The Supreme Court has ruling in the Dilling case where a woman sued the parents of her deceased finance for not disclosing to her that he had AIDS. The “Jane Doe” plaintiff had won $2 million in 2004, but the Supreme Court said that she had reason to question the health of Albert Dilling before they had unprotected sex.
Justice Charles Freeman wrote for the Court in a 30-page opinion, holding that “She ignored each and every fact that pointed to the truth, which was that Albert had a very serious health problem and she—having had unprotected sexual relations with him—was at risk for contracting it.”
For a copy of the opinion, click here
For a prior entry, click here.
The facts in this interesting case are below.
Doe first kissed Albert in July 1996, and, thereafter, they had
ual intercourse using a condom in late July or early August. When
Doe saw Albert naked, she noticed unusual dark-colored
pigmentation on his genitalia, and she asked him about it. Albert told
her that he had previously suffered from genital warts and that he had
them surgically removed by cauterization. Albert explained to her that
because he had worked as a landscaper he handled plant and fungal
materials that contaminated not only his hands, but also areas of his
body that his hands touched. Doe believed Albert’s explanation. As
Doe and Albert became closer, she decided to pursue her relationship
with him with the intention of marrying him and having his child.
With this in mind, the couple had unprotected sexual intercourse in
late August 1996.
In September 1996, Doe became ill with flu-like symptoms, a
very high fever, and a rash. Because the symptoms quickly resolved,
Doe believed it was simply the flu. She therefore did not seek medical
treatment and made no connection between these symptoms and her
unprotected sexual intercourse with Albert. Doe stated that around
this same time, Albert complained about having difficulty walking
straight. Albert experienced dizziness and was unstable and not sure-
In the fall of 1996, Albert traveled to Wyoming to purchase a
bar/restaurant. Doe and Albert became engaged around the end of
1996, and Doe visited him in Wyoming in early 1997. At that time
Doe found Albert looking “a little tired and worn out, thin.” She
asked him about his appearance and believed whatever he told her.
Doe acknowledged that during this visit with Albert, she observed
that he had “very dry skin, which was almost ashen looking.”
During Doe’s stay in Wyoming, Albert invited her to accompany
him to Reno, Nevada, where he had an appointment to consult with
a doctor about his health condition of heavy-metal poisoning. Doe did
not visit the doctor’s office with Albert, but Albert gave her a printout
of lab test results from a hair analysis that had been previously
performed on him, showing that he “had heavy-metals in his system.”
In May 1997, Doe met Albert’s parents, Kirk and Betty, for the
first time, when the Dillings returned to the Chicago area from their
winter residence. Kirk and Betty invited Doe and Albert to join them
for dinner at their home. According to Doe, the topic of Albert’s
health came up during this visit. Betty told Doe that Albert had
heavy-metal poisoning but that he would get well and that it was
Albert’s only health problem. Betty also told Doe that she and Kirk
were “in charge of [Albert’s] medical care,” and that Kirk, by virtue
of his long career as an attorney handling food and drug cases, “was
a medical expert in these matters.”In addition, Betty told Doe that she
and Kirk were “very concerned about their son’s health; that he would
Doe believed that
the Dillings were concerned about the couple’s happiness together.
The subject of Albert’s health was “a constant topic of
conversation” between Doe and the Dillings throughout 1997 and
1998, both during discussions over the phone and in person. The
Dillings repeatedly told Doe that heavy-metal poisoning was Albert’s
only health ailment, that he was receiving care from the right doctors
and that eventually he would get well.
Approximately a week after Doe met the Dillings, Albert had to
be taken to the emergency room because he suffered adverse reactions
after he had injected himself with ozone.8 Doe believed Albert had
experienced a stroke. On October 27, 1998, Albert was again taken
to the emergency room, this time by ambulance. As with his earlier
visit to the emergency room, he had again suffered an adverse
reaction from an ozone injection. Doe again believed that Albert had
suffered a stroke because he was temporarily unable to speak.
At the end of December 1998, Doe and Albert traveled to her
mother’s home in Michigan. During this visit Albert suffered
abdominal distress that was so severe “he was screaming in pain.”
Doe and her mother took Albert to the local emergency room.
Although Albert was treated and released, he was in such severe pain
that he was unable to complete the trip home to Chicago in one day,
and the couple was forced to stop overnight on the way back.
After Doe and Albert returned to Chicago from Michigan, Doe
told Betty about what had happened on the trip, including the fact that
Albert had showed Doe a toilet bowl full of blood. At that time Doe
was “getting more and more concerned” about Albert’s health, and
she asked Betty about the heavy-metal poisoning and why Albert was
not improving. Betty then asked Doe what Albert had eaten during
the Michigan trip, and Doe responded that she had purchased some
fresh cheese. Betty thought the cheese might have been spoiled, and
Doe agreed that “maybe it was, and that it could be food poisoning.”
