Opinion
99 C 8413
May 4, 2000
MEMORANDUM OPINION
Before the Court is the motion of Counterdefendant/Counterplaintiff Gladys Parker pursuant to Federal Rule of Civil Procedure 35 for Court Ordered Independent Medical Examinations. For the reasons set forth below, we deny Parker's motion.
BACKGROUND
Frederick Parker ("the Decedent") died in September of 1998. At the time of his death the Decedent was covered by a life insurance policy issued to him by Defendant/Counterplaintiff Metropolitan Life Insurance Company ("Metropolitan") pursuant to his employment with the United States Postal Service ("USPS") and as provided for by the Federal Employees' Group Life Insurance Act, 5 U.S.C. § 8701, et seq. ("FEGLIA"). This action centers around competing claims for the proceeds of the life insurance policy by three alleged natural children of the Decedent, his mother, and to an extent his goddaughter.
The Parties agree that at the time of his death the Decedent was employed by the USPS and covered by the Metropolitan policy and that the Decedent had not designated a beneficiary for the death benefits payable under the policy, triggering a statutorily provided taking order under FEGLIA. Under that scheme, the insurance proceeds are awarded to any "child or children" of the decedent if there should be no surviving spouse. See 5 U.S.C. § 8705(a). Should no children exist, then the proceeds go to the Decedent's parents. See id.
The pleadings filed with the Court establish that the following individuals have claimed entitlement to the insurance proceeds. Plaintiff/Counterdefendant Andre Moore asserts that he is the Decedent's recognized illegitimate son, as established by a 1965 order of the Circuit Court of Cook County, Illinois. In addition to a copy of the order and several letters from the Decedent acknowledging Moore to be his natural son, Moore has provided the Court with his Certificate of Live Birth, which lists the Decedent as Moore's father. In addition, the Decedent paid child support to Moore's mother.
Third-party Defendants/Counterplaintiffs Latanya C. McSwine and Wynee Latrice Donald (collectively "McSwine and Donald") claim to be the Decedent's illegitimate recognized daughters. McSwine and Donald do not provide the Court with any tangible evidence, but claim that following the Decedent's death unknown individual removed documents wherein the Decedent acknowledged his paternity. McSwine and Donald also payed the Decedent's funeral and burial expenses.
Third-party Defendant Erin Dawn Barnett ("Barnett") claims that she was the goddaughter of the Decedent. While Barnett has made claim to Metropolitan for the insurance proceeds, she has not filed an appearance with the Court, nor has she participated in the adjudication of this motion. Thus, we have no evidence in support of her claim.
Third-party Defendant/Counterplaintiff Gladys Parker ("Parker") is the Decedent's mother. She seeks the proceeds from the policy, claiming that none of the claimants meet the definition of "child" under FEGLIA.
Following the Decedent's death, Moore filed a claim with Metropolitan, but was informed that the other claimants had also made claims. Moore thereafter filed suit against Metropolitan in the Circuit Court of DuPage County seeking an order awarding him the insurance proceeds. Metropolitan subsequently removed the action to this Court, and Parker thereafter filed her motion to compel DNA genetic testing of the putative children of the Decedent.
DISCUSSION
In her motion, Parker requests that her opposing parties, Moore, McSwine, Barnett, and Donald be compelled to submit blood samples to the Court to be tested by an appropriate facility to determine whether their DNA matches that extracted from the Decedent. Respondents argue that DNA testing was not established by Congress as one of the methods of establishing parentage under FEGLIA, and thus any DNA results are irrelevant and immaterial.
DNA is short for deoxyribonucleic acid, which is found in the nucleus of almost every cell of the human body and every other organism. See USA v. Young, 754 F. Supp. 739, 740 (D.S.D. 1990). DNA has been called the chemical road map for life see United States v. Shea, 957 F. Supp. 331, 333 (D .N.H. 1997), and does not change over a person's lifetime, but remains constant in all nucleated cells within the person's body. See Young, 754 F. Supp. at 740.
DNA testing to establish paternity was not available when Congress enacted FEGLIA in 1954. See Metropolitan Life Ins. Co. v. Christ, 979 F.2d 575, 576 (7th Cir. 1992). Indeed, in 1989, Judge Marovitz of this District recognized that DNA testing was an extremely new technology, originally developed in Great Britain. See Simkunas v. Tardi, 720 F. Supp. 687, 696 (N.D. Ill. 1989). 1987 was the first time DNA fingerprinting was ever used to obtain a conviction (in Great Britain), and the first conviction involving DNA fingerprinting in an American Court occurred one year later. See id. Since that time, when conducted under sound conditions and by qualified personnel, DNA fingerprinting has received wide approval, and has achieved a demonstrated level of reliability. See Roe v. Marcotte, 193 F.3d 72, 79 (2nd Cir. 1999) (affirming constitutionality of state statute requiring incarcerated sex offenders to submit blood sample for a state and national DNA data bank.).
