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