ALEXANDER SIMONS, PETITIONER,
v.
ELFRIEDE JORG A/K/A ELFRIEDE JORG SIMONS, RESPONDENT

Fla. 2d DCA | 1980-07-02
No. 80-228
HOBSON, Acting C. J., and GRIMES, J., concur.
384 So. 2d 1362 Florida District Court of Appeal, Second District (1980) Caution
Cited by 16 cases

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Holding

The court held that the lower court did not depart from the essential requirements of law by ordering a putative father to submit to an HLA blood test in a paternity suit.


Headnotes

[1] Discovery is permissible with respect to any matter that is relevant to the subject matter of the pending action, where the information sought is reasonably calculated to…

[2] The potential inadmissibility of test results does not preclude discovery if the results are relevant and reasonably calculated to lead to admissible evidence.

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Facts & Procedural History

After a putative father denied paternity, the respondent mother moved to compel an HLA blood test. The trial court initially granted the motion but wa…

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Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

The question presented by this petition for certiorari is whether the lower court departed from the essential requirements of law when it entered a discovery order compelling the putative father in a paternity suit to submit to the relatively recently developed Human Leukocyte Antigens (HLA) blood test. We find no error and deny the petition.

After petitioner filed an answer denying paternity, respondent moved to compel petitioner to submit to a blood test, alleging awareness of a “new type of blood test which can usually conclusively determine paternity.” After hearing argument of counsel only, the trial court granted the motion.

Petitioner then sought certiorari review in this court of the order which compelled the blood test. This court granted certiorari and quashed the order, on the premise that discovery is permissible only on matters reasonably calculated to lead to admissible evidence, and nothing in the record indicated that the HLA test results would be admissible or even lead to admissible evidence. Simons v. Jorg, 375 So. 2d 288 (Fla.2d DCA 1979).

Subsequently, respondent filed another motion to compel petitioner to submit to HLA testing. At a hearing on the motion, respondent called Dr. Larry Davis, a pathologist, who testified substantially as follows:

The HLA test is not the typical ABO blood grouping test which is in general use to prove nonpaternity. The HLA testing is a more sophisticated procedure which involves tissue typing of the white blood cells and results in far higher probabilities of paternity than those yielded by any of the traditional blood grouping tests.1. With HLA testing, if a male is not excluded as the father, the probability of his being the father is usually over 90%. In 16% of the cases, the probability exceeds 99%. These probability figures can be increased substantially when HLA testing is combined with red cell antigen testing.

The trial court thereupon found that the test was one covered by the discovery rule [Florida Rules of Civil Procedure 1.360(a)] and that, based on the undisputed evidence of its reliability and accuracy, respondent had shown good cause to compel the petitioner to submit to the test.

Petitioner argues that the test will not result in admissible evidence, and thus discovery should not be permitted. Even if this were true, the possible inadmissibility of the test results would not be sufficient to prevent discovery. Murray Van & Storage, Inc. v. Murray, 343 So. 2d 61 (Fla. 4th DCA 1977); Fla.R.Civ.P. 1.280 (bXl). Discovery is permissible with respect to any matter that is relevant to the subject matter of the pending action, where the information sought is reasonably calculated to lead to the discovery of admissible evidence. Brooks v. Owens, 97 So. 2d 693 (Fla.1957). Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla.Stat. (1979). Relevant evidence is generally admissible unless its probative value is substantially outweighed by unfair prejudice. § 90.403, Fla.Stat. (1979).

Based on Dr. Davis’ uncontradicted testimony in the record before us, we hold that respondent adequately established that HLA test results may have substantial probative value and may be relevant in this action to establish paternity. The test results, if admitted in evidence, could have a tendency to prove the fact of paternity, which is the central issue in controversy in this case. Therefore, we agree with the trial court that good cause was shown to compel petitioner to submit to the blood test. At this stage of the case, we may not and do not reach the question of the admissibility of evidence of the HLA test results at trial,2 nor can we anticipate what weight the trier of fact would give such medical evidence, if admissible, together with other proofs which may be offered in deciding the issue of paternity.

We only decide that the trial judge correctly concluded that good cause was shown to compel petitioner to submit to HLA testing pursuant to the conditions imposed by Florida Rules of Civil Procedure 1.360(a). The petition for certiorari is denied.

HOBSON, Acting C. J., and GRIMES, J., concur. . See Terasaki, Resolution By HLA Testing of 1,000 Paternity Cases Not Excluded By ABO Testing, 16 J.Fam.L. 543 (1978).

. We note that at least two other jurisdictions considering the admissibility of HLA test results to prove paternity have concluded that such results are admissible for the purpose of proving paternity, assuming that an adequate foundation is laid. Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A. 2d 279 (Ch. Div. 1979).


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Cited By

  • Bystrom v. S.F. Whitman, 488 So. 2d 520 (Fla. 1986)
    …challenging an ad valorem assessment. Rules 1.280 and 1.350 of the Florida Rules of Civil Procedure provide for a broad range of discovery, allowing the discovery of any document relevant to the subject matter of the pending action. Simons v. Jorg, 384 So. 2d 1362 (Fla. 2d DCA 1980). Under sections 193.074, 195.027(3), and 195.084(1), Florida Statutes (1979), the property appraiser is compelled to treat the data confidentially once it is obtained. Un-disputably, under the rules of discovery, the taxpayer woul…
  • McQUEEN v. Lucinda B. Stratton, 389 So. 2d 1190 (Fla. 2d DCA 1980)
    …g paternity. He also appeals the award of $650 per month future child support and past child support from the date of birth in the same monthly amount, a total arrearage of $40,300. We reject McQueen’s arguments. This court held in Simons v. Jorg, 384 So. 2d 1362 (Fla.2d DCA 1980), that a putative father can be compelled to submit to HLA testing if the mother has shown good cause. The trial court in the instant case followed Simons v. Jorg, supra, and determined that Lucinda Stratton had shown good cause. As…
  • Miles Edward Carlyon v. Weeks, 387 So. 2d 465 (Fla. 1st DCA 1980)
    …ld be served to permit HRS to appear at this late stage in this certiorari proceeding. (375 So. 2d at 290). The ruling of the Second DCA is limited to a situation where no good cause is shown for an examination by blood testing. See Simons v. Jorg, 384 So. 2d 1362 (Fla.2d DCA 1980) where the court denied a petition for writ of certiorari challenging a discovery order compelling the putative father to submit to the HLA blood test. The record in this case comes to us in an entirely different posture than that…

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