The Duty to Disclose STDs — The One that Never Goes Away
In a recent local case [Behr v. Redmond, (2011) 193 Cal. App. 4th 517], the plaintiff sued the defendant for damages arising from the alleged tortious transmission of genital herpes. Essentially, the plaintiff alleged that the defendant committed fraud when he misrepresented to her that he was free of STDs, knowing this to be false. Relying on his representation, the plaintiff ultimately contracted genital herpes from her encounter with the defendant.
After trial, the Riverside County Jury awarded her compensatory damages in the amount of $4,003,600, including $2.5 million for future medical expenses for the treatment of her genital herpes. In a separate trial deciding the issue of punitive damages, the jury awarded the Ms. Behr $2.75 million.
The decision was based, in part, on long-established California law. “People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs.” Doe v. Roe (1990) 218 Cal.App.3d 1538, 1545.
On appeal, the Appellate Court concluded that there was sufficient evidence to support the jury’s findings that Mr. Redmond was negligent and had also fraudulently concealed the risk of contracting herpes. The jury could reasonably conclude that plaintiff justifiably relied on defendant’s assurance that it was okay to have sex with him.
The Court of Appeal did, however, make modifications to the award of future medical expenses. The Court found that plaintiff’s claim that she was now uninsurable to lack factual support and thus struck damages based on this contention. The Court thus found that plaintiff’s future medical expenses were the cost of her herpes medication over her expected life span.
The award of punitive damages was not so disproportionate as to render it suspect or to otherwise require reversal. Plaintiff was not entitled to recover expert witness fees because she failed to support her memorandum of costs with a written offer to compromise.
The judgment was affirmed in part and reversed in part. The judgment was reversed as to the cause of action for fraud by misrepresentation. The award of future medical expenses was reduced to from $2.5 million to $72,000, and the total compensatory damages award was reduced to $1,575,600.
