Lopez v. Clarke
| Decision Date | 01 April 2015 |
| Docket Number | No. 4D12–3859.,4D12–3859. |
| Citation | 189 So.3d 805 |
| Parties | Monica LOPEZ, Appellant, v. John B. CLARKE, Appellee. |
| Court | Florida District Court of Appeals |
Roy Wasson and Erin Pogue Newell of Wasson & Associates, Chartered, Miami, Law Office of David A. Hagen, P.A., Miami, and Thomas J. Gruseck, Palm Beach Gardens, for appellant.
Benjamin L. Bedard and Laura E. Bedard of Roberts, Reynolds, Bedard & Tuzzio, PLLC, West Palm Beach, for appellee.
The trial below was a tale of two former lovers—Monica Lopez and John Clarke—regarding who infected the other with the genital herpes virus. Both denied having the virus prior to their relationship. Both said they were faithful to each other. Both suffered genital herpes outbreaks—Lopez in February, 2005 and Clarke a few months later. Lopez sued Clarke and the case went to trial on claims of battery, negligence, and fraudulent concealment. The jury resolved the case in favor of Lopez, but only on the fraudulent concealment claim and for just $12,500.1
We reverse the judgment based on fraudulent concealment. Such fraud must be based on the tortfeasor's actual knowledge that he harbors a disease. Here, there could be no actual knowledge because Clarke secured a clean blood test from a physician a week prior to starting his relationship with Lopez. We also affirm the judgment on the defense verdicts for battery and negligence.
The trial was an ordeal. Both parties were forced to divulge intimate details about their sex lives, medical visits, and genital ailments. At its core, the jury was tasked with resolving three disputes. First, whether Clarke was, in fact, infected with the herpes virus prior to engaging in sexual intercourse with Lopez. Second, whether Clarke knew of his infection when he had intercourse with Lopez, yet failed to issue a warning. And, finally, whether Clarke's failure to disclose resulted in Lopez contracting the herpes virus. The case was close on each of these issues.
The trial was a battle of the experts, making a basic understanding of the herpes virus crucial to evaluating the facts. As one expert explained, herpes is an “ancient virus[ ] that ha[s] evolved with” humans over time, “so much so that [one] can consider [it] part of the normal immune system.”2 The virus attacks humans in two forms—“herpes simplex virus type 1, which is the causative agent of oral infections, or conditions ‘above the waist’; and herpes simplex virus type 2, which is the causative agent of genital infections, or symptoms ‘below the waist.’ ”3 Mussivand v. David,
45 Ohio St.3d 314, 544 N.E.2d 265, 268 (1989). “Both forms of the virus are life-long infections, and those infected often experience a primary episode and subsequent recurrences.” Michele L. Mekel, Kiss and Tell:
Making the Case for the Tortious Transmission of Herpes and Human Papillomavirus Deuschle v. Jobe, 66 Mo. L. Rev. 929, 932 (2001). Significant for a court's decision on whether or not to impose liability, “[m]ost individuals have no or only minimal signs or symptoms from infection,” yet remain carriers. Matthew Seth Sarelson, Toward A More Balanced Treatment of the Negligent Transmission of Sexually Transmitted Diseases and AIDS, 12 Geo. Mason L. Rev. 481, 515 n. 11 (2003).
Transmission of herpes occurs “through contact with lesions, mucosal surfaces, genital secretions, or oral secretions” during periods when the carrier is “shedding” the virus. Ctrs. For Disease Control & Prevention, GenitalHerpes–CDCFactSheet, http://www.cdc.gov/std/herpes/STDFact-Herpes-detailed.htm (last visited February 18, 2015). The virus's type 2 variant—popularly known as genital herpes—is commonly “spread through sexual intercourse.” Mussivand, 544 N.E.2d at 268. Once contracted, the virus takes several days to weeks to manifest—if it does at all—as a primary herpetic outbreak, which is typically accompanied by “one or more vesicles on or around the genitals, rectum or mouth,” along with symptoms of “fever, body aches, swollen lymph nodes, and headache.” Ctrs. For Disease Control & Prevention, supra. Thereafter, infected persons may experience subsequent recurrent outbreaks, which “tend to be milder than the initial occurrence,” although the “frequency and severity of the recurrent episodes vary greatly.” Mekel, at 933.
