Willerick v. Hanshalli

• Decision Date: 19 October 1984
• Docket Number: Docket No. 73259
• Citation: 136 Mich.App. 484,356 N.W.2d 36
• Parties: Marcia WILLERICK, Plaintiff-Appellee, v. Ali HANSHALLI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 36

356 N.W.2d 36

136 Mich.App. 484

Marcia WILLERICK, Plaintiff-Appellee, v. Ali HANSHALLI, Defendant-Appellant.

Docket No. 73259.

Court of Appeals of Michigan.

Submitted May 4, 1984.

Decided Aug. 6, 1984.

Released for Publication Oct. 19, 1984.

John L. Livesay, Pros. Atty. and Thomas J. Trzcinski, Asst. Pros. Atty., Coldwater, for plaintiff-appellee.

Sam Friia, Albion, for defendant-appellant.

Before MacKENZIE, P.J., and J.H. GILLIS and SULLIVAN ^*, JJ.

MacKENZIE, Presiding Judge.

In this paternity action, defendant appeals as of right from an order of filiation entered by the trial court after a jury had determined that defendant is the father of plaintiff's daughter. The sole issue before us is whether the trial court erred in admitting the depositional testimony of a Dr. Kately and an exhibit relating the results of a human leukocyte antigen (HLA) blood test, which results indicated a 95.1 percent likelihood that defendant was the father. Defendant argues on appeal, as he did below, that plaintiff had not laid a sufficient foundation for the admission of this evidence. We agree.

Since its amendment by 1982 P.A. 129, M.C.L. 722.716(1); M.S.A. Sec. 25.496(1) expressly has provided for HLA testing of the mother, child, and alleged father in paternity proceedings pursuant to court order, as was done in this case. Furthermore, M.C.L. Sec. 722.716(4); M.S.A. Sec. 25.496(4) provides as follows:

"(4) The result of a blood or tissue typing test, and if a determination of exclusion of paternity cannot be made, a calculation of the probability of paternity made by a person the court determines is qualified as an examiner of blood or tissue types based on the result of a blood or tissue typing test shall be admissible in evidence in the trial of the case."

The statute now permits admission of positive test results indicating the probability of paternity, and not merely negative test results excluding the defendant as was the case prior to the 1982 amendment. While the statute as amended does not set forth any foundation requirements for admission, except that the probability of paternity be calculated by a person deemed qualified by the court, we do not believe that the Legislature intended that no other foundation requirements be applied.

To our knowledge, no prior appellate decision of this jurisdiction has addressed what foundation requirements must be met for admission of HLA test results in a paternity action. In cases involving admissibility of blood tests for alcohol, this Court has required the following foundation requirements:

" '[T]he party seeking introduction must show (1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments used were sterile, (5) that the blood taken was properly preserved or kept, (6) and labeled, and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons under whose supervision the tests were conducted be established.' " Gard v. Michigan Produce Haulers, 20 Mich.App. 402, 407-408, 174 N.W.2d 73 (1969), lv. den. 383 Mich. 777 (1970) (quoting Lessenhop v. Norton, 261 Iowa 44, 153 N.W.2d 107 [1967]). See also People v. Cords, 75 Mich.App. 415, 427, 254 N.W.2d 911 (1977); Clark v. Flint, 60 Mich.App. 364, 367, 230 N.W.2d 435 (1975); Rose v. Paper Mills Trucking Co., 47 Mich.App. 1, 4, 209 N.W.2d 305 (1973), lv. den. 390 Mich. 802 (1973).

We find we cannot simply impose these same requirements to HLA blood tests since not all of the requirements are applicable in the context of a paternity suit. For example, while (1) above regarding the timeliness of the blood test is relevant where a test for alcohol is conducted, it has no application to a test for paternity. Also, (3) above does not wholly comport with the paternity statute, since M.C.L. Sec. 722.716(2); M.S.A. Sec. 25.496(2) states simply that the test be done by a person determined by the court to be qualified. Furthermore, with regard to (4) and (5) above, we are without knowledge as to whether sterility of the instruments, or any particular mode of storing the blood samples, is a prerequisite to accurate HLA test results. We question the pertinence of (8) above to paternity suits, since the Legislature in M.C.L. Sec. 722.716(1); M.S.A. Sec. 25.496(1), as amended, has seen fit to specifically describe the types of paternity blood tests that are acceptable and we are unaware as to whether differing methods exist as to each type of test. Finally, as to (9) above, we question the need for the identity of those who supervised the test except to the extent of showing compliance with M.C.L. Sec. 722.716(2); M.S.A. Sec. 25.496(2), which requires that the paternity calculation be done by a person determined qualified by the court.

Nevertheless, we believe certain minimal foundation requirements are necessary to insure reliability of the test results and relevancy under MRE 401. To this end, we hold that plaintiff was required to show that the blood tested was in fact that of the defendant, the plaintiff, and the child, and that the test results were based on reliable blood samples. See People v. Cords, supra, 75 Mich.App. p. 428, 254 N.W.2d 911. This includes establishing a chain of identification from the time the blood samples are taken to the time the samples are analyzed:

" 'Where it "appears that the various steps in the keeping and transportation" of the specimen, part, or object from the time it was taken from the body until the time of analysis "were not traced or shown by the evidence" the identification of the thing analyzed is insufficient and the presumptions that official duty is properly performed and that public records are correct will not supply missing links in the chain.' " Bauer v. Veith, 374 Mich. 1, 3, 130 N.W.2d 897 (1964) (quoting from 21 A.L.R.2d 1216, Sec. 4, p. 1220).

Such a chain of identification must be shown by way of testimony based on personal knowledge. Bauer, supra; MRE 606.

In the present case, the sole testimony presented was that of Dr. Kately, who indicated that he only compiled and analyzed the test results. The blood samples were drawn, and the testing was done, by other department personnel. Dr. Kately could only testify as to the usual methods used by his staff personnel to verify the identity of the persons from whom the blood samples were drawn and to identify the samples as belonging to those persons; Dr. Kately had no personal knowledge as to whether those methods were indeed employed in the present case.

Plain...