Opinion
CV176037191
10-30-2019
David Mancini v. Heidi Bishop
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shortall, Joseph M., J.T.R.
MEMORANDUM OF DECISION
Joseph M. Shortall Judge Trial Referee.
Plaintiff David Mancini holds the defendant Heidi Bishop responsible for his contraction of genital herpes and has sued her for damages, alleging negligence, fraud and the negligent infliction of emotional distress in her failure to warn him, prior to their engaging in sexual relations, that she was a carrier of that disease. In her answer to the complaint the defendant admits that, prior to and at the time she became sexually intimate with the plaintiff, she knew or had reason to know that she had genital herpes, and that, prior to becoming sexually intimate with the plaintiff, she had a duty to inform him that she was infected with this contagious and incurable disease. She denies that she neglected to tell the plaintiff that she had the disease.
In his complaint plaintiff had also included counts for intentional infliction of emotional distress and battery. At the conclusion of trial he advised the court that he was not pursuing recovery on those counts.
The operative answer to the complaint is that dated May 9, 2018, docket entry #144.
By way of special defenses the defendant asserts that this lawsuit is barred by the applicable statute of limitations, that the plaintiff was contributorily negligent and that he "destroyed documents, including text messages, showing that he had been warned of the defendant’s condition prior to engaging in sexual relations with the defendant."
This case was tried to the court on August 15, 2019. Both the plaintiff and defendant testified, and the defendant called two witnesses to support her claim that the plaintiff was aware of her condition before he engaged in a sexual relationship with her. Based on its assessment of the credibility of the witnesses and the weight to be given their testimony as well as the meaning and weight to be given the exhibits introduced by the parties, the court concludes that the plaintiff has proven by a preponderance of the evidence the allegations of counts one (negligence) and three (negligent infliction of emotional distress) of his complaint and by clear and convincing evidence the allegations of count two (fraud) of his complaint. In other words, he has satisfied the court that it is more likely than not that the defendant failed to advise him, before they embarked on a sexual relationship, that she was infected with genital herpes and that it is "highly probably true"; Miller v. Commissioner of Correction, 242 Conn. 745, 794 (1997); that the defendant failed to disclose a material fact to the plaintiff; namely, that she had genital herpes, when she had a duty to do so.
In testimony that the court found credible the plaintiff established that, prior to engaging in unprotected sex with the defendant, he had never exhibited symptoms of genital herpes or been diagnosed with the disease. Further, his relationship with defendant extended over more than two years, from April 2014 to October 2016, and was monogamous on his part. Finally, after engaging in unprotected sexual relations during his relationship with defendant, plaintiff was diagnosed with genital herpes for the first time. Plaintiff introduced expert testimony, in the form of treatment records; exhibit 5; documenting the testing done in November 2016 that resulted in his diagnosis with "herpes simplex infection of penis." Exhibit 5, p. 1.
Although she conceded that the herpes virus is spread by sexual contact, the defendant argued at trial that the plaintiff required medical expert testimony to establish the causal connection between his sexual relations with the defendant, a person infected with the herpes virus, and his contracting the disease. While the defendant cited no case law supporting such a requirement, the court’s research turned up one such case. See N.F. v. A.S., 2017 WL 3276452 (Tex.Ct. of Appeals 2017). More common, however, were cases dispensing with the need for expert testimony. See M.M.D. v. B.L.G., 467 N.W.2d 645, 647 (Minn.Ct. of Appeals 1991); Hamblen v. Davidson, 50 S.W.3d 433, 440 (Tenn.Ct. of Appeals 2001); Loveridge v. Chartier, 153 Wis.2d 773, 452 N.W.2d 585 (Cir.Ct. Milwaukee Co. 1989); B.N. v. K.K., 312 Md. 135, 138-39 (Md.Ct. of Appeals 1988).
This court believes that a reasonable and logical inference may be drawn from the admitted fact that the herpes virus is spread by sexual contact and the proven facts that the plaintiff had never before been diagnosed with or exhibited symptoms of genital herpes and engaged in a monogamous sexual relationship with the defendant, a carrier of the virus, for over two years, after which he was diagnosed with the disease, that the cause in fact and the proximate cause of his contracting genital herpes was his sexual contact with the defendant.
