Behr v. Redmond

• Decision Date: 22 June 2011
• Docket Number: No. E048333.,E048333.
• Parties: Patricia BEHR, Plaintiff and Respondent, v. Thomas REDMOND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

193 Cal.App.4th 517

123 Cal.Rptr.3d 97

2011 Daily Journal D.A.R. 3795

Patricia BEHR, Plaintiff and Respondent,

v.Thomas REDMOND, Defendant and Appellant.

No. E048333.

Court of Appeal, Fourth District, Division 2, California.

March 2, 2011.

As Modified March 25, 2011.

Review Denied June 22, 2011.

Law Office of Robert C. Frisbee, Robert C. Frisbee; Frisbee & Bostock, Robert M. Frisbee; Greines, Martin, Stein & Richland, Kent L. Richland, Robin Meadow, Los Angeles, and Michael Anthony Brown for Defendant and Appellant.

Slovak Baron & Empey, David Baron, Palm Springs; Payne & Fears and Paul D. Herbert, San Francisco, for Plaintiff and Respondent.

OPINION

KING, J.

I. INTRODUCTION

Plaintiff and respondent Patricia Behr sued defendant and appellant Thomas Redmond for damages arising from the alleged tortious transmission of genital herpes. By special verdict, the jury made findings favorable to Behr and found that she had suffered compensatory damages of $4,003,600, including $2.5 million for future medical expenses. In a separate trial, the jury found that Behr was entitled to punitive damages in the amount of $2.75 million.

On appeal, Redmond contends: (1) the evidence is insufficient to support a finding that Behr contracted the herpes virus from sexual contact with him prior to his disclosure of the disease, and that he cannot be liable for transmitting the disease after his disclosure; (2) the special verdict is fatally defective for failing to include findings as to the timing of Behr's infection, the existence of a special relationship between the parties for purposes of establishing negligent infliction of emotional distress, and any misrepresentation by Redmond; (3) the compensatory and punitive damages awards are excessive; and (4) the court erred in denying his motion to strike Behr's postjudgment request for expert witness fees.

We reject Redmond's argument concerning the sufficiency of the evidence as to his liability for transmission of herpes. We conclude he has waived his argument concerning the failure of the special verdict to include a finding regarding the timing of Behr's infection, and that his argument concerning the absence of a finding regarding a special relationship is without merit. However, we agree that the special verdict cannot support the judgment on Behr's cause of action for fraud by misrepresentation. We also agree with Redmond that the award of damages for future medical expenses is excessive; but reject his argument as to the award of punitive damages. Finally, we agree with Redmond that Behr is not entitled to recover her expert witness fees.

II. FACTUAL SUMMARY AND PROCEDURAL HISTORY ¹

In 1975, Redmond learned he had genital herpes. When an outbreak of the disease occurs, blistering lesions and scabs are produced on or near the genitals. During the time relevant here, Redmond experienced approximately two outbreaks of the disease each year. He knew the disease was contagious and believed the risk of transmitting the disease to a sexual partner was high when he had an outbreak and very low—but not entirely without risk—when he had no lesions.

Redmond met Behr in May 2001 at a party at Redmond's home in Minnesota. In September 2003, they met for a lunch date in the Palm Springs area, where Behr lived. In the weeks that followed, they occasionally talked by telephone and met for dinner. The two began a sexual relationship in October 2003. Prior to having sex, Behr told Redmond that she “was free of disease.” According to Behr, Redmond told her he was “healthy like I was.” This discussion led her to engage in unprotected sex with Redmond.

Just prior to having sex the first time, Redmond told Behr he had a penile implant because of prostate cancer. He did not tell Behr he had herpes. From October 11, 2003, through December 13, 2003, they had sex on 10 occasions.

In February 2004, Behr traveled to Redmond's home in Scottsdale, Arizona to be with him for the Valentine's Day weekend. On February 12, 2004, the two took a bath together. Redmond told Behr (according to Behr): “ ‘I need to tell you that I have herpes. I've had it for a long time, about 30 years. And I think I'm having an outbreak, so we can't have sex.’ ” They did not have sex that evening.

The next day, Redmond told Behr he was wrong about having an outbreak and that it was “okay” to have sex. They had sex that day and the following day, February 14, 2004.

Expert witnesses for both parties indicated that herpes can be transmitted even when the person with the virus is asymptomatic.

