Syring v. Tucker
| Decision Date | 23 April 1993 |
| Docket Number | No. 91-0699,91-0699 |
| Citation | 498 N.W.2d 370,174 Wis.2d 787 |
| Parties | , 61 USLW 2667 Robert A. SYRING, Plaintiff-Appellant-Petitioner, v. Carol E. TUCKER, Defendant-Respondent. d |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner there were briefs by Bruce F. Ehlke and Lawton & Cates, Madison.
Amicus Curiae briefs were filed by Marc E. Elovitz, Jennifer L. Pariser and Debevoise & Plimpton and Ruth E. Harlow and William B. Rubenstein, all of New York, New York, and Stephen M. Byers and Gretchen E. Miller, all of Milwaukee, for American Civil Liberties Union Foundation, American Civil Liberties Union of Wisconsin Foundation and The AIDS Resource Center of Wisconsin, Inc.
This case comes before the court on Robert A. Syring's (Syring) petition for review of a court of appeals order which summarily affirmed the judgment entered by the circuit court for Dane County, Susan Steingass, Circuit Judge. Syring asked the circuit court for an order compelling Carol E. Tucker (Tucker) to submit to a physical examination, including a blood test, in order to determine whether Tucker transmitted any communicable diseases to Syring when she bit him. The circuit court concluded that although it could order Tucker to submit to such a physical examination, if Tucker refused to comply, it could not under sec. 804.12, Stats., treat the refusal as a contempt of court. The circuit court concluded that it thus lacked the statutory power to compel Tucker to submit to the requested physical examination. We conclude that the circuit court correctly determined it did not have the power under sec. 804.12, Stats., to force Tucker to undergo a physical exam. However, we hold that the circuit court did have the equitable authority to do so. We also hold that, under the circumstances this case presents, compelling Tucker to undergo a physical exam is appropriate and that such an examination is constitutional. Accordingly, we reverse and remand.
The facts are undisputed. Syring, a social worker, works for the Dane County Department of Social Services (the department). On April 21, 1987, Tucker, a client of the department, came to the department's offices for a hearing. She became disruptive and was asked to leave. When a security guard attempted to escort her from the building, she became violent.
From his office, Syring heard a "ruckus." He stepped into the hallway to investigate and saw Tucker hitting the security guard with a long stick "the size of a shovel handle." Syring said that he "walked up to Ms. Tucker ... and indicated to her that I was a bit concerned with her flailing that stick around." That stopped Tucker for a moment, but she soon resumed hitting the security guard.
Syring then attempted to restrain Tucker. He approached Tucker from behind and grabbed her around the arms. While Syring had his arms around Tucker, she lowered her head and bit Syring on the left forearm. The bite broke Syring's skin and he bled. According to the circuit court, "Tucker apparently yelled at him, after the bite, that she had AIDS."
Syring sued Tucker, alleging assault and battery. Syring claimed Tucker might have transmitted an "infectious disease or diseases" to him. The relief Syring sought included damages for pain and suffering and punitive damages.
Tucker did not file an answer and has refused to participate throughout this action, although she did authorize an attorney to represent her before the circuit court solely for the purpose of fighting any motions to compel her to submit to a blood test.
Syring filed a motion for physical examination which requested an order directing Tucker to submit to a physical exam which would include appropriate blood tests. Syring claimed he was "concerned" that Tucker "may have transmitted a communicable disease" to him when she bit him and that obtaining blood test results would allow him to determine what type of medical care he should pursue.
The circuit court granted Syring's motion for partial summary judgment on the issue of liability, and, in a written decision, discussed whether it had the power to force Tucker to undergo a blood test in the event she refused to voluntarily comply with an order directing her to submit to one. The court first concluded that sec. 146.025, Stats., which deals with restrictions on the use of tests for HIV in certain circumstances, did not apply to this case. It then concluded that sec. 804.12, Stats., precluded it from compelling Tucker to submit to a physical exam if she refused to comply with an order directing her to submit to an exam because sec. 804.12 does not allow a court to issue a contempt order as a sanction for refusing to submit to an ordered physical exam. The court then stated:
I conclude that the discovery rules under which testing is sought permit me to order the test but specifically prohibit me, in this or any other case, from enforcing by contempt any such order. Mr. Syring's remedies are otherwise. He is entitled to an order compelling Ms. Tucker to undergo the test. But if she continues to decline to do so, she may forgoe [sic] her defenses and a money judgment may be entered, but she may not be compelled to submit. No one is to force her, and if she does not consent, a motion for sanctions can be brought.