In an analogous context a Connecticut trial court has found that the plaintiff in a dissolution matter had satisfactorily proven, without expert testimony, that she was infected with the Human Papillomavirus (HPV) as a result of her husband’s extramarital affair with an unknown woman or women.
(P)roof of any affair is the plaintiff’s contraction of Human Papillomavirus (HPV). Her uncontroverted testimony is that she has never had a sexual partner other than the defendant in her entire fifty-one years of life and yet she has this virus in her body. The defendant argues that without expert testimony there is no evidence as to how the plaintiff became infected with HPV ... The plaintiff ... testified that she had the disease and that she must have gotten it from the defendant, as she has never had another sexual partner. The fact that HPV is a sexually transmitted disease that can only be passed from one person to another by genital contact of some kind is generally known today and would be considered within the common knowledge of the general public.Nolan v. Nolan, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTFA 09 4017263, 2012 WL 2899129 (Jan. 17, 2012).
This court finds that the plaintiff has proven the causal relationship between his sexual relationship with the defendant, a carrier of the genital herpes virus, and his infection with that virus.
Defendant seizes on language in plaintiff’s exhibit 5a that the test that disclosed his herpes infection was one that "cannot distinguish between recent and past infection." Neither the plaintiff nor the court relied on that test to prove anything other than that the plaintiff had genital herpes. The causal connection with defendant’s failure to warn him of her infected condition before they engaged in a sexual relationship is proven by the facts cited in the body of this decision.
The defendant testified that she told plaintiff that she had herpes before they became sexually intimate. If that were true, the degree of plaintiff’s anger when he was diagnosed would be inexplicable. That anger was testified to by the defendant and is exhibited in text messages between the parties in October 2016. See exhibit 7. In any event, the defendant’s testimony is contradicted by her text message of October 8, 2016: "I should’ve told you. I know I was wrong (sic)." Id.
She also introduced testimony from a friend of long standing that described an incident when the friend allegedly asked the defendant why she was taking Valtrex, a known treatment for genital herpes, to which the defendant responded that she "had sores down there." This exchange was supposed to have occurred in the presence of the plaintiff and before the parties had begun their sexual relationship, and the plaintiff is supposed to have laughed and responded, "That sucks." The court finds it highly unlikely that the defendant’s friend would have initiated such a personal conversation in the presence of a third party, the plaintiff, someone the friend barely knew. The intimation that the plaintiff knew or should have known that defendant had herpes as a result of this incident is again contradicted by the plaintiff’s anger when he was diagnosed. In sum, the court does not credit the testimony that such an event occurred.
The defendant’s special defenses may be swiftly dealt with. Her statute of limitations defense was rejected by the court (J. Moore, J.) in denying her motion for summary judgment. See docket entry #156.01. The court considers this the law of the case and perceives no reason why it should depart from the court’s well-reasoned decision. The defendant cites no authority for his second special defense; namely, that one engaging in sexual relations has a duty to employ some form of protection because unprotected sexual activities might result in his contraction of a sexually transmitted disease, and the court knows of none. In the absence of such a duty the plaintiff cannot be held to be negligent in failing to do so. Finally, the defendant introduced no evidence of the plaintiff’s destruction of text messages or any other documents evidencing that he had been warned of the defendant’s infection.
The court finds that the defendant is liable under each of the three remaining counts of the plaintiff’s complaint for his fair, just and reasonable damages. Plaintiff’s economic damages include his past medical expenses of $948.31. See exhibit 1. While the plaintiff testified and the court accepts that he will have future expenses for treatment of the recurring outbreaks that are part of a genital herpes infection, the record is insufficient for the court to quantify the cost of such treatment. Therefore, the court will award nothing for future economic damages.
The plaintiff has real and serious noneconomic damages as a result of his contraction of genital herpes. He has experienced and is subject to future outbreaks that involve itching, burning, blistering and swollen lymph nodes in the genital area, as well as flu-like symptoms such as muscle aches, fever and headaches. His infection has exacerbated a pre-existing depression, involving his rumination over his infection with a permanent and incurable disease. He is embarrassed by his obligation to inform any future sexual partners of his infection, which has led to a loss of interest in forming relationships. For all of these non-economic damages the court considers that a fair, just and reasonable award is $30,000.00.
JUDGMENT ENTERS for the plaintiff in the amount of $30,948.31.