When asked at trial why she had sex with Redmond after being told he had herpes, Behr said: “Because I trusted him. He [k]new everything there was to know about prostate cancer. He had done so much research on it. So I just thought that he would have all the answers about a disease that he had for 30 years. So I trusted him and I believed that he wouldn't hurt me. I thought he had all the answers.”

At some point, Behr contracted the genital herpes virus. Behr testified she had her first outbreak in March 2004, although she did not realize it was herpes at the time. She explained that she “didn't know what was going on” and she “didn't ... want to believe it.” According to Behr's expert witness, some people who suspect they have been infected with a sexually transmitted disease respond by being in denial about the disease. Behr did not see a doctor about her symptoms.

In April 2004, Behr travelled to Spain to be with Redmond. During a 10–day period from April 8, 2004, to April 17, 2004, they had “sex mostly every night.” After she returned from Spain, the two had no further sexual contact.

Behr testified she suffered a second outbreak in April 2004. In June 2004, Behr met with Natalie Rue, a nurse practitioner. Behr testified she asked to be tested “for everything” and to see if she “had any diseases.” Rue, however, did not test Behr for herpes. Instead, she tested Behr for human immunodeficiency virus (HIV). The test results were negative. Behr was relieved and thought that she was “just being paranoid.”

Behr testified she suffered additional herpes outbreaks in September 2004, December 2004, and February 2005. As more outbreaks occurred in the same part of her body, she began to suspect she had a disease. During the February 2005 outbreak, she went to see Rue. Rue noted a lesion on Behr's genitalia, which she described as a “recurrent lesion.” ² Test results confirmed that Behr had herpes. Behr's and Redmond's expert witnesses relied on Rue's notes in opining that the outbreak in February 2005 was likely a recurrence and that Behr had suffered previous outbreaks.

In August 2005, Behr filed a complaint against Redmond alleging, as is relevant here, causes of action for battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, fraud by concealment, and fraud by misrepresentation. The essence of these claims is that Redmond knew he had herpes when he and Behr had sex; Redmond initially concealed the disease from Behr; he later informed Behr of the disease, but misrepresented that it would be safe to engage in sex; and Redmond's actions, concealment, and misrepresentations caused Behr to contract herpes and suffer damages.

The case was tried to a jury, which returned special verdicts in favor of Behr. The special verdict form returned by the jury includes the following questions (with the jury's answers in parenthesis): “Did Patricia Behr become infected with genital herpes from Thomas Redmond?” (Yes); “Did Thomas Redmond inform Patricia Behr prior to them having sexual intercourse that he was infected with genital herpes?” (No); “Was Thomas Redmond negligent?” (Yes); “Was Thomas Redmond's negligence a substantial factor in causing harm to Patricia Behr?” (Yes); “Did Patricia Behr's negligence contribute to her contraction of genital herpes?” (No.)

The verdict form then called for the jury to specify the amount of damages suffered by Behr caused by the negligent transmission of genital herpes to her by Redmond. The jury responded with: $3,600 for past economic loss (medical expenses); $2.5 million for future economic loss (medical expenses); $500,000 for past noneconomic loss, including physical pain and mental suffering; and $1 million for future noneconomic loss, including physical pain and mental suffering.

Next, the special verdict form included the following questions (and answers): “Did Thomas Redmond fraudulently conceal his genital herpes from Patricia Behr before he had sexual intercourse with her?” (Yes); “With regard to his sexual relationship with Patricia Behr, was Thomas Redmond's conduct outrageous?” (Yes); “Did Thomas Redmond intend to cause Patricia Behr emotional distress or act with reckless disregard of the probability that she would suffer emotional distress?” (Yes); “Did Patricia Behr suffer severe emotional distress?” (Yes); “Was Thomas Redmond's conduct a substantial factor in causing Patricia Behr's severe emotional distress?” (Yes); “Did Thomas Redmond touch Patricia Behr with the intent to harm or offend her?” (Yes); “Did Patricia Behr consent to be touched?” (No); “Was Patricia Behr harmed or offended by the touching?” (Yes); “Would a reasonable person in Patricia Behr's situation have been offended by the touching?” (Yes.) With respect to these questions, the jury then set forth the same amounts of damages it had identified for the questions concerning negligence.

Finally, the jury answered “Yes” to the question whether Behr was “entitled to a judgment for punitive damages....”

The issue of punitive damages was tried separately. The jury returned a special verdict setting the amount of punitive damages at $2.75 million. Based on the special verdicts, the court entered judgment in Behr's favor and against Redmond in the amount of $6,753,600.³

Redmond moved for a new trial on the ground, among others, that the amount of damages awarded to Behr was...