliable evidence of an alleged father's likelihood of paternity meeting relevant legal evidentiary standards is admissible in a paternity action.

3. In a paternity action it is held evidence the alleged father was not excluded as the result of paternity exclusion blood tests was inadmissible, the admission of the evidence was prejudicial error, and there was insufficient evidence to support the verdict of paternity.

Louis S. Wexler, of Wexler, Wingfield & Zemites, Shawnee Mission, for appellant.

No appearance by appellees.

Before FOTH, C. J., and REES and SPENCER, JJ.

REES, Judge:

This is a paternity action. A jury found defendant to be the father of the child. Defendant appeals.

The initial issue on appeal is whether evidence concerning paternity exclusion blood testing was erroneously admitted to prove the single question in this case, that is, whether the defendant is the biological father of the child.

"In paternity exclusion testing, the presence or absence of certain genetically controlled factors ('markers') in the blood of the mother, child(ren), and alleged father(s) is determined. The patterns obtained are evaluated utilizing well-defined laws of inheritance to establish whether or not the genetic makeup of the alleged father would preclude his being the true father of the child in question.

"The term exclusion means it is genetically impossible for the alleged father to be the true biological father. Exclusions are of two general categories: direct exclusions and indirect exclusions. In direct exclusions, the child possesses a factor not present in either the mother or the alleged father. Since the factor was inherited from one of the child's parents and it was not inherited from the mother, it had to have been inherited from the father. But because the alleged father does not have the factor, another man must be the child's father. In indirect exclusions, the child does not possess a factor which the alleged father must contribute to his children." Stroud, Bundrant and Galindo, Paternity Testing: A Current Approach, 16 Trial 46 (Sept. 1980).

The challenged evidence is the testimony of plaintiff's expert witness, Malcolm L. Beck, a serologist who took and analyzed samples of blood of the child, his mother and defendant. The entire material testimony of the witness was as follows:

"Q. ... Mr. Beck, tell me what you do, generally, or what happens generally after a blood sample is taken.

"A. For the purpose of paternity testing?

"Q. Yes, sir.

"A. I take blood samples from each of the individuals. These samples are then tested for 'S' series of inheritable factors within a series of blood group systems. I then analyze the results to see whether these are consistent or not with paternity.

"Q. And did you do that, sir ... in this instance ....

"A. Yes, I did.

"Q. What examination did you make of the test results?

"A. I performed the tests myself, I analyzed the results and the conclusion I came to was that it was not possible to establish non-paternity in this case.

"Q. Now, is it possible with the kind of test that you did to establish paternity to a reasonable medical (certainty)?

"A. With this particular series of tests, this would be limited.

"Q. And what is the percentage or percentile or whatever on the type of test that you performed, Mr. Beck?

"A. In this particular series of tests I would anticipate an exclusion rate in the order of about seventy percent.

"Q. That is seven out of ten men you could exclude as possible fathers of this child involved?

"A. Given ten men falsely accused of a paternity, I could exonerate about seven of them.

"Q. Now, at the time that (the defendant and the mother) and the attorneys were there, did you make available or explain some further kind of tests that were available?

"A. It is always my practice to point out that with this particular series of tests we are limited to the seventy percent exclusion rate and I point out that if we can't arrive at a decision then, I would recommend that further testing be done to raise the level of exclusion in excess of ninety percent. This is a recommendation of the American Medical Association, American Bar Association Joint Report on Paternity Testing.

"Q. And what kind of test is this that is available to raise the exclusion rate to ... ninety percent?

"A. There is another series of inheritable factors that can be tested for. These are red blood enzymes and a series of serum proteins.

....

"Q. Were you referring to a Human Lucocyte (Antigen) Test?

"A. No, I wasn't.

"Q. You have one that is more scientific than the H.L.A. test?

"A. Not more scientific, as good as H.L.A. testing.

....

"Q. Basically, all you were able to determine from your tests ... was that it was not possible to establish that (the defendant) was not the father?

"A. Indeed.

....

"Q. You were able to establish that (the defendant) might be the father but you could not exclude him as the father, is that what you are saying?

"A. I was able to establish that I could not exclude him."

"One of the most prevalent confusions in paternity testing is the difference between the meanings of the terms 'probability of exclusion' and 'likelihood of paternity.' Probability of exclusion is the probability that the tests employed will exclude a falsely accused man. For example, if the probability of exclusion with the tests employed is 95 percent, of 100 non-fathers, 95 will be excluded and five will not be excluded. If the probability of exclusion with the tests employed is 95 percent and no exclusion is obtained, either the alleged father is the true father or he is one of the five out of 100 non-fathers that the tests would not exclude. Another way of stating this is that there is a five percent chance that the alleged father is not the true father, but the tests used would not exclude him.

"This does not mean that there is a 95 percent chance that the alleged father is the true father. Of course, the higher the probability of exclusion, the greater is the likelihood of paternity for a non-excluded man. (For example, if 90 percent probability of exclusion tests are administered to 100 non-fathers and the biological father, 90 non-fathers should be excluded and the biological father will be one of the 11 non-excluded test subjects. If 95 percent probability of exclusion tests are administered to 100 non-fathers and the biological father, 95 non-fathers should be excluded and the true father will be one of the six non-excluded subjects.) But there is no direct relationship between the probability of exclusion and the likelihood of paternity. Likelihood of paternity cannot be extrapolated from the probability of exclusion." 16 Trial at 47. (Emphasis added.)

Understanding of the last two quoted sentences may be aided by restatement of one example, expression of a second example, and additional comments. It does not follow from an alleged father's failure to be excluded by 90 percent probability of exclusion tests that there is a 90 percent chance he is the biological father. If man A is not excluded by 90 percent probability of exclusion tests and man B is not excluded by 95 percent probability of exclusion tests, it does not follow that man B is twice as likely to be the biological father. There is no direct or inferable comparative relationship of the likelihood of paternity for two or more non-excluded men, each of whom is the subject of different probability of exclusion tests. Likelihood of paternity cannot be extrapolated, inferred, projected or predicted from probability of exclusion. See Ellman and Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1140-1141 (1979).

"Seldom is there only one possible combination of factors which a man must possess to have produced the child in question. Furthermore, more than one man could have one of the correct combinations. It is therefore impossible to prove conclusively that a given man is the father of the child. It is possible, however, to calculate the likelihood of paternity, which is the percent probability that a non-excluded alleged father is the true father of the child. The likelihood of paternity takes into account the test results of the mother, child, and alleged father, and compares the alleged father with a random man of the same race." 16 Trial at 46-47. (Emphasis added.)

The generally accepted recommendation and practice of the scientific community is to calculate likelihood of paternity for a non-excluded alleged father only if the serologic tests used for exclusion of paternity have a cumulative mean probability of exclusion of 90 percent or more. Abbott, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q., 247, 256-258 (1976); 16 Trial at 48; 54 N.Y.U.L.Rev. at 1161.

When the evaluated genetic markers and patterns for a non-excluded alleged father are obtained from blood tests having a 90 percent or higher cumulative exclusion probability, the likelihood of paternity for that individual is calculated by use of Bayes' Theorem as applied by Essen-M oller. Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543, 544 (1977-78); 10 Fam.L.Q. at 261; 54 N.Y.U.L.Rev. at 1146-1149.

It is through compliance with these steps that otherwise legally satisfactory opinion testimony of likelihood of paternity is rendered admissible...