Tice v. Richardson, 53200

• Decision Date: 06 May 1982
• Docket Number: No. 53200,53200
• Parties: Jarrod W. TICE, a minor child, by his next friend and mother, Leslie A. (Tice) Horner, Appellees, v. David A. RICHARDSON, Appellant.
• Court: Kansas Court of Appeals

Page 490

644 P.2d 490

7 Kan.App.2d 509

Jarrod W. TICE, a minor child, by his next friend and mother, Leslie A. (Tice) Horner, Appellees, v. David A. RICHARDSON, Appellant.

No. 53200.

Court of Appeals of Kansas.

May 6, 1982.

Syllabus by the Court

1. Before an expert witness's opinion, based upon a new scientific test, may be received in evidence, it must be shown that the test is generally accepted as reliable within the expert's particular scientific field.

2. The human leucocyte antigen test is sufficiently established to have gained general acceptance in the particular scientific field to which it belongs as a reliable test to prove paternity.

3. The results of a human leucocyte antigen test are admissible in evidence to prove paternity, provided they otherwise meet relevant legal standards for the admission of scientific evidence.

4. The record in an action to determine paternity is reviewed, and it is held : The trial court did not err in admitting into evidence the opinion of an expert witness, based upon human leucocyte antigen tests, that defendant was the father of plaintiff.

William C. Wiswell, Olathe, for appellant.

Andrew R. Heyl, and Thomas F. McGraw, III, Overland Park, for appellees.

Before SWINEHART, P. J., ABBOTT, J., and HARRY G. MILLER, District Judge Retired, Assigned.

HARRY G. MILLER, District Judge Retired, Assigned:

Defendant has appealed from a judgment finding him to be the father of Jarrod Tice, the plaintiff. At issue is the admissibility in evidence of the results of human leucocyte antigen tests (herein referred to as HLA tests) to prove paternity.

At the trial, Leslie Horner, the plaintiff's mother, testified that Jarrod was born August 7, 1978, and that the date of conception was about the first of November, 1977. She was able to make this determination because of a missed menstrual period.

Leslie's testimony was that she met defendant in September of 1977, when she was sixteen and he was twenty years of age, and that she dated him until December of 1977. She testified that during this period she had intercourse with defendant numerous times and with no one else, except for one time on New Years' Eve, December 31, 1977, when she had intercourse with her present husband, Mike Horner.

Dr. Ronald Cross testified as an expert witness. He testified that he had taken blood samples from Jarrod Tice, Leslie Horner, Mike Horner, and defendant, David Richardson, and subjected the samples to HLA tests. On the basis of the test results, Dr. Cross was permitted to testify that the tests excluded Mike Horner as the father, but showed to a plausibility of 99.96% that defendant was the father of Jarrod. Dr. Cross stated that in his opinion, to a medical and scientific certainty, defendant was the father of plaintiff.

Defendant, in essence, contends that Dr. Cross should not have been permitted to testify as to the results of the HLA tests to prove paternity since the tests are relatively new, are not based on adequate data, and have not yet acquired unqualified acceptance in the scientific community. He further contends that the plausibility of parentage conclusion is based on statistical tables prepared by persons other than Dr. Cross who are not subject to cross-examination.

The HLA test for paternity is a relatively new test which compares genetic antigens identified in the child which could only have been received from the alleged father with the frequency with which these antigens appear in the random population at large.

The test for the admissibility of new scientific evidence was discussed in State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981), wherein the court stated "The general test for determining the admissibility of a new scientific technique was enunciated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). Simply stated, Frye requires that, before a scientific opinion may be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. Thus, according to the Frye standard, if a new scientific technique's validity has not been generally accepted or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence. Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).

"Frye v. United States, 54 App.D.C. 46 (293 F. 1013), was cited with approval in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). Frye and Lowry both involved the admissibility of the results of a lie detector examination. The Frye test has been accepted as the standard in practically all of the courts of this country which have considered the question of the admissibility of new scientific evidence."

It is the general acceptance in the expert's particular field of science which assures the validity of the scientific evidence, and in determining this factor the court may consider other evidence, such as the widespread and practical usages of the scientific principle involved and articles from reliable sources appearing in scientific journals and other publications. In Reed v. State, 283 Md. 374, 380, 391 A.2d 364 (1978), cited with approval in State v. Washington, 229 Kan. at 53, 622 P.2d 986, the court stated:

"On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. (437) at 440 (45 A.2d 85 (1945) ). Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved. People v. Law, 40 Cal.App.3d 69, 75, 114 Cal.Rptr. 708, 711 (1974)."

The HLA test has been described as an improved and reliable test for determining paternity in articles appearing in a number of medical and legal periodicals. As early as 1976, the American Bar Association approved HLA tests as a means of excluding the defendant from being the father, although the endorsement was not intended to exclude other tests. Abbott, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247, 256 (1976). The most recent commentary on this subject appears in Mendelson, From Here to Paternity, 9 Barrister 12 (1982).

Another author, discussing HLA testing and probability evidence with respect to the Frye standard on admissibility of scientific evidence, states:

"The current test for the admission of scientific evidence was established in 1923 in Frye v. United States. Frye requires that scientific evidence be 'sufficiently established to have gained general...