Metropolitan News-Enterprise


Friday, November 12, 2004


Page 3


High Court to Rule on Liability for Negligent Transmission of HIV


By a MetNews Staff Writer


The state Supreme Court Wednesday agreed to decide whether a person who has symptoms indicative of the virus that causes AIDS may be held liable for failure to disclose that fact to his or her spouse.

The justices, at their weekly conference in San Francisco, unanimously granted review in John B. v. Superior Court, B169563. The court also said it would decide whether the plaintiff, identified only as Bridget B., can discover the identities of her husband’s sexual partners.

Bridget B. alleges that she acquired HIV as a result of having sexual relations with her husband during their honeymoon, and that she later discovered that he’d had sexual relations with men before they were married. She seeks damages for intentional and negligent infliction of emotional distress, fraud, and negligence.

John B. conceded that he could, as a matter of California law, be held liable if he knowingly failed to tell his wife he was HIV-positive, which he denies. He claims he did not know he was HIV-positive prior to a test taken after his wife tested positive, and does not concede that it was he who transmitted the virus to his wife.

John B. contends that while there is a duty to disclose being infected, a person who does not know he or she has the virus is not obligated to disclose symptoms that would cause a reasonable person to believe that he or she is carrying HIV or to take precautions against spreading it.

This district’s Court of Appeal, Div. Eight, disagreed in its Aug. 23 opinion by Justice Madeleine Flier.)

“John is also liable if he reasonably should have known that he had HIV and engaged in sexual relations with Bridget without taking measures that would have prevented the transmission of this disease to Bridget,” Flier wrote. She cited Doe v. Roe (1990) 218 Cal.App.3d 1538.

The defendant in that case knew he had herpes but he believed that as long as he did not have lesions, he would not transmit the disease. The trial court found that the defendant had been negligent in either not disclosing that he was infected with herpes or not taking measures that would have prevented its transmission, and the Court of Appeal affirmed.

As for the discovery issues, which took up the bulk of the Court of Appeal opinion, the panel overturned parts of a discovery order issued by then-Los Angeles Superior Court Judge Lawrence W. Crispo. Crispo, who has since retired, was affirming a referee’s recommendations.

Flier said the husband does not have to answer interrogatories demanding the name, telephone number and address of every man he had sexual relations with in the last 10 years; the name, telephone number and address of every man with whom he had unprotected sex in the last 10 years; the name, address and telephone number of every man with whom he had unprotected sex who has HIV; and the name, address and telephone number of every man with whom he had unprotected sex who has AIDS.

Requiring John B. to provide that information would be an invasion of his right to sexual privacy, Flier said, at least at the current stage of the litigation.

Citing Fults v. Superior Court (1979) 88 Cal.App.3d 899, the justice explained:

“Bridget supports her demand for the discovery of the identities of John’s previous sexual partners by claiming that John may have told these persons that he had HIV. However, it is as likely, if not more likely, that John said nothing of the kind to previous sexual partners. If the inference that he disclosed his condition is as likely as the inference that he did not, the inference Bridget seeks to draw is speculative....In any event, Bridget offers nothing to support the suggestion that John may have disclosed his condition at an undisclosed time to an undisclosed person.”

The justice also rejected as improper a request that the husband admit or deny that he knew his “lifestyle” prior to the time he met Bridget B. put him at risk for developing HIV and that he never told her until after they had unprotected sex about his “lifestyle.”

“The word ‘lifestyle’ is vague and ambiguous,” Flier declared. “To the extent that it suggests a sexual orientation, it is offensive and impermissibly intrusive into John’s zone of sexual privacy.”

But Flier said the defendant could be required to provide information about the circumstances of his sexual history relevant to his discovery, and his wife’s, that he was infected with the HIV virus. The questions posed by those interrogatories included the date of his first sexual encounter with a man; the date of his last sexual encounter with a man; the date on which he first became aware that he was HIV-positive; the date on which he first became aware he had AIDS; and the date on which he first told his wife that he had engaged in unprotected sex with men.

The right of sexual privacy, the justice said, “is not absolute” but must be weighed against the probative value of the information requested.

The husband’s medical records, including results of HIV tests, were also discoverable, the justice concluded, given the husband’s assertion that it was the wife who infected him and the husband’s insistence that he had tested negative for HIV before the marriage.

Bridget B. was represented on appeal by Maryann P. Gallagher of Grassini & Wrinkle in Woodland Hills. John B.’s appellate lawyers included Donald A. Garrard of Garrard & Davis in Santa Monica.

In other conference action, the justices:

Agreed to decide whether a law corporation that is a nonprofit organization must register with the State Bar, and whether a client of such an entity may sue for a refund of fees if it fails to do so. The First District Court of Appeal’s Div. Four answered both questions in the affirmative in its July 27 opinion in Frye v. Tenderloin Housing Clinic, Inc., A104078.

Left standing an Aug. 25 Third District Court of Appeal ruling, certified for publication Sept. 3, that a condominium association violated the Fair Employment and Housing Act by barring a dog whose companionship alleviated the depression suffered by her disabled owners. The case is Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission, C044087.

Denied review of a pair of rulings by Div. Eight that a statement to a therapist by a third person—such as the patient’s relative—that the patient plans to harm someone can give rise to a duty to warn the victim. The cases are Ewing v. Goldstein, B163112, and Ewing v. Northridge Medical Center, B166525


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