Doe v. SenechalDoe v. Senechal
- Reporters:
- , ,
- Before:
- Marshall
We consider in this case a challenge to an order entered by a judge in the Superior Court pursuant to
In January, 1999, Doe moved, pursuant to rule 35, for an order requiring Senechal to undergo a buccal swab paternity test.4 Senechal opposed the motion on two grounds. First, he claimed that any paternity testing would violate his privacy rights under the Fourth Amendment to the United States Constitution. Second, he argued that his condition as the putative father of the child was not “material” to the case and the test could not be ordered pursuant to rule 35. A judge in the Superior Court disagreed, and ordered Senechal to undergo the paternity test.
Senechal filed a petition before a single justice in the Appeals Court, pursuant to
1. Facts. Doe was committed to Westlake, a secure intensive residential treatment facility for mentally ill adolescents operated by Health & Education Services, Inc. (HES), under a contract with the Department of Mental Health (department). Doe had been the victim of severe sexual and physical abuse. She was committed to Westlake for approximately twenty-one months, beginning in February, 1993. During her last month at the facility she was permitted to leave periodically for weekend visits with her parents in Maine. Senechal, an employee of HES, drove Doe to the bus station.5 Doe alleges that in the course of escorting her to the bus station Senechal engaged in various sexual activities with her, including intercourse. After Doe was transferred from Westlake to a less secure facility in Maine, she learned she was pregnant. Doe identified Senechal as the father. She testified at deposition that he was the only person with whom she had sexual intercourse during the relevant time period.6
On discovering that Doe was pregnant, the Maine Department of Mental Health reported the matter to the department, which investigated the case, focusing on the circumstances surrounding three specific dates on which Doe alleged she had sexual intercourse with Senechal. The department concluded that it was not possible that any sexual contact had occurred on one such date, and it was unlikely that sexual intercourse occurred on a second. However, for one date, June 18, 1995, the department determined that Senechal had been alone with Doe, but that, because there were no records available from Westlake concerning the length of time they were alone together, the department could not determine beyond a “reasonable doubt” whether sexual intercourse could have occurred.7 The department could not, therefore, substantiate the allegation. It
2.
Parties to a civil action generally “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”
A matter may be placed “in controversy” in a civil action by the nature of the claim or defense; for example, a plaintiff in a negligence action who asserts mental or physical injury, or a defendant who asserts his mental or physical condition as a defense to a claim, such as an insanity defense to a divorce action. See Schlagenhauf v. Holder, supra at 119, and cases cited. Here, Senechal claims he did not assert his physical “condition,” paternity, in support of his defense; rather his condition was placed in issue by Doe. In such circumstances, Doe is required to make an “affirmative showing” that Senechal’s physical condition is in controversy and that there was good cause for the examination requested.9 Id. at 119-120.
The motion judge correctly concluded that Doe made the necessary showing that Senechal’s condition as the putative father of her child was “in controversy.” Doe has alleged that Senechal engaged in tortious sexual conduct with her, including a claim of assault and battery against him, which he has denied. If Doe were to demonstrate through reliable evidence that Senechal is the father of a child conceived while she was under his supervision, she would prove, at least, that an intentional touching had taken place, one element of that claim. See id. at 118-119 (matter is “in controversy” if it relates directly to the proof or defense of the underlying cause of action). Cf. State ex rel. C.S. v. Dowd, supra, and cases cited.10 Doe has also made an affirmative showing that Senechal had the opportunity to engage in sexual intercourse with her: they were alone on at
The issue of Senechal’s paternity also bears substantially on Doe’s claims for damages for the resulting physical injury from the alleged improper sexual contact, her pregnancy, and any emotional distress she has and will continue to have as a result of the pregnancy. Her claims therefore relate not only to the tortious sexual assault (intercourse), but to her pregnancy and the birth of her child. Doe also observes that Senechal has asserted in his pleadings that another man is the child’s father,11 and has alleged as an affirmative defense that Doe’s damages were “the actions of a third person over whom the Defendants did not exercise control.” These pleadings lend further support to the conclusion that Senechal’s condition as the father of Doe’s child is “in controversy.” Cf. Vargas v. Vargas, 54 A.D.2d 590 (N.Y. 1976) (claim that defendant secured plaintiff’s consent to marriage by false representation that he was cause of her pregnancy placed issue of paternity in controversy); State ex rel. Keithline v. Jennings, 463 P.2d 690, 692 (Okla. 1970) (order to compel blood testing appropriate where petitioner claimed defense of fraud in inducement of contract he signed for child support, but later claimed he had relied on deceit of mother).
