Tuesday, March 15, 2011
C.A. Upholds Multimillion Dollar Herpes Award
By KENNETH OFGANG, Staff Writer
A wealthy businessman must pay over $4 million in damages to the woman he infected with genital herpes, the Fourth District Court of Appeal has ruled.
Div. Two said that Thomas Redmond, whose Redmond Products hair care company created the Aussie product line before Redmond sold the company for more than $100 million in 1997, had a duty to tell Patricia Behr of the risk of infection.
Justice Jeffrey Kings aid Redmond breached that duty, first by having unprotected sex without telling Behr of his condition, and later by telling her that he had it, but that it was “okay” to have unprotected sex because he was not having an outbreak. The justice’s March 2 opinion was certified yesterday for publication,.
The panel did, however, reduce the judgment by $2.425 million, to $4.3 million, on the ground that the jury’s finding that Behr would need $2.5 million for future medical expenses was speculative and not supported by substantial evidence.
According to testimony, Behr, then 52, testified she and Redmond, 20 years her senior, began having sex in October 2003 and broke up prior to her being diagnosed with the virus the following summer. After an 11-day Riverside Superior Court trial, jurors awarded her $3,600 for past medical expenses, $500,000 for past noneconomic loss, and $2.5 million for future noneconomic loss, in addition to the future medical award, which the appellate court reduced to $72,000.
The jury went on to award $2.675 million in punitive damages.
The defense argued on appeal that there was insufficient evidence to find liability, because it could not be proven whether Behr contracted the virus before or after she learned that Redmond was infected. King said it made no difference.
The jurist reasoned:
“Redmond admitted...that he was aware the virus could be transmitted in the absence of an outbreak, although he believed that the risk was ‘very low.’ The jury could easily conclude that by telling Behr it was ‘okay’ to have sex, when he knew there was some risk she would contract the disease, Redmond negligently or intentionally misled Behr into believing there was no risk of getting herpes. As such, there is sufficient evidence to support the jury’s findings that Redmond was negligent and fraudulently concealed from Behr the risk of contracting the disease.”
There was also sufficient evidence, the justice said, for the jury to find that Behr’s reliance upon Redmond’s disclaimer was reasonable. King noted that the couple was “several months into an intimate personal relationship” when Redmond disclosed that he’s had the virus for 30 years, and said that his “unequivocal statements... could reasonably suggest to Behr, as she testified, that Redmond had ‘all the answers about [the] disease,’ and reaffirm Behr’s belief that he cared for her and would not do something to harm her.”
While the panel agreed with the defendant that the speculative nature of the future medical award required a reduction in the compensatory damages, it found that reduction or retrial as to the punitive damages was not required.
Under the relevant case law, King explained, reconsideration of a punitive damage award might or might not be appropriate when a compensatory damage award is reduced, depending on the circumstances.
In this case, he said, since the ratio of punitive damages to compensatory damages after the reduction was only 1.75 to 1, it was “not so disproportionate as to render it ‘suspect ‘or to otherwise require reversal.”
The case is Behr v. Redmond, E048333.
Copyright 2011, Metropolitan News Company