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Daubach v. Ishihara

OPINION FILED DECEMBER 29, 1981.

MARY DAUBACH, PLAINTIFF-APPELLANT,

v.

KAZUO ISHIHARA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. SULLIVAN, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 5, 1982.

Pursuant to the Illinois Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1351 et seq.), plaintiff, Mary Daubach, filed suit against defendant, Kazuo Ishihara, alleging that defendant had fathered a child born out of wedlock to plaintiff. Plaintiff sought child support and reimbursement for the reasonable expenses she incurred during her pregnancy, confinement and recovery. Based on the results of blood tests received into evidence, the trial court entered summary judgment for defendant. Plaintiff appeals, contending that the court erred in admitting the tests into evidence; that the tests, if admissible, did not support summary judgment; and that the court erred in denying plaintiff's motion to compel the taking of defendant's deposition. For the reasons which follow, we reverse the judgment of the trial court and remand for further proceedings not inconsistent with this opinion.

Plaintiff's action, instituted on November 11, 1979, alleged that defendant was the father of a child born to plaintiff on June 28, 1978. The complaint asserted that plaintiff and defendant had lived together for 4 1/2 years from 1975 to 1979. Plaintiff claimed that during this period she did not visit, socialize or associate with any man other than defendant. In his answer defendant denied this allegation.

The child was conceived some time between September and November of 1977. Plaintiff stated that during this same period she had intercourse with defendant approximately 16 times. Defendant denied being the father of the child.

Prior to the commencement of this action, blood tests of the plaintiff, defendant and child were taken by Dr. Chang Ling Lee of Mount Sinai Hospital. Dr. Lee concluded that the tests excluded defendant from paternity of the child. Based on the results of these tests, defendant moved for summary judgment after plaintiff brought suit.

Upon agreement of the parties, the court ordered plaintiff, defendant and child to submit to a second set of blood tests to be conducted by a physician selected by plaintiff. The parties stipulated that "in the event exclusion [of defendant] is established by any blood test, the results thereof establishing such exclusion shall be admitted in evidence in this cause." Based on the second set of blood tests, Dr. Takashi Okuno, Medical Director of the Blood Bank, Lutheran General Hospital, concluded that "the paternity of [defendant] appears to be excluded * * *." (Emphasis added.) The court granted defendant leave to file these test results.

Plaintiff filed a motion to compel defendant to appear for a deposition. The court denied plaintiff's motion and at the same time granted plaintiff 21 days to respond to defendant's motion for summary judgment. Plaintiff filed her own affidavit and that of Dr. Okuno in opposition to the motion for summary judgment.

The affidavit of Dr. Okuno, prepared by plaintiff's attorney, stated in part:

"That the results of his [Dr. Okuno's] tests and those of Dr. Lee are inconclusive because they fail to exclude the following gene variant possibilities in Kazuo Ishihara:

A) E gene variants such as E[w], E[u], or E[t]

B) S gene variants such as S[u], or S

C) Fy gene variants such as F[y] or Fy[x].

Because of Mr. Ishihara's racial background (Japanese), many more gene variants than cited in paragraphs A), B), and C) also can be assumed to exist, ...


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