At issue is whether Moore, McSwine, Barnett, and Donald were the children of the Decedent. While "child" is undefined in Section 8705, the Office of Personnel Management ("OPM") recently promulgated 5 C.F.R. § 870.101, which states:
Child, as used in the order of precedence for payment of benefits, means a legitimate child, an adopted child, or a recognized natural child * * * Recognized natural child, with respect to paternity, is one for whom the father meets one of the following:
(1)(i) Has acknowledged paternity in writing;
(ii) Was ordered by a court to provide support;
(iii) Before his death, was pronounced by a court to be the father;
(iv) Was established as the father by a certified copy of the public record of birth or church record of baptism, if the insured was the informant and named himself as the father of the child; or
(v) Established paternity on public records, such as records of schools or social welfare agencies, which show that with his knowledge the insured was named as the father of the child.
Parker argues that DNA testing is necessary to determine whether Moore, McSwine, Barnett, and Donald are the natural children of the Decedent, and thus have precedence over her claim to the insurance proceeds. OPM, however, did not include DNA testing as a means of establishing paternity in 5 C.F.R. § 870.101. Given that this regulation was recently promulgated, and DNA testing was already in existence at that time, we believe that OPM must have decided against including it as proper evidence of paternity.
Parker contends that DNA testing was utilized to determine the order of precedence in Tipps v. Metropolitan Life Ins. Co., 768 F. Supp. 577 (S.D. Tex. 1991). However, the Court in Tipps did not utilize 5 C.F.R. § 870.101, but applied Texas law which permitted scientific DNA testing to establish paternity. See Tipps, 768 F. Supp. at 579.
We disagree with the Tipps court's application of state law because the proper approach to determine whether to apply federal law over conflicting state law is to utilize principles of preemption. See CSX Trans., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1738 (1993). The Seventh Circuit has already held in Christ that FEGLIA preempted state law. See Christ, 979 F.2d at 578-80; see also Metropolitan Life Ins. Co. v. Browning, 839 F. Supp. 1508, 1514-16 (W.D. Okla. 1993). Thus, Tipps is distinguishable, and we apply federal law to determine the meaning of "child." Under federal law section 870.101 controls our analysis.
We believe DNA testing is presently an inappropriate means of establishing paternity under FEGLIA. Despite having been aware of the existence of DNA testing for more than ten years, Congress has not taken the opportunity to modify FEGLIA to provide for DNA testing to determine paternity. Nor has OPM modified the regulation to provide for DNA testing as an additional means of establishing paternity, despite having modified section 870.101 within the last year. Accordingly, even though DNA testing may be a more accurate tool in definitively establishing paternity than any of the other listed methods, because there is no authority for its use under either FEGLIA or any duly promulgated regulations, it is irrelevant to the instant paternity determinations.
Our conclusion draws further support from a potential scenario applicable to Moore. In support of his claim Moore tenders a judicial order allegedly establishing the Decedent as his father, and an order allegedly compelling the Decedent to pay child support to Moore's mother. Should we compel Moore to provide blood for DNA testing, which arrived at a negative result, we would have the untenable situation of Moore being unable to receive FEGLIA benefits despite having fulfilled the express requirements under the regulations to establish paternity. We do not believe that an unlisted technique may trump the field and eliminate from contention all five of the techniques expressly provided for by OPM. Therefore, we defer to OPM's interpretation of FEGLIA because it does not clearly contravene Congressional intent and is sufficiently reasonable. See Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51 (1978); Federal Election Committee v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39 (1981).
In addition, we believe that the regulation requires that paternity must be recognized prior to the insured's death and post-mortem DNA testing would violate this requirement. Respondents argue that paternity must have been recognized by the Decedent while he was alive. We agree. FEGLIA fixes the claimants' status at the time of the insured's death.See Browning, 839 F. Supp. at 1517. "Unless the child is either legitimate or adopted, then only recognized natural children are eligible for distribution." Id. at 1516. Thus, absent a change in FEGLIA courts must focus on the parties' legal status, not their biology. See id. at 1517.
We note that the section 870.101 uses the modifier "recognized" to alter the meaning of the phrase "natural child." This imposes the requirement that during the insured's lifetime the claimant must have been recognized as his child via one of the five primary means of evidence enumerated in the regulation. Indeed, the very nature of each method of proof requires either the father to acknowledge siring the child, or a court to have made this determination. To require otherwise in such circumstances would permit the use of writings or acknowledgments that would be unreliable and could lead to the presentation of false evidence. However, by requiring confirmation by the father or adjudication by the Court, the law preserves and protects the integrity of the evidence. Because post-mortem DNA testing does not meet the recognition requirement there is no authority for its use here. Accordingly, we deny Parker's motion.
CONCLUSION
For the foregoing reasons, Parker's Motion for a Court Ordered Medical Examination is denied.