Doe, however, further confided in Betty that she was anxious
about the deteriorating state of Albert’s health. Doe told Betty that
“Albert could be more seriously ill than what you think he has with
this heavy-metal poisoning. He appears to be … if I didn’t know
better, I would say he almost looked like a man who has AIDS. Could
he have AIDS? Is there some … Could he be really sick? Is there
something more wrong with him?” Betty answered Doe in the
negative. Doe stated that this conversation occurred within the earshot
of Kirk, who participated in it. Doe believed the Dillings’ statements.
During 1999 Doe and Betty spoke on the phone at least every
other day, and Betty continued to tell Doe that Albert was suffering
from heavy-metal poisoning. During these conversations, Kirk would
also often be on the speakerphone. Doe believed everything the
Dillings told her. Doe cared for the Dillings and felt like she was part
of the family. Doe believed that the Dillings also cared for her like a
daughter-in-law, even though she and Albert were not yet married.
After Doe and Albert returned from their Michigan trip, and also
around Father’s Day 1999, Doe suggested to the Dillings that Albert
should be evaluated by other physicians. Doe was “getting very
discouraged that [Albert] wasn’t getting any better” and was “frantic”
about his condition. Doe specifically suggested to the Dillings that
Albert should go to the Mayo Clinic for an evaluation. Doe had seen
the Mayo Clinic on the news and believed that “since [Albert’s]
problem was so unique *** [the Mayo Clinic] might be a good place
to address it.” Betty did not agree with Doe’s suggestion. However,
Doe admitted that the Dillings did not prevent Albert from going to
the Mayo Clinic and that the only question was who would pay for
the trip and treatment. Albert had no insurance and such a trip and
examination would have been extremely expensive.
Albert’s health continued to decline throughout 1999. Doe and
Albert lived in her apartment for almost a year until his death. During
that time, Doe did “everything” for Albert. When Albert could no
longer feed, dress or care for himself, Doe assisted him. Doe also
financially supported Albert. Albert eventually lost his ability to drive
and did not venture outside except for when Doe took him to visit the
Dillings on the weekends.
In the summer of 1999, Albert went to see Dr. Hauser, who had
been one of Kirk’s clients. Doe accompanied Albert on every visit to
Dr. Hauser and discussed Albert’s condition with him. Dr. Hauser
performed tests on Albert and, in June 1999, Dr. Hauser gave Doe a
laboratory report, which showed that Albert was suffering from Lyme
disease. Doe immediately called Betty and told her, “We finally have
a diagnosis. Now we know what’s really wrong with Albert.” Doe
“believed *** the doctor when he said Albert had Lyme disease.”
Toward the end of summer 1999, Doe began to notice changes in
her own physical condition. She had not paid much attention to her
own health prior to this period because she was focused exclusively
on Albert and his health concerns. Doe began to get very fatigued.
Her hair began to fall out, her gums bled profusely and she had a
yeast infection. In addition, her skin started splitting at various points
on her body and she developed sores all over. She attributed these
changes to the fact that she was a “full-time caretaker and running
Albert to the doctor two or three times a week and taking care of [her]
business and running around intensively–trying to keep it all
together.” Between 1994 and 1999 Doe never saw a doctor for any
type of medical treatment.
Even though Dr. Hauser diagnosed Albert with Lyme disease and
had given him antibiotics, Doe saw no improvement in his condition.
Around October 1999, Doe questioned Dr. Hauser about Albert’s lack
of response and improvement, and he suggested that Albert see a
neurologist. Prior to that next appointment, Betty told Doe for the
first time that Albert had a blood transfusion in 1979. Doe asked
Betty why she was just telling her this now and not earlier. Betty told
Doe that she did not know why she never told her. Doe admitted,
however, that she had knowledge prior to this statement by Betty that
Albert previously had a blood transfusion, but that Doe “doubted that
information at that time.”
On November 2, 1999, Doe took Albert to see Dr. Waitley, who
tested Albert for HIV. Doe admitted that she told Dr. Waitley that she
and Albert “had been married for 15 months,” even though that was
not true and they only remained engaged. Doe was with Albert when
Dr. Waitley informed them that Albert was HIV-positive. About one
week later, Doe was also tested and discovered that she, too, was
HIV-positive. Dr. Waitley told Doe that she could be his patient or
she could get treatment elsewhere, and that she had some time to start
treatment. Three weeks later, on November 29, 1999, Albert died of
In March 2000, Doe sought treatment for the first time for her
own HIV infection. Doe did not commence treatment earlier because
she was in “deep despair and anguish and in grief” over what had
happened and how the Dillings had treated her. At that point, she saw
Dr. Finlayson, a physician who took a more holistic approach to
medicine. Doe testified that Dr. Finlayson did not prescribe any
medications, such as antiretroviral drugs; instead, he told Doe to take
vitamin supplements. Doe saw Dr. Finlayson three more times
between March 1, 2000, and February 2001.
In March 2001, Doe started seeing Dr. Michelle Till, who is her
current treating physician. Dr. Till is the medical director of the
Women’s HIV Program at Northwestern Memorial Hospital. In May
2001, Dr. Till started Doe on highly active antiretroviral therapy
(HAART). Doe stated that her condition improved once she began the
As part of her case in chief, Doe presented the videotaped
deposition of Kirk Dilling, who had passed away prior to the case
going to trial. Kirk had been an attorney for 54 years, and the primary
focus of his legal practice was food and drug litigation, a practice for
which he became internationally known. During his career, Kirk had
represented many doctors, including Dr. Fuller Royal in Nevada, Dr.
Helmut Keller, who practiced in Germany, and Dr. Ross Hauser, who
practiced in the Chicago area. Kirk had recommended that Albert see
all of these doctors for his health ailments at one time or another.
In 1997 Kirk knew of the existence of HIV and AIDS, and also
that it was passed from person to person through unprotected sexual
intercourse and compromised a person’s immune system. Kirk,
however, denied that Albert ever had AIDS. Kirk believed that Dr.
Waitley had “misdiagnosed” Albert as being HIV-positive and that he
“killed [Albert] with drugs that caused his death in less than three
In 1992, Kirk had recommended that Albert see Dr. Keller in
Germany about his genital warts. Dr. Keller, to Kirk’s knowledge,
specialized in treating patients with cancer and did not treat patients
with HIV. Further, Kirk understood that Dr. Keller’s practice
included treating his patients with a modality called “Carnivora.”
Kirk believed that Carnivora was used to treat cancer. Kirk denied
that he knew by 1997 that it was used to treat the immune system.
Notwithstanding this, Kirk previously stated in a discovery deposition
that Carnivora was a remedy thought to benefit the immune system
and not to fight cancer. Kirk responded that Carnivora “affects the
immune system,” but not that it was a “remedy” for it.9
When questioned as to why he failed to specifically list Dr. Keller
in his answers to interrogatories which asked to identify all physicians
who treated Albert from 1992 until the time of Albert’s death, Kirk
stated that he listed the name of Dr. Keller’s clinic and that he had
also noted that Albert was treated for genital warts there.
Over the years, Kirk would recommend a specific treatment for
Albert if he “knew anything about it.” One treatment that Kirk felt
“qualified” to recommend to Albert was chelation therapy.10 Kirk and
Betty had paid thousands of dollars for Albert’s medical treatment.
Kirk acknowledged that Doe had suggested that Albert be evaluated
at the Mayo Clinic, but that he and Betty “didn’t agree to pay for it.”
Kirk admitted telling Doe that Albert was suffering from heavy-
metal poisoning and Lyme disease. When asked if he told Doe that
Albert was infected with HIV, Kirk stated, “No, because he wasn’t.”
Kirk denied ever telling Doe that Albert had AIDS, “because he
didn’t [have it].”
The Dillings’ former son-in-law, James Walgreen, also testified
on Doe’s behalf at trial by evidence deposition which was read to the
jury. Walgreen was married to the Dillings’ daughter, Victoria, for 20
years. He knew Albert, who was Victoria’s twin brother. At the time
of his deposition, Walgreen had been recently divorced from Victoria.
During their marriage, Walgreen and Victoria were concerned about
Albert’s health and they were told that Albert suffered from Lyme
disease and lead poisoning.
Walgreen testified to an incident that occurred while he was still
married to Victoria that he said took place “approximately a year
before [Albert] passed away,” meaning in November of 1998.
Walgreen and Victoria were visiting the Dillings’ home, and Betty
told them that Albert had AIDS. This conversation occurred in the
sunroom of the Dillings’ home. Walgreen noted that “someone
should inform [Doe].” He was then told by Kirk and Betty that they
had not yet met Doe, and that he “should keep quiet” because it was
“none of [his] business.”
Counsel for the Dillings extensively questioned Walgreen with
respect to his bias against them as a result of his divorce proceedings
with their daughter Victoria. Walgreen maintained that his testimony
had nothing to do with his divorce. He denied being biased against
the Dillings, and he stated that he liked Kirk. Walgreen also admitted
that he never passed along the information of Albert’s AIDS to Doe,
even though he had several opportunities to do so.