Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d. Bigelow, J.A.D. (dissenting).
The defendant Andrew Domanski appeals from an adverse judgment in a bastardy proceeding under R.S. 9:17-1 et seq. , entered in the Somerset County Court. The cause was heard de novo by the County Court, sitting without a jury, and resulted in an adjudication of paternity of a child born out of wedlock to C.B. The defendant appeals from the ensuing judgment of filiation.
Dr. Phillip Levine, a medical expert, in preparation for the trial pursuant to L. 1939, c. 221 (N.J.S. 2 A:83-2 and 3), was authorized by the court to make blood grouping tests of the mother, the child and the putative father. Dr. Levine testified that while his tests did not exclude paternity, he
would like to testify concerning "an assumption that the mother's blood has a very rare and unusual serologic makeup." The trial court refused to permit the doctor's supplementary qualifying testimony.
As we view this appeal, we think the primary controversial question concerns the trial court's exclusion of the aforementioned testimony of Dr. Levine. This issue necessarily poses the question of the limitations, if any, of the statute (N.J.S. 2 A:83-2) as a legislative expression of public policy, permitting the testimony of a medical expert on the results of blood grouping tests performed pursuant thereto. The pertinent provisions of the statute are:
"Whenever it is relevant to the case of the prosecution or the defense in a proceeding involving parentage of a child, the trial court, by order, may direct that the mother, her child and the defendant submit to one or more blood grouping tests to determine whether or not the defendant can be excluded from the probability of being the father of the child. The testimony of experts to the result of the test shall be receivable in evidence, but only in cases where definite exclusion of parentage of the defendant is indicated. The tests shall be made by duly qualified physicians, to be appointed by the court. Such experts shall be subject to cross examination by both parties after the court has caused them to disclose their findings to the court or to the court and jury. * * *"
Dr. Levine, testifying as to the results of his examination, stated:
"Because of a very unusual serologic finding, I could not use my usual report. Where there is no exclusion of paternity, there is a qualified serologic detail, which I will disclose if I have the opportunity. * * * The tests in this case would show no exclusion, but we have to make the assumption that the mother's blood has a very rare and unusual serologic makeup. If she had a usual serologic makeup, why then, it would have to be considered an exclusion. * * * In short, your Honor, the scientific facts in this case were not available to me and to workers in the field in 1939 when this New Jersey Statute became effective.
Q. 'These tests in this case show no exclusion.' Is that the wording? A. That's right." (Italics ours)
Towards the turn of the century, Dr. Karl Landsteiner discovered that the blood of all persons was not homogeneous, but that the blood of each individual could be classified in
one of several distinguishable types of blood (called "phenotypes"). This heterogeneous quality of the blood coupled with the incompatibility of certain blood groups (i.e. , reactions caused by mixing different types of blood), form the basis upon which serological blood tests theories are predicated. 163 A.L.R. 941.
Dr. Landsteiner discovered the presence of two genes (also known as antigens or agglutinogens), called "A" and "B," in the human blood. The theory of blood groups was discovered by a mathematician named Bernstein in 1925. During the next five or ten years, certain rules laid down by him were confirmed by long statistical and family studies.
In 1928, Doctors Landsteiner and Levine discovered two new genes in the red corpuscles called "M" and "N." Every person has either an "M" or "N" gene, or both "M" and "N" genes in his red blood cells. These genes are entirely independent of the genes "A" and "B."
According to the Landsteiner-Bernstein theory, it is possible to determine in which group the blood of a particular person belongs by mixing a sample of his blood with solutions containing the antibodies or agglutinins and observing whether or not the blood clots (or agglutinates).
For a more thorough discussion of the medical and legal aspects of blood grouping tests and the scientific development thereof by the late Dr. Landsteiner and Doctors Bernstein, Levine, and Alexander S. Wiener, see 163 A.L.R. 939-961 and Schatkin's Disputed Paternity Proceedings (1947).
Blood grouping tests are most frequently, but not exclusively, resorted to in proceedings, both civil and criminal, in which paternity is in issue. According to serological bloodtest theories, it is possible not only to identify the type of blood of any given individual, but also to exclude paternity (or maternity) in certain instances. The test, however, is only of use to prove non-paternity; paternity cannot be proven by these experiments. In other words, the results of the tests either exclude paternity or are inconclusive. It has been established that "M" and "N" genes are transmitted from parents to child in accordance with the Mendelian law
observed in the inheritance of many characters in animals and plants discovered by Gregor J. Mendel (an Austrian Augustinian abbot, 1822-84), in breeding experiments made by him. Neither gene "M" nor gene "N" can appear in the blood of a child unless it is present in at least one of its parents. On the basis of these discoveries it has been demonstrated that parents ...