From the Circuit Court of Clay County; Civil Appeal; Judge R. Kenneth Elliott; Reversed and Remanded
Before Shangler, P.j., Pritchard, Dixon, JJ.
The opinion of the court was delivered by: Shangler
The plaintiff Imms sought a declaratory judgment that the defendant Clarke was the natural father of the infant Heather Elizabeth Imms, and to adjudicate support for the child. The jury returned a verdict that the defendant Clarke was the natural father of the child Heather and awarded a sum for her support.
The evidence was that the mother, Mary Imms, was never married and Heather was her only child. On September 2, 1978, Mary Imms accepted an invitation to the Lake of the Ozarks for a Labor Day weekend with friends. There she was introduced to James Clarke, and the following evening she accompanied him on a boat ride around the lake. The defendant stopped the boat outside a cove and they engaged in an act of sexual intercourse. The plaintiff Imms returned to the lake for the next few weekends and, on each occasion, shared the Clarke cabin and continued the sexual practice. The defendant Clarke then suggested they cool their ardor and she did not return to the lake until November. Around Thanksgiving of 1978, the plaintiff Imms discovered she was pregnant. She telephoned Clarke who at first responded that "he would not shirk his responsibility," and that they should talk about it. Clarke was "very understanding" during that encounter: "He said he would do everything he possibly could to help me financially, emotionally." Clarke soon began to waver: "Jim started saying that he no longer wanted the responsibility. He said he couldn't handle it -- he didn't want to accept it; I would just have to do it on my own." It was her testimony that for a period of at least eleven months before the birth of Heather, she was intimate with only the defendant Clarke. The child was born on June 13, 1979. It was the Imms testimony that Clarke never denied the paternity of the child.
The defendant Clarke acknowledged the intimacy with Mary Imms on September 3, 1978, and that thereafter they had sexual relations on at least five separate occasions. He repeatedly denied that he was the father of the child. He testified he never sent the child gifts, nor money, nor any other token for support, nor did he ever see the child other than on the occasion of the court proceeding.
The only other testimony was on behalf of the mother. It was Dr. McCalmon, an expert in immunology with extensive experience in the use of the Human Leukocyte Antigen test to match donor and recipients for organ transplants. The witness had conducted more than ten thousand of such tissue matchings. HLA is a test also used to determine paternity. The witness subjected the blood samples taken from the mother, the child Heather, and putative father Clarke to the HLA test procedure. The expert explained that the HLA test maps the genetic material of the child - twenty-three pairs of chromosomes, twenty-three transmitted by each parent - through the antigens in the white blood corpuscles. The HLA system determines genes and their location on chromosomes. The system uses different locations labeled A, B, C, D and DR. The A, B, and C loci were tested and each demonstrated that the defendant Clarke and the child Heather shared the paternal haplotype [inherited pairs of antigens]. [The expert discarded the CX combination found as not "that discriminating" under present test techniques. The D and DR loci, also, were not tested for other reasons.] *fn1 The expert testified that any among some 170,000 combinations of [other than those identified in the child] antigens, if found in the father would have conclusively excluded paternity. The expert then applied the Bayes Theorem [a device of statistical interpolation we discuss more fully] to a random sampling of Caucasian population [the Clarke racial trait] to arrive at the 89.1136 percent probability that the defendant was the father of the child Heather. *fn2 The court allowed the jury to receive this evidence above objection, and the defendant appeals its competency.
The complaint the father makes on appeal is that the opinion by expert McCalmon that there was an 89.1136 percent possibility that Clarke was the biological father of the child Heather was not admissible because the HLA tissue typing test is not a generally accepted procedure in the scientific community, and that otherwise, the factual basis for the opinion was not established in evidence. We defer response to the contention that the HLA test does not yield a reliable Conclusion of probability of paternity, and turn first to the subsumed contention - that the HLA test does not stand in the scientific community.