I realize that the crisis in this country occasioned by the AIDS epidemic places courts and citizens in situations for which our legal structure seems ill-suited. Perhaps this is one such situation. But, be that as it may, our legislature has spoken in reasonably unequivocal terms about its cherishment of the right of individuals vis-a-vis AIDS testing and release of results. But even if it had not, and deciding this matter as I do based upon Ch. 804 of the statutes and not sec. 146.025, Stats., I conclude that the rules of law must be followed.
(Emphasis in original The court entered an order directing Tucker to "submit to a physical examination, which examination shall include appropriate blood tests and such other examination as may be medically necessary to determine the possible presence of communicable disease, including, but not limited to, the disease known as AIDS...."
Tucker refused to comply with the court's order, and Syring brought a motion to compel Tucker to submit to a physical exam. The motion was denied.
When Tucker (who was in Taycheedah Correctional Institution for an unrelated incident) did not appear at a hearing on damages, the court adjourned the hearing and sent a note to Tucker, informing her she could ask to have a writ issued for her appearance.
Some time before the newly scheduled damages hearing, the court attempted to make a conference call among the parties, but Tucker refused to come out of her cell to participate in the conference.
At the damages hearing, Syring testified that he was concerned that Tucker might carry a communicable disease like HIV because "[s]he also indicated subsequent to this incident ... she in fact was an AIDS carrier." Syring said that he was 37 and his wife was 34 and that their uncertainty over whether Tucker had transmitted HIV to him had played a role in their decision to put off having children.
Tucker did not appear at the hearing; however, an attorney represented her for the sole purpose of defending any motion to compel Tucker to submit to a blood test. According to this attorney, Tucker had informed him that she had received notice of the hearing, but she did not wish to appear and had "said all she was going to say on the matter...."
The court awarded Syring $20,000 for past and future mental distress, making it clear that it made its award under the presumption that Tucker had not infected Syring with HIV. The court remarked that this award only went toward Syring's uncertainty and that "in equity or justice," if "any court were to be shown that in fact that virus had been communicated to Mr. Syring, ... [a] different set of damages ... should be assessed."
The court awarded Syring $10,000 in punitive damages, noting that it was "satisfied on this uncontroverted record Ms. Tucker's actions were wanton, reckless and in total disregard of Mr. Syring's rights...." The court made this award also under the assumption that Tucker had not transmitted HIV to Syring, saying if Tucker were HIV positive, "in equity and justice that [would be] a piece of newly discovered evidence that would require a new trial...." The circuit court entered judgment, and the court of appeals summarily affirmed.
This court granted Syring's petition for review. Amici curiae American Civil Liberties Union Foundation, American Civil Liberties Union of Wisconsin Foundation, and the AIDS Resource Center of Wisconsin, Inc. (ACLU) have filed briefs on Tucker's behalf.
Syring sought an order under sec. 804.10, Stats., for a physical exam: "When the mental or physical condition (including the blood group) of a party is in issue, the court ... may order the party to submit to a physical or mental examination." The ACLU argues that Tucker's HIV status is not relevant and therefore not "in issue." Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence. Section 904.01, Stats.
Tucker bit Syring. Her teeth broke his skin, and her saliva came into contact with his blood. The ACLU contends that Tucker's HIV status is not relevant because HIV cannot be transmitted via saliva: "[T]here has not been a single documented case of HIV transmission through saliva, and scientists agree that such a transmission is virtually impossible." The ACLU cites numerous medical journals and studies. Syring counters with citations to other medical journals and studies, arguing the evidence is not uncontroverted that HIV cannot be transmitted through saliva.
Scientists have found HIV in tears, blood, semen, urine, breast milk, and saliva....
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