may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Steven Narveson,
Kristen Mae Swanson,
Filed January 5, 1999
Mower County District Court
File No. F0961464
Duane A. Kennedy, Suite 4 Durst Building, 724 First Avenue S.W., Rochester, MN 55902 (for appellant)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.[*]
Appellant challenges the admission of DNA evidence in a paternity suit and the district court's award of expenses and attorney fees to respondent. We affirm.
Appellant Kristen Mae Swanson gave birth to a child on October 17, 1996. Respondent Mark Steven Narveson commenced this paternity action, alleging he is the child's father. The district court ordered blood tests, with DNA analysis, of appellant, respondent, and the child. Laboratory Corporation of America (LabCorp) in Burlington, North Carolina, did the testing, which showed a 99.72 percent probability that respondent is the child's father.
Appellant gave pretrial notice that she objected to the "admissibility of the blood testing or results for any purpose." Also, in response to respondent's request for admissions, appellant claimed she lacked adequate information either to admit or deny the authenticity of a certified copy of the test results. As a result, respondent deposed Dr. George Maha, director of laboratory operations in the paternity testing section of LabCorp. Appellant then requested an order "suppressing all evidence of the blood tests and results because of a lack of proper foundation." The district court denied the motion and admitted the test results. The jury found that respondent is the child's father, and the district court awarded respondent expenses and attorney fees. This appeal followed.
1. Admissibility of Blood Test Results
Appellant claims there was insufficient foundation for admission of the blood-test results. Whether to admit or exclude evidence rests within the broad discretion of the trial court, and its ruling will not be disturbed absent an abuse of that discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).
Appellant argues that Dr. Maha was not a proper foundation witness for admission of the blood-test results because he did not personally do the testing or know at his deposition the names of the LabCorp technicians who did the testing. But records of regularly conducted business activity are admissible as exceptions to the prohibition against hearsay if the custodian of the records or another qualified witness provides foundation testimony. Minn. R. Evid. 803(6); see also National Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d 59, 62 (Minn. 1983) (holding that it is unnecessary for person who prepared report to testify to its contents). Dr. Maha was the custodian of LabCorp's paternity testing records, and he was familiar with LabCorp's testing procedures. He was, therefore, a witness qualified to provide foundation testimony for admission of the blood-test results.
Appellant also claims that the results of DNA testing are admissible only if the testing laboratory complied with the "appropriate standards and controls" described in State v. Schwartz, 447 N.W.2d 422, 428 (Minn. 1989). Appellant argues that Dr. Maha's deposition testimony does not prove that LabCorp's testing meets what appellant calls this "Minnesota standard" for the admission of DNA evidence, although she identifies no failure to comply. The record supports the district court's conclusions that the blood tests "were performed under the standard procedure approved of by the regulating agencies" and that there was sufficient foundation for the admission of the test results.
2. Attorney Fees
Appellant contends the district court erred in awarding attorney fees and costs to respondent. An award of attorney fees will not be disturbed absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The district court made the award on the ground that appellant failed, without justification, to admit the genuineness of documents and the truthfulness of matters in her responses to respondent's request for admissions, thereby putting respondent to unnecessary expenditures of both time and money. See Gilchrist v. Perl, 387 N.W.2d 412, 419 (Minn. 1986) (stating that "vexatious" denial entitled party requesting admission to reasonable costs, including attorney fees). Based on our review of the record, we conclude that the district court did not abuse its discretion in its award of attorney fees and costs.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.