A case on genital herpes and special verdict forms

In Behr v. Redmond (2011), No. E048333, plaintiff Patricia Behr sued defendant Thomas Redmond for damages caused by the transmission of genital herpes.  Using a special verdict, the jury found Behr had suffered compensatory damages of over $4 million, including $2.5 million for future medical expenses.  The jury also awarded Behr punitive damages of $2.75 million.  Redmond appealed, alleging a number of errors, including insufficiency of evidence to show Behr contracted herpes prior to Redmond's disclosure to her of the disease and a claim that the special verdict was fatally defective.

Redmond learned he had genital herpes in 1975 and knew the disease was contagious, although the risk of infection varied depending on whether he was experiencing an outbreak.  Behr and Redmond met in 2001 and their relationship progressed to a sexual one, although he did not tell her had herpes until February 12, 2004.  When Redmond decided he was not having an outbreak, he assured it was okay to have sex, which they did on Valentine's Day.  After they returned from a trip to Spain in April 2004, the relationship apparently ended.  Behr later realized in February 2005 that she had herpes, although she probably had her first outbreak in March 2004.

Behr filed a lawsuit, alleging  fraud, intentional and negligent infliction of emotional distress, and negligence.  The jury returned a special verdict in Behr's favor.  The jury verdict asked whether Redmond informed Behr prior to having sexual intercourse that he was infected, to which the jury responded no.  The jury form also asked the jury to specify the amount of damages.  The form also included a question whether Redmond fraudulently concealed his herpes before sexual conduct, to which the jury responded in the affirmative.

The appellate court affirmed that "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."  This duty exists even if the person is not experiencing an outbreak, because the risk of infection is still present.  Here, Redmond made a disclosure and the parties still had sex.  He  argues he cannot be liable if Behr contracted herpes after the date of disclosure and he argued there was no substantial evidence that Behr contracted herpes before his disclosure.

The court rejected his argument.  After disclosure, Redmond said it was okay to have sex because he was not having an outbreak.  These assurances supported a finding that he negligently or intentionally misled Berk into believing there was no risk of getting herpes.  Because of these assurances, the court found the jury could reasonably conclude Redmond's conduct constituted negligence and fraudulent concealment, and it did not matter at what point in time the disease was transmitted.

The court held that any defect in the special verdict as to the timing of the transmission was waived because Redmond failed to object.  "'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict.  Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.'"  Since Redmond believed the timing of the infection was an important fact in determining liability, it was incumbent on him to ensure that findings on this issue were included in the verdict.  Behr claimed that Redmond's attorney prepared the verdict form and both stipulated to its use.  Redmond also failed to seek any correction or clarification of the verdict at any time.   Thus, this objection was waived, but considering the fact that the court found he could be still be liable after disclosure if he assured Behr it was okay to have sex, it probably would not have changed the outcome.

On the flip side, the court found that the special verdict did not support a judgment for fraud by misrepresentation because the jury was not requested to make special findings as to whether Redmond made any affirmative misrepresentation.  "When a special verdict is used and there is no general verdict, we will not imply findings in favor the prevailing party . . . If a fact necessary to support a cause of action is not included in such a special verdict, judgment on that cause of action cannot stand."  Thus, the court reversed the judgment as to the cause of action for fraudulent misrepresentation, reduced the compensatory damages, modified the trial court's order regarding costs, but it refused to disturb the punitive damages award.