The Oregonian reports that the first reported case of one person suing another for intentionally transmitting genital herpes went to trial in Oregon. There, the plaintiff prevailed and was awarded $900,000 by the jury.
The case originated with a 49-year old woman meeting a 69-year old retired dentist on the dating website eHarmony. After going on four dates, the two had sex. According to the plaintiff’s testimony, she asked the man to wear a condom, but suddenly, “he wasn’t wearing one and it was too late.” Afterwards while they were lying in bed, the man divulged that he had genital herpes. The plaintiff immediately kicked him out of the house.
Eleven days later, the woman experienced a herpes outbreak and thereafter experienced repeated, painful outbreaks. She had a negative reaction to the anti-viral medication, which caused her hair to fall out. She then experienced anxiety and depression, and gained 30 pounds as a result of the medications she took.
Accordingly, the woman filed a lawsuit against the dentist and alleged that the dentist was negligent in his sexual encounter with her and that he committed battery by intentionally transmitting herpes to her. She argued that the dentist had a duty to tell her that he had genital herpes before they engaged in unprotected sex even though the dentist was not experiencing any symptoms at the time and did not know that he was contagious.
The dentist countered that he did not know that he could be contagious and spread herpes at all times. He testified that he told her that he had herpes, not out of guilt, but rather, because he liked her and wanted to alert her that there might be times when he had an outbreak whereby they should refrain from sex.
In addition, the dentist argued that the plaintiff was careless in not demanding more adamantly that the dentist wear a condom because unprotected sex always carries the risk of transmitting an STD. In addition, the dentist tried to chip away at the woman’s credibility by suggesting that she was lying about her sexual history and that she could have contacted herpes from another partner. The woman countered with medical evidence that she was declared STD-free by a doctor only days before dating the dentist.
The jury returned a 7-2 verdict finding the dentist liable for negligence and battery. The jury found that the dentist was 75% negligent and the woman was 25% negligent. Overall, the woman was awarded $900,00 in damages.
