Doe v. Roe

• Decision Date: 01 November 2021
• Docket Number: A21A1095
• Citation: 864 S.E.2d 206,362 Ga.App. 23
• Parties: DOE v. ROE.
• Court: Georgia Court of Appeals

362 Ga.App. 23

864 S.E.2d 206

DOE

v.ROE.

A21A1095

Court of Appeals of Georgia.

November 1, 2021

Reconsideration Denied November 17, 2021

Frank G. Podesta, William Brent Ney, Lawrenceville, for Appellant.

Douglas J. Davis, Atlanta, for Appellee.

McFadden, Presiding Judge.

This case involves John Doe's claims that Jane Roe transmitted genital herpes

to him and Roe's counterclaims that Doe falsely accused her of having genital herpes.¹ Doe appeals from summary judgment rulings against him and the exclusion of a doctor's affidavit filed with his summary judgment motion. We affirm all of the contested trial court rulings except the denial of summary judgment to Doe on the counterclaim for intentional infliction of emotional distress, which we reverse.

The trial court properly excluded the affidavit because it referred to documents that were not identified in or attached to the affidavit; so we affirm that ruling. We also affirm the trial court's grant of summary judgment to Roe on Doe's negligence and battery claims; the negligence claims fail because required expert evidence to answer medical questions of causation is missing and the battery claim fails because there is no evidence of an intentional unauthorized touching.

As for the trial court's denial of Doe's motion for summary judgment on Roe's counterclaims, we reverse the denial of summary judgment on the intentional infliction of emotional distress counterclaim because Roe failed to show that her alleged distress was sufficiently severe. But we affirm the trial court's denial of summary judgment as to the counterclaims for defamation and false light invasion of privacy because there are genuine issues of material fact as to those counterclaims.

1. Facts and procedural posture.

Doe filed a complaint against Roe, alleging that she had transmitted genital herpes

to him. Doe set forth negligence and battery claims and also sought attorney fees and punitive damages. Roe filed an answer and counterclaims, alleging that Doe had falsely accused her of having genital herpes. She set forth counterclaims for libel, slander, false light invasion of privacy, intentional infliction of emotional distress, and malicious prosecution and abuse of process. She also sought attorney fees and punitive damages.

Doe moved for summary judgment on Roe's counterclaims, filing with his motion the affidavit of a doctor who stated that he had reviewed documents provided by Doe and determined from those documents that Roe could not deny that she has genital herpes

, although the affidavit did not identify the documents reviewed and none were attached to the affidavit. Roe filed a motion to exclude the doctor's affidavit and also filed an opposing motion for summary judgment as to Doe's claims and her counterclaims.

The trial court entered orders granting Roe's motion to exclude the doctor's affidavit for purposes of summary judgment, granting her motion for summary judgment as to Doe's claims, denying her motion for summary judgment on her counterclaims, granting Doe's motion for summary judgment as to Roe's malicious prosecution and abuse of process counterclaim, and denying his motion for summary judgment as to Roe's other counterclaims. Doe appeals, challenging the exclusion of the affidavit and the summary judgment rulings entered against him.

2. Exclusion of doctor's affidavit.

Doe contends that the trial court erred in excluding the doctor's affidavit for purposes of summary judgment. We disagree.

OCGA § 9-11-56 (e), which governs affidavits supporting or opposing motions for summary judgment, provides that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." This plain language of " OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit." Hailey v. Blalock , 209 Ga. App. 345, 347 (2), 433 S.E.2d 337 (1993) (citations and punctuation omitted). Indeed, "[i]t is well established that an affidavit purporting to rely on papers or other material not attached to the affidavit is insufficient [for purposes of] summary judgment." Padgett v. Baxley & Appling County Hosp. Auth. , 321 Ga. App. 66, 70 (1), 741 S.E.2d 193 (2013).