Pertinent to this case, two methods for detecting the herpes virus include viral cultures and blood testing. The culture method involves taking samples from suspected herpes outbreak locations, such as lesions, to evaluate the virus's presence. While a positive reading is definitive, a negative reading does not necessarily negate the possibility of infection. This is due to the virus's nature—it travels through the infected person's nervous system, occasionally revealing itself through outbreaks. Although specific outbreak locations are treatable, the overall virus is not. Thus, culture samples recovered days after the outbreak may test negative, despite a continued herpes infection, because the virus is no longer active in the previously infected region.
Blood testing, on the other hand, concerns the antibodies produced by the body to combat the virus. During a primary outbreak, the body creates IgM antibodies to function like first responders addressing an emergency. Thereafter, the body adjusts by producing IgG antibodies to suppress the virus, which remain elevated through the remainder of the infected person's life. If blood is drawn during a primary outbreak, it can result positive for IgM antibodies but not necessarily for IgG. Likewise, blood drawn during a recurrent outbreak—or during no outbreak at all—may be positive for IgG but not IgM. The choice of test, therefore, is crucial.
Before 2000, Lopez came to the United States on a student visa, where she eventually fell in love with a fellow non-U.S. citizen. Over the years, the two resided together, engaged in unprotected sex, and intended to marry. However, they parted ways in late 2004. At trial, Lopez's partner confirmed that he did not have herpes.
Following the breakup, Lopez attended a singles party at a local doctor's home, where she met Clarke. They immediately hit it off and began seeing each other nearly every day. In February 2005, Lopez moved into Clarke's home. Concerned about some pills she observed during the moving process and some wire transfer receipts, Lopez asked Clarke whether he was engaged in other relationships or had sexually transmissible diseases (STDs). Clarke assured her that his prior partners were “clean” and that he regularly got tested for STDs, which had returned negative. This latter representation was consistent with test results Lopez found in Clarke's car, confirming that he had recently tested negative for numerous STDs, including genital herpes.
With concerns alleviated, the couple began to engage in sexual relations.
On February 17, 2005, Lopez sustained injuries after being involved in a serious car accident. Four to five days later, she went to the emergency room complaining of difficulty urinating and vaginal swelling. As confirmed by a culture test, Lopez's gynecologist believed her symptoms to be consistent with a primary genital herpes outbreak. The doctor instructed Lopez to temporarily stop having sex and prescribed Zovirax ointment and Valtrex pills to alleviate her symptoms.
Lopez confronted Clarke about her predicament. He told her to go home and take medication. The couple continued having sexual relations. The following month, Lopez developed herpes outbreaks in other locations on her body. It took three months for her various outbreaks to subside. Since contracting herpes, she has suffered approximately six recurrent genital herpes outbreaks each year, with each outbreak lasting about five to six days.
Clarke's former wife contracted genital herpes in the early 1990's. The couple continued having unprotected sex on the belief he would not contract the virus while she was not having outbreaks.
A year after divorcing, on November 8, 1999, Clarke met with his urologist who took smears from a lesion to perform a culture, which tested negative for the herpes virus. The doctor further ordered an IgG test on the belief Clarke may have been previously exposed to the virus given his relationship with the former wife; that test came up positive for herpes type 1, but negative for herpes type 2.
Over the ensuing years, Clarke visited his dermatologist for genital ailments. The dermatologist testified at trial he never observed signs of genital herpes.
On February 3, 2005, before commencing sexual relations with Lopez, Clarke returned to the urologist on account of his recurring prostatitis. While there, he decided to get tested for STDs, including the herpes virus. In so doing, the doctor administered an IgM test, which resulted negative for herpes type 2. Given the test results and lack of symptoms, the urologist determined—and continued to believe at trial—that Clarke did not have herpes type 2 at the time of the visit.
It was not until July 2005 that Clarke reported his first herpetic outbreak, a different reaction from his prior ailments. Knowing how the virus worked, Clarke used some of Lopez's Famvir to alleviate the attack before scheduling appointments with his urologist and dermatologist. When Clarke met with his urologist in August, his genital lesions had subsided. As a result of the meeting, the urologist performed blood testing, which returned positive for herpes type 2.
The expert testimony centered upon whether Clarke contracted...
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