It is the rule that results of scientific tests and expert opinions derived from them are admissible only if the scientific principle involved is considered generally reliable and accurate by the scientific community concerned. State v. Johnson, 539 S.W.2d 493, 501[1-3] (Mo. App. 1976); Frye v. United States, 293 F. 1013 (D. C. Cir. 1923). The reliability of blood tests to exclude parentage - that is, to prove nonparentage - in certain cases of blood groups is unquestioned in the scientific world and is admitted for that purpose in our courts. State v. Summers, 489 S.W.2d 225, 228 (Mo. App. 1972). These tests - six basic procedures, the ABO, Rh, Kell among them - involve only a small number of variable factors, however, so that the cumulative possibility of exclusion of paternity amounts to only 63 to 72 percent - depending on the race. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 257 (1976); Accord Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865, 867 (1979); T.A.L.S. v. R.D.B., 539 S.W.2d 737, 739[7,8] (Mo. App. 1976). HLA tests, as we noted, involve a much more varied set of factors - the antigens [genetic fingerprints] in the white blood cells - so that the derived percentile of probability becomes more conclusive. Thus, the HLA white blood cell procedure used conjunctively with the red blood group systems [ABO, Rh, Kell and the others] raises the exclusion probability from 97 percent or higher. Reisner and Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J. Fam.L. 657, 666, 671 (1981); Carlyon v. Weeks, 387 So.2d 465, 466 (Fla. Dist. Ct. App. 1980); Beautyman, Paternity Actions - A Matter of Opinion Or a Trial of the Blood?, 4 J. Legal Med. 17, 19 (1976); Note, Blood Test Evidence in Disputed Paternity Cases: Unjustified Adherence to the Exclusionary Rule, 59 Wash.U.L.Q. 977, 986 (1981); Commonwealth v. Blazo, 406 N.E.2d 1323, 1325 (Mass. App. Ct. 1980).
The adjudicated cases as well as the scientific literature compel Conclusion that the HLA test is generally accepted as reliable as evidence of the likelihood of paternity. See among others Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979); Carlyon v. Weeks, 387 So.2d 465 (Fla. Dist. Ct. App. 1980); Tice v. Richardson, 7 Kan.App.2d 509, 644 P.2d 490 (1982); Commonwealth v. Blazo, 406 N.E.2d 1323 (Mass App. Ct. 1980); Malvasi v. Malvasi, 167 N.J. Super, 513, 401 A.2d 279 (1979); HLA Test Results Admissible to Prove Paternity Under Pre-1982 Idaho Law, 9 Fam.L.Rep. 2441 (1983).
The opinion the expert witness McCalmon tendered: that there was an 89.1136 percent likelihood that Clarke was the biological father of the child Heather, rested on the HLA test result in combination with the ABO red cell test only. For some reason not explained, Dr. McCalmon did not resort to the other five standard tests of red blood group systems [Rh, MNSs, Kell, Duffy and Kidd], each an inexpensive and easily conducted procedure. These tests, combined with the HLA test, provide a probability of exclusion of 97 percent or more. Note, Blood Test Evidence in Disputed Paternity Cases: Unjustified Adherence to the Exclusionary Rule, 59 Wash.U.L.Q. 977, 986 (1981); Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976); Stroud, Bundrant and Galindo, Paternity Testing: A Current Approach, 16 Trial 46 (1980); Carlyon v. Weeks, 387 So.2d 465, 466 (Fla. Dist. Ct. App. 1980); State ex rel. Hausner v. Blackman, 7 Kan.App.2d 693, 648 P.2d 249 (1982), Aff'd, 233 Kan. 223, 662 P.2d 1183 (No. 52,771 Kan. S. Ct. adopted April 29, 1983). As we noted, there is doubt whether the opinion of expert McCalmon meant that the tests evidenced an 89.1136 percent likelihood of paternity or that the probability of exclusion was by that percentile.
The probability of exclusion and the likelihood of paternity describe two different statistical values. The definitive distinction - often cited - is given in 16 Trial 46, 1.c. 47 (1980):
One of the most prevalent confusions in paternity testing is the difference between the meaning 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% 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. 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. [emphasis added]
Therefore, probability of exclusion - unless in the extreme range -is of little aid to a jury to determine the likelihood that the defendant is the biological father of the child. The significance of the probability of exclusion is that if the defendant is not excluded as a possible father, the likelihood of paternity can be estimated by consideration of other available empirical evidence. Reisner and Bolk, A Layman's Guide to the Use of Blood Group Analysis in Paternity Testing, 20 J.Fam.L. 657, 672 (1981); Ellman and Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1147 ...