In this case, no sworn or certified copies of any documents allegedly provided by Doe to the doctor were attached to the doctor's affidavit. Moreover, as the trial court found and as Doe acknowledges in his brief, the affidavit did not even identify specific documents reviewed by the doctor. Doe nevertheless argues that the trial court's concerns with the affidavit were allayed by his filing of a brief in which he identified "categories of documents" purportedly reviewed by the doctor. But "assertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue." Bone v. Children's Place , 297 Ga. App. 367, 370 (3), 677 S.E.2d 404 (2009) (citation and punctuation omitted). See also Tselios v. Sarsour , 341 Ga. App. 471, 475, 800 S.E.2d 636 (2017) (a brief is not proper evidence for purposes of summary judgment).

Since the affidavit did not identify what documents the doctor had reviewed and no sworn or certified copies of such documents were attached, "we have little hesitancy in concluding that the affidavit ... was wholly deficient under the mandates of OCGA § 9-11-56 (e) [, and therefore] the trial court did not err in granting [the] motion to strike." Brown v. Apollo Indus. , 199 Ga. App. 260, 262 (1), 404 S.E.2d 447 (1991). See also McGuire Holdings v. TSQ Partners , 290 Ga. App. 595, 599 (1) (b), 660 S.E.2d 397 (2008) (failure to attach sworn or certified copies of documents to an affidavit as required by OCGA § 9-11-56 (e) "provides a separate basis for the trial court's exclusion of [the] affidavit").

3. Summary judgment.

Doe challenges the trial court's grant of summary judgment to Roe on his claims and the court's denial of summary judgment to him on Roe's counterclaims.

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.] A defendant may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart v. Widener , 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010) (citations and punctuation omitted). On appeal, "[w]e review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." 9766, LLC v. Dwarf House , 331 Ga. App. 287, 288, 771 S.E.2d 1 (2015) (citation and punctuation omitted).

So viewed, the evidence shows that from January 2017 until April 2019, Doe and Roe had a sporadic personal relationship during which they engaged in sexual intercourse on multiple occasions. They both also had other sexual partners, including partners who had cold sores associated with herpes virus HSV-1. In 2017, Doe obtained and took a prescription medication to treat herpes after having received oral sex from a woman who had a history of cold sores. In 2019, Roe told Doe that the father of her child had HSV-1 and that she was no longer having sex with him; but she later admitted that she was in fact still having sex with him and acknowledged that he had a history of cold sores. A few days after Doe and Roe last had sexual intercourse, Doe had an outbreak of sores on his penis and he later tested positive for HSV-1. He told Roe about the outbreak, and thereafter she also tested positive for HSV-1. Doe subsequently told other people that Roe has genital herpes

. In their respective affidavits and depositions, Doe and Roe each claimed to have never previously exhibited symptoms of or been diagnosed with genital herpes.

(a) Doe's negligence and gross negligence claims.

Georgia law recognizes that a person can "be held liable in tort for negligently or deliberately infecting [another] with herpes, a sexually transmitted disease

." Beller v. Tilbrook , 275 Ga. 762 (1), 571 S.E.2d 735 (2002). Accord Long v. Adams , 175 Ga. App. 538, 539-541 (2), 333 S.E.2d 852 (1985). "It is well established that to recover for injuries caused by another's negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation , and damages."

Collins v. Athens Orthopedic Clinic , 307 Ga. 555, 557 (2), 837 S.E.2d 310 (2019) (citation and punctuation omitted; emphasis supplied). "[E]xpert evidence typically is not required to prove causation in a simple negligence case." Cowart , supra at 622, 697 S.E.2d 779.

But even in simple negligence cases, plaintiffs must come forward with expert evidence in order to survive a defense motion for summary judgment when medical questions relating to causation are involved. Medical questions are presented when the existence of a causal link between the defendant's conduct and the plaintiff's injury cannot be determined from common knowledge and experience.

Nixon v. Pierce County School Dist. , 322 Ga. App. 745, 748 (1), 746 S.E.2d 225 (2013) (citations and punctuation omitted).

Under the facts of the instant case, Doe was required to come forward with expert evidence in order to survive Roe's motion for summary judgment on his negligence claims because medical questions related to causation...