STATE DEPT. OF REVENUE v. Aguirre

705 So. 2d 990, 1998 WL 39263
CourtDistrict Court of Appeal of Florida
DecidedFebruary 4, 1998
Docket96-1244, 95-3543
StatusPublished
Cited by2 cases

This text of 705 So. 2d 990 (STATE DEPT. OF REVENUE v. Aguirre) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE DEPT. OF REVENUE v. Aguirre, 705 So. 2d 990, 1998 WL 39263 (Fla. Ct. App. 1998).

Opinion

705 So.2d 990 (1998)

STATE DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, on Behalf of Noemi VASQUEZ, Appellant,
v.
Sebastian J. AGUIRRE, Appellee.

Nos. 96-1244, 95-3543.

District Court of Appeal of Florida, Third District.

February 4, 1998.

*991 Robert A. Butterworth, Attorney General, Angelica D. Zayas, Barbara A. Ard and Jon Johnson, Assistant Attorneys General, for appellant.

Alan Michael Foody and Lance R. Stelzer, for appellee.

Before COPE, GODERICH and SHEVIN, JJ.

COPE, Judge.

The State appeals entry of judgment in favor of appellee, the putative father in this paternity action. We reverse.

I. PROCEDURAL HISTORY

Noemi Vasquez, on behalf of whom this appeal is brought, is the mother of a minor child born in 1987. In 1990, she filed an action to determine the paternity of appellee Sebastian Aguirre. In pursuit of that claim, Vasquez requested genetic testing on Aguirre, and in December 1990, the parties were ordered to undergo HLA testing. See § 742.12, Fla. Stat. (1989). Blood was drawn and submitted to Roche Biomedical Laboratories.

The results of the first test proved to be inconclusive. Roche then contacted Vasquez's counsel to advise her that additional samples were needed for a conclusive result. Although opposed by Aguirre, additional *992 blood was drawn for further testing and in January 1993 Roche filed its final report indicating a probability of paternity of 99.84%.

Aguirre retained Dr. Karl Muench of the University of Miami School of Medicine, a genetics expert, to evaluate the Roche data. Muench concluded that there was a probability of paternity of 99.03% and rendered a written opinion that Aguirre was the father. Aguirre discharged Muench and Vasquez retained him to serve as her expert.

Aguirre then retained Dr. Moses Schanfield of Analytical Genetic Testing Center, Inc. Schanfield criticized Roche's work and opined that the Roche results did not allow an opinion to be rendered on paternity one way or the other. Schanfield acknowledged that if his criticisms of the Roche work were correct, one way to resolve the matter would be to take another blood sample and conduct further testing. Aguirre opposed further testing and never procured any opinion excluding him from paternity.

After the first and second rounds of testing, Aguirre propounded extensive discovery requests. The requests generally covered all materials generated and used in connection with the testing. The purpose of the discovery requests was to permit Aguirre to confirm that Roche had followed all proper techniques and procedures in testing and evaluating the results.

Aguirre was dissatisfied with the response to his 1993 discovery requests. He filed a further discovery request and moved to compel discovery. The parties entered into an agreed order under which Vasquez was required to provide all the documents requested or have the results of the blood tests barred from admission at trial. After Vasquez provided Roche's response, Aguirre advised the court that the production was not sufficient, attached the affidavit of his expert outlining the omissions, and moved for the exclusion of the blood test results. Vasquez responded by providing an affidavit from Roche explaining its production and why there were no omissions other than a single gel form which was inadvertently overlooked. The parties disagreed as to whether certain items had previously been provided or whether they were included in the request at all. Following hearing, the trial court granted the motion, excluded the test results, and denied Vasquez's motion for additional testing under section 742.12(4), Florida Statutes.

The case proceeded to trial without any blood test results. Out of the hearing of the jury, Vasquez proffered the testimony of her expert from Roche as well as that of Dr. Muench that the scientific tests showed Aguirre to be the father of the minor child. Aguirre made a counterproffer of his expert's criticism of Roche's work and opinion that the scientific results were inconclusive.

During deliberations, the jury sent a note to the judge asking why there had been no blood test in this case, but was instructed to decide the case on the evidence received. The judge refused Vasquez's request for an instruction that no inference should be drawn for or against either party based on the absence of blood testing. The jury's verdict was in favor of Aguirre.

The State, on behalf of Vasquez, has appealed, arguing that the trial court erred both in excluding the blood test results and in failing to order additional testing. We agree on both points.

II. EXCLUSION OF EVIDENCE

It appears that the trial judge primarily based her determination to exclude the blood test results on the conclusion that Vasquez violated the parties' stipulation underlying the March 1995 agreed order. The trial court found that Vasquez and Roche had failed to produce 1) a single DNA preparatory gel form; 2) an item described by Aguirre as an "exclusionary log book"; and 3) all of Roche's policies and procedures manuals for the relevant time. We conclude that these items of nonproduction were minimal and inadvertent, and that there was no prejudice to Aguirre. The scientific evidence should not have been excluded.

We begin by emphasizing that this is a paternity proceeding brought for purposes of child support. Florida has a longstanding policy in favor of deciding cases on the merits, see Venero v. Balbuena, 652 So.2d 1271, 1272 (Fla. 3d DCA 1995), and that policy *993 occupies particularly great importance in paternity and other child-support-related cases. As one court has explained:

In accordance with Fla. R. Civ. P. 1.380(b)(2), upon a party's failure to obey a discovery order the court may impose sanctions including the striking of pleadings, prohibiting the introduction of evidence, and refusing to allow the presentation of a claim or defense. Although these are severe sanctions which should be employed only in extreme circumstances, their imposition is a matter within the discretion of the trial court. However, while the sanction imposed in the present case was intended to penalize appellant, it may also have had the effect of precluding a complete consideration of the needs of the minor child. As indicated in Locklear v. Sampson, 478 So.2d 1113 (Fla. 1st DCA 1985), the proceeding should not be viewed "as if it were no more than a simple claim between private parties to enforce a monetary obligation." It is the child, who was not a party to the discovery violation, for whom the support is intended. The court could have insured that the child's interests and rights were safeguarded by a thorough presentation of evidence, and imposed one of the various other sanctions authorized by Rule 1.380(b). But by imposing sanctions inhibiting a full consideration of the rights and interests of the minor child in the present case the trial court abused its discretion.

Mitchem v. Grubbs, 485 So.2d 891, 892 (Fla. 1st DCA 1986) (emphasis added; citation omitted); see Stiles v. Bargeron, 559 So.2d 365, 367 (Fla. 1st DCA 1990); see also State Department of Revenue v. Aravz, 678 So.2d 464, 465 (Fla. 3d DCA 1996).

With those principles in mind, we turn to the details of the discovery dispute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Southwick v. State, Department of Revenue ex rel. Mulloy
750 So. 2d 32 (District Court of Appeal of Florida, 1998)
Morris v. Crawford
718 So. 2d 354 (District Court of Appeal of Florida, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
705 So. 2d 990, 1998 WL 39263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-revenue-v-aguirre-fladistctapp-1998.