Jim Porter: Must you disclose you have herpes?
Special to the Sun
The gift that keeps on giving. Herpes.
Thomas Redmond learned he had genital herpes in 1975. Redmond experienced approximately two outbreaks of the disease each year with blistering lesions and scabs on or near his genitals. He knew the risk of transmitting the disease to his sexual partner was high when he had an outbreak and low or very low risk when he had no lesions.
Redmond met Patricia Behr in 2001 Long story short, i.e., omitting the foreplay, the two began a sexual relationship in 2003, but before doing so, Behr told Redmond she and#8220;was free of diseaseand#8221; and he said he was and#8220;healthy like you are.and#8221; They then engaged (interesting word) in unprotected sex.
They had sex a dozen or so times, then Redmond belatedly fessed up that he had herpes, but he told Behr it was and#8220;OKand#8221; to have sex because he was not having an outbreak. (Expert witnesses for both parties indicated that herpes can be transmitted even when the person with the virus is asymptomatic). I think that means no symptoms. They had sex a few more times. Unfortunately, Behr contracted the herpes virus.
Soon afterward Behr sued Redmond under several legal theories stemming from Redmond’s initial failure to disclose he had the virus, then telling her it was and#8220;OKand#8221; to have sex.
The jury appropriately disagreed with Redmond. Strongly. They awarded Behr $6,753,600, including $2.5 million for future medical expenses and $2.75 million for punitive damages. The jury REALLY did not like Redmond.
Redmond appealed, arguing that midway through their relationship he disclosed he had herpes and Behr could not prove she contracted the herpes virus before his disclosure.
One expert testified the average time for an initial outbreak of herpes usually occurs between 30 and 90 days after infection; however another expert said an initial outbreak usually occurs within 7 to 21 days after infection.
The Court of Appeal ruled for Behr and ruled against Redmond.
The Court concluded Redmond was liable for not disclosing and also for saying it was and#8220;OKand#8221; to have sex when he knew there was some risk she would contract the disease. Negligence and fraudulent concealment.
The trial court upheld the jury verdict awarding substantial damages against Redmond.
Redmond appealed the award of $2.5 million for future economic damages and $2.75 million for punitive damages. I don’t really blame him.
The Court of Appeal noted that Behr was 56 years old at the time of the trial so had a life expectancy and#8212; off of the Life Expectancy Table-Female and#8212; of 27.4 years.
Apparently the medical procedure for herpes is to take Valtrex, which costs about $200 a month and#8212; a lifetime commitment. The cost of those future medical bills amounts to $72,000, so the $2.5 million and#8220;future medsand#8221; award was reduced to $72,000. Redmond’s win.
The Court of Appeal declined to reduce the $2.5 million in punitive damages, finding that the and#8220;puniesand#8221; award was and#8220;proportional to the reduced compensatory damage award ($72,000),and#8221; which in my humble opinion, is preposterous. Behr took home $4,325,600. Seems excessive.
Footnote 4 from the Court of Appeal Opinion illustrates the duty of disclosure if one has herpes: and#8220;A person who knows or should know he or she has herpes and fails to disclose that fact, or misrepresents that he or she is disease-free, may be liable for transmitting the disease to a sexual partner.and#8221;
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firm’s website http://www.portersimon.com.
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