Metropolitan News-Enterprise


Friday, July 31, 2015


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C.A. Upholds $909,900 Award for Infecting Woman With Herpes

Derides Appellant for ‘Stark Transgression’ Against ‘Norms of Any Decent and Civilized Society’


By a MetNews Staff Writer


The Sixth District Court of Appeal yesterday upheld a $909,900 judgment against a Palo Alto cardiologist who was sued by his ex-wife for infecting her with genital herpes, and lashed out at the appellant for his conduct.

The award against Dr. William Clusin, an associate professor of medicine at Stanford, includes $398,400 in punitive damages.

Plaintiff Jane Hetrick testified that when she was dating Clusin in 2004, she specifically asked, before embarking on a sexual relationship, as to whether he had herpes, and he denied that he did. Her inquiry stemmed from her brother nearly dying from herpes-related encephalitis.

They were wed in 2007.

She said that she found out that her husband had lied to her about having herpes when his son from a previous marriage revealed to her that Clusin had infected his then-wife with herpes. As it turned out, he had also infected another former wife.

Disdain for Conduct

Rebuffing Clusin’s insistence that the punitive damages were excessive, Presiding Justice Conrad Rushing declared:

“We believe the trial court could very reasonably conclude, as indeed we have concluded on such of the record as has been placed before us, that defendant, with full knowledge he was carrying what most people would view as a noxious disease, and without disclosing that fact to anyone, burdened three wives and quite possibly other sexual partners with that affliction. The most charitable construction we can place on his conduct, as found by the trial court upon ample evidence, is that he viewed the disease as insufficiently serious to require its disclosure, even when pointedly asked whether he was carrying it. The staggering hubris of this conduct, and its stark transgression against the norms of any decent and civilized society, amply justified a very substantial award of punitive damages.”

Rushing continued:

“Short of forcible rape, or intercourse with someone incapable of consent, it is difficult to imagine a greater outrage against the bodily autonomy and sexual sovereignty of another individual than to fraudulently induce them to enter an intimate relationship with the knowledge that doing so will expose them to likely infection. In plaintiff’s case, defendant’s conduct inflicted what threatens to be a lasting impairment of her ability and willingness to enter into intimate relationships with anyone else. His seemingly total lack of empathy for his victims, his repellent attempts to imply that they bear responsibility for their injuries, and his manifest lack of remorse for his ethically indefensible and morally corrupt conduct, further justify the award. If there is a reason to overturn or reduce the award, it has not been brought to our attention and has not otherwise surfaced in our review of the case.”

English Case

The jurist noted that Clusin had cited a British case for the proposition that “[d]raconian punishment for herpes is against public policy.” He responded:

“That decision arose from a criminal prosecution under the rule of British law that ‘a person who is suffering from a sexual disease and who has sexual intercourse with a partner, not intending deliberately to infect her, but knowing that she was unaware of his condition, may be guilty of recklessly inflicting grievous bodily harm.’…Nothing in that case supports the proposition defendant attributes to it.”

Rushing said in a footnote:

“One passage of the decision resonates strongly here: ‘We did not find the evidence of the appellant impressive or credible. In our judgment, he was seeking to minimise every piece of evidence against him, and to put a construction on events at its most favourable to him. His evidence was neither accurate nor truthful on key issues such as his dealings with [the victim] and what occurred on the day when he pleaded guilty. His evidence was at odds with other objective evidence. Where his evidence conflicted with that of [the victim] and [the appellant’s solicitor], we have no difficulty in accepting their accounts rather than his.’

Civil Penalties

Under a 2005 California Supreme Court decision, Rushing said, the reasonableness of punitive damages must be weighed in light of the “relationship between the award and civil penalties authorized for comparable conduct.” He wrote:

We doubt that an extended demonstration is required to sustain the proposition that a doctor who deliberately infected a patient with an ineradicable biological agent would be almost certain to lose his license to practice medicine, and thus his means of livelihood. We cannot say that an award of slightly less than $400,000 is out of proportion to such a penalty.

Throughout the opinion, Rushing criticized the inadequacy of Clusin’s brief. He noted:

“Counsel for plaintiff has asked us to take judicial notice of a decision in which, more than a year before defendant filed his opening brief here, the First Appellate District chided him for violations resembling those in evidence here….We decline the implicit suggestion that we should impose sanctions. Though an order to that effect would no doubt be justified, we have concluded that plaintiff is sufficiently sanctioned by the judgment in this case, which we will affirm.”

That case involved contempt of court findings against Clusin for violating a stay-away order obtained by Hetrick. Justice James A. Richman wrote:

“Although Clusin launches a barrage of procedural and substantive objections that go back to a 2007 paternity judgment in San Diego, the sole issue before us is whether substantial evidence supports the four sustained instances of contempt. We conclude that three of the four counts of contempt are in proper form and supported by substantial evidence, but one is not. Accordingly, we affirm in part and reverse in part.”

The contempt count that was not sustainable was based on the finding that on Aug. 3, 2008, Clusin “was found hiding in the bushes adjacent to [Hetrick]’s residence.” The flaw, Richman said, was that there was no reference in the testimony to an event on Aug. 3.

In the case decided yesterday, Clusin had, on June 19, 2012, filed a request for a fee waiver. Two days later, the court responded:

“It appearing that appellant Clusin fails to meet the standards of eligibility as set forth in Judicial Council form FW-001, the application for waiver of court fees and costs as to the filing fee due on the notice of appeal filed June 13, 2012, is denied.”

The case is Hetrick v. Clusin, H038435.


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