Tuesday, August 24, 2004
Page 1
Appeals Court Rejects Woman’s Bid to Discover Identity Of Husband’s Sexual Partners in HIV Infection Suit
By a MetNews Staff Writer
This district’s Court of Appeal yesterday rejected a woman’s bid to discover the identity her husband’s sexual partners in her suit alleging he infected her with the virus that causes AIDS.
Div. Eight 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.
The plaintiff, identified only as Bridget B., claimed her husband concealed from her the fact he had sexual relations with men before their marriage. Her complaint included causes of action for intentional and negligent infliction of emotional distress, fraud, and negligence.
Writing for the appellate panel, Justice Madeleine Flier said the defendant in the suit—identified only as John B.—did 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 declared:
“It has been held that discovery that seeks the revelation of the identity of a person’s previous sexual partners may violate the constitutionally protected zone of privacy of a person’s sexual relations....
“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. Moreover, Bridget’s demand for the disclosure of the identities of John’s previous sexual partners is extremely broad and unlimited. Under these circumstances, we decline to subordinate the right of privacy to Bridget’s alleged need for this information.”
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 allegation that John knew, or reasonably should have known, that he had HIV before he had sexual relations with Bridget is fundamental to the causes of action for the intentional and negligent infliction of emotional distress, fraud and negligence,” the justice reasoned, explaining:
“The interrogatories and requests for admission that we hold discoverable seek information that unquestionably probes into the zone of privacy that protects John’s right to sexual privacy. However, the right of sexual privacy is not absolute—.Disclosure is permitted if it serves the compelling interest of the facilitation of the truth-finding process in court proceedings and if it may be reasonably inferred that the inquiry will likely be productive.”
The husband’s medical records, including results of HIV tests, were also discoverable, the justice concluded.
“John affirmatively claimed in his answer to the complaint that Bridget had infected him with HIV,” she reasoned. “More importantly, he specifically relied on what he claimed were his negative HIV test results in support of a summary judgment motion he brought. By doing so, John has waived his right to prevent disclosure of the very medical records and test results that could refute (or support) his contentions.”
Bridget B. was represented on appeal by Lawrence P. Grassini of Grassini & Wrinkle in Woodland Hills. John B.’s appellate lawyers included Donald A. Garrard of Garrard & Davis in Santa Monica.
The case is John B. v. Superior Court (Bridget B.), B169563.
Copyright 2004, Metropolitan News Company