Doe has also satisfied her affirmative burden that there is “good cause” to compel Senechal’s examination. The judge concluded that, without evidence that Senechal is the child’s biological father, “there is no objective basis by which to evaluate her claim.” We agree. Although there is evidence from
A judge has broad discretion in determining whether to order a physical examination pursuant to rule 35. Absent an abuse of that discretion, we shall not reverse a judge’s decision on that or other matters of discovery. There was none here.
3. Fourth Amendment. Senechal argues that the prohibition of the Fourth Amendment against unreasonable searches and seizures is an independent ground for quashing the judge’s discovery order because he has a right to be free from “government sponsored intrusions into the integrity” of his own body.
The civil litigation here concerns private litigants, and Senechal points to no authority for his proposition that the Fourth Amendment has any application in this context. See Bowerman v. MacDonald, 431 Mich. 1, 19 (1988) (defendant did not cite and court was unaware of “any cases in which otherwise properly constituted discovery in a civil action has been held to constitute a violation of the Fourth Amendment”).12 To the contrary, in Schlagenhauf v. Holder, supra at 114, the
In any event, the physical examination ordered here — the buccal swab paternity test — would meet the standard of reasonableness.13 The cells to be extracted from Senechal will provide test results that will significantly aid Doe in establishing liability, or may substantially exclude Senechal as the father of her child. In short, the “reasonable expectation is that the test results will strongly point to, but not conclusively prove” the answer to whether Senechal caused Doe’s pregnancy. Matter of a Grand Jury Investigation, 427 Mass. 221, 226 (1998).
Order affirmed.
Notes
“When the mental or physical condition (including the blood group) of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician .... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person and persons by whom it is to be made.”
Other defendants are not parties in this appeal.
Doe seeks recovery for claims of assault and battery against Senechal, as well as claims of negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of her State and Federal civil rights against all of the defendants.
A buccal swab paternity test involves the rubbing of a swab on the interior surface of the cheek to obtain cells that are then evaluated, using PCR (polymerase chain reaction) for deoxyribonucleic acid (DNA) analysis.
In programs operated by or under contract with the department, single-person escorts are discouraged for the safety of both residents and staff, and to prevent false allegations with respect to or by either.
The child has been adopted by a third party. According to Doe’s appellate counsel, the child’s adoptive parents are willing to make the child available for purposes of testing to establish paternity.
June 18, 1995, according to the department’s report, was “within reason” as a conception date of Doe’s child. Senechal argues here that the date of conception cannot be determined with certainty because Doe has not produced
The language of rule 35 (a) tracks the corresponding Federal rule. Reporters’ Notes to
The Supreme Court of the United States in Schlagenhauf v. Holden, 379 U.S. 104, 119 (1964), provides further guidance on this point:
“This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the [trial] judge can fulfill his function mandated by the Rule.”
In State ex rel. C.S. v. Dowd, 923 S.W.2d 444, 449 (Mo. Ct. App. 1996), the court held that a physical examination to determine whether a defendant had been circumcised was not “in controversy” in a battery case. The court reasoned that “[e]ven if a physical examination disclosed that [the defendant in the underlying action] was not circumcised, this fact would not prove any
Doe reportedly told her mother that another man, “the man on the bus,” was the father of her child, while she allegedly told an investigator that she did not have sexual relations with such a man.
In civil cases the constraints of the Fourth Amendment do apply to government litigants in certain circumstances, such as subpoenas duces tecum issued in the course of investigation by grand juries or administrative agencies. See, e.g., United States v. Dionisio, 410 U.S. 1, 11 (1973); See v. Seattle, 387 U.S.. 541, 542-544 (1967) (city fire department inspector may not enter and inspect commercial warehouse as part of routine, periodic city-wide code-compliance canvass without warrant and without probable cause to believe violation of any municipal ordinance existed); United States v. Morton Salt Co., 338 U.S. 632, 652-653 (1950) (Fourth Amendment requires administrative agency subpoena of corporate books or records be limited, relevant, and specific). See
There are a scattering of reported decisions where courts have declined to decide whether the Fourth Amendment applies to civil discovery orders among private litigants, but have nevertheless considered the “reasonableness” of the discovery order. See, e.g., Bowerman v. MacDonald, 431 Mich. 1, 19 (1988). See also United States v. International Business Machs. Corp., 83 F.R.D. 97, 103 (S.D.N.Y. 1979) (assuming Fourth Amendment applies to civil discovery subpoena and applying reasonableness test); Ambassador College v. Goetzke, 244 Ga. 322, 325 (1979) (Hill, J., concurring), cert. denied, 444 U.S. 1079 (1980) (court should consider in “proper” case whether discovery is being used by civil litigants pursuing unsubstantiated claims in violation of rights protected by Fourth Amendment, and whether probable cause requirement of Fourth Amendment is applicable to civil discovery orders).