Confidential

Facts

The plaintiff filed this lawsuit against her ex-boyfriend, the defendant, alleging that she contracted genital herpes after having unprotected sex during the course of their 10-year relationship between the spring of 1996 and March 2007. The plaintiff's complaint alleged causes of action for negligence, negligence per se, intentional and negligent misrepresentation, concealment, constructive fraud, battery, negligent infliction of emotional distress and intentional infliction of emotional distress.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendant knew he was infected with genital herpes and concealed this information to induce her to engage in unprotected sex. Plaintiff further contended that defendant relied on four blood tests he claimed he had taken that allegedly showed he did not have genital herpes. Defendant first disclosed these blood tests in the motion for summary judgment. Moreover, defendant never offered plaintiff an opportunity to "cross-examine" the blood by her own testing. Plaintiff moved for production of the blood samples and defendant objected on privacy and relevancy grounds without disclosing that he had already allowed the blood samples to be destroyed.

Plaintiff objected to the blood testimony as hearsay, no opportunity to test, and that defendant was using the same evidence as a sword while shielding the evidence by objection and refusal to produce, and spoliation for allowing the blood to be destroyed. Plaintiff also objected that there was a gap in the chain of evidence, no ID of who drew blood or what was done with it thereafter, only a finished report. The court overruled all the objections. Plaintiff also noted that defendant's own doctor included herpes in his differential diagnosis. The court ruled that because it was in the differential, it wasn't a fact. Plaintiff argued it did raise an issue of fact. Plaintiff also argued the fact that herpes was number two in the differential diagnosis went to the weight of the evidence; it did not preclude it from being an issue of fact.

DEFENDANT'S CONTENTIONS:
The defendant contended that plaintiff is infected with genital herpes; and he is not. The defendant supported this contention with four separate negative blood tests conducted at licensed and accredited laboratories and expert testimony that establish he is not infected with genital herpes and could not be the source of plaintiff's genital herpes infection. Every cause of action in plaintiff's complaint is premised on plaintiff contracting genital herpes from defendant. Therefore, plaintiff's entire action is without merit. Plaintiff rejected a proposal by defendant that both parties undergo a blood test at an agreed lab prior to the hearing on the motion for summary judgment.

Damages

The plaintiff sought damages for $9,081,000 ($4 million in general damages; $5 million in punitive damages and $81,000 in special damages). The plaintiff also claimed loss of earnings but did not specify the amount.

Result

Summary judgment granted