Oregon Jury Awards Woman $900,000 In Herpes Case After Defense Counsel Compares Claim To Spilled Coffee

It is apparently not a good argument to compare contracting herpes to spilled coffee.  It took just two hours for a jury to find a 69-year-old Oregon dentist liable for giving a nurse herpes.  It was however the attorneys arguments in court that raises eyebrows.  Defense attorney Shawn Lillegren attacked the nurse as a liar who said that she was just trying to be the next spilled coffee litigant to win the litigation lottery and that she needs to grow up. If so, she got it. The jury awarded her the full amount demanded in damages: $900,000 for her pain and suffering

The plaintiff was looking for a long-term relationship when she dated the retired dentist and had sex on their fifth date. She said that she insisted on his wearing a condom but that he took it off without her realizing it. She later contracted herpes. Lillegren mocked the claim, insisting that “everyone knows you’re at risk for an STD.” He continued: “Grow up. Come on. You’re an adult. He’s an adult. They had sex . . . The point is she is not some little innocent victim.” He then added for good measure that she was just the latest money-hungry litigation: “Go for a million — that’s plaintiff’s message. God bless America. Go for it. Got some coffee to spill on me?”
The jury did find the nurse 25 percent responsible in a comparative negligence verdict — leaving the doctor to pay 75 percent of the damages. It not only found fault on his part but found that he committed battery by exposing her to herpes without her consent.

We discuss these STD cases in class, particularly as a form of battery. There was a time when courts were entirely unsympathetic — much like the defense counsel in this case. However, that has changed and now such cases are routine. Celebrities like Robin Williams have been sued under such claims.

One of the leading early cases is Kathleen K. v. Robert B., 150 Cal.App.3d 992 (1984), where the court reversed in favor of a plaintiff alleged that she was given genital herpes. Ironically, that case also involved a doctor who gave a nurse genital herpes. He also argued that she took the risk and that courts should not “supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct.” The Court disagreed and said that the sex was based on a misrepresentation of a material fact (his being a carrier of a STD).

Factual causation can be difficult to prove for individuals with an active sex life. In this case, the plaintiffs’ argued that she had had a medical checkup a few months before without any sign of herpes. Then she had an outbreak 11 days after sex with the dentist. She alleged that the exposure cause her to suffer from anxiety and depression and that the drugs that she took for those conditions caused her weight to balloon by 30 pounds.

What is clear is that this type of defense argument comes at considerable risk. The perceived callous attitude by the lawyer can be attributed to the client — magnifying the potential findings and damages.

Source: Oregon Liveas first seen on ABA Journal

13 thoughts on “Oregon Jury Awards Woman $900,000 In Herpes Case After Defense Counsel Compares Claim To Spilled Coffee”

  1. Insurance lawyers know they are going to win…… It’s just a matter of courts….

  2. Leave your specimen in the jar. Take the jar to the county health department. Have the stuff in the jar analyzed. If it comes back with HIV, herpes, etc., then you know not to have sex with that person.

    Myself, if a person can’t do a specimen for me OR let me see their latest STI report (mine included) then we don’t have sex.

    Bottom line…have them leave a specimen in a cup. Or see their medical report. Sorry, but that’s how it is these days. Personally, I just don’t have sex in the last 20 years. Ain’t missing a thing. Besides if you ain’t got that ring, you don’t get to ding a ling.

  3. So when my beautiful dental assistant and her dentist boss more or less invited me to join their game, I should be glad that I hadn’t learned, at 32 years of age, the free ways of sex in Sweden, and the concomitant risk of herpes.

    In JTs case it was genital herpes, but an OT question, how do dentists etc protect themselves from mouth herpes transferring via their hands. Do they all use gloves nowadays?

    Until HIV and herpes popped up there was full reliance on the honest participant. The kids are getting away now from protectng themselves, say the health authorities here.

    But suits never make the headlines here. Perhaps they occur.

  4. Doubt I’d ever be in that state, but just in case, I’m making a note to never retain that firm for litigation defense- talk about remarkably blind when it comes to juries.

  5. Is it possible that the defense attorney really didn’t know the full story about the coffee? I’m surprised, well, not really, about the number of people who claim the excesses of tort because the woman was so stupid that she didn’t know that coffee was hot but managed to rip off good ole MickeyD. My former husband was a victim of their too-hot coffee. He had 3rd degree burns on one buttock. I still use their bathrooms when traveling but not their food or drinks.

  6. The coffee case… Hmm, you mean the one where a powerful corporation knowningly allowed dozens of their customers to be severly injured over the course of years, all without lifting a finger to protect them? That case?

    Yeah, I’m sure that telling the jury this nurse is just like that poor old woman burned by McDonalds was a terrible blow to her case. If I were on the jury I would treat that as an admission of guilt.

  7. Yeah, what Mike said too.

    PLUS the defense lawyer was not just a fool but a — well, nevermind. The point is hot coffee in a fast-food joint is NOT like sex with someone you know, you are supposed to respect, and you fail to warn and then fail to protect from something that really is rather horrible. The mockery the defense counsel used to try to stir up prejudice against the plaintiff came back and kicked his client’s behind for good reason: He had as little respect for the properly indignant position of the plaintiff as his client had displayed for her welfare as a sexual partner. Shame on both of them.

    It’s time for people to start regarding responsibility towards others and accountability for their conduct as serious matters. Just as serious OR MORE SERIOUS than their liability insurance coverage.

  8. What Mike S said.

    Plus, let me add that corporate propaganda also produces mental bubbles like the one which engulfed the defense lawyer in this case.

  9. This is yet another example of how the corporate propaganda attack upon Torts law has succeeded in creating false memes. In this case it is that plaintiffs are abusing the court system i winning huge judgments. The reality is that in the history of Torts litigation people injured usually have a much harder time in pursuing and winning their claims.

  10. I’m assuming that the “coffee” remark is in regards to Liebeck v. McDonalds. Perhaps plaintiff’s counsel should have done some research before making such remarks; the jury found in favor of the defendant because the McDonalds that Ms. Liebeck went to was keeping the coffee hotter than it was supposed to be kept, at 180+ degrees F while other establishments choose to serve coffee around 140 degrees F. A scholar in thermodynamics and human burns testified that 180 degree coffee would give third-degree burns in 2-7 seconds, and that burn severity decreases exponentially as you approach 155 degrees. McDonalds was also shown to know there was a history of their customers receiving third degree burns as a result of coffee that was too hot. How much Ms. Liebeck was awarded is not known; she only wanted $20k to cover medical costs, but the jury awarded her $2.7 million, a trial judge reduced it to $480k, but then the case was settled out-of-court privately.

    All in all, it was a pretty terrible comparison for anyone with more than passing familiarity with the case. Of course, given that plaintiff’s counsel blamed the victim, despite the victim requesting a condom, this should perhaps come as no surprise. I wonder how counsel’s tune might have changed if this were HIV instead of herpes, or if it was his child who contracted an STD from a partner who waited until after intercourse to explain.

    Finally, I would just like to say that this is yet another argument for comprehensive sex education. This retired dentist, being a medical professional, should have been more than capable of understanding the consequences of the infection he carries, including the fact that it can spread when he does not have an outbreak.

  11. My dad used to have a lot of business at City Hall, as a kid I would go with during the summer first out of boredom & then because I found court to be a really fun diversion (if you get the right trials). Small claims was my favorite because it was quick & there wasn’t a lot of legal wrangling I didn’t understand.

    One case I remember was a bicyclist hit by a bus. It was proceeding as you might expect until the bus companies lawyer asked the defendant why we should believe the bus hit him & not he hit the bus. That was the first time I heard laughter in the courtroom & I realized all lawyers are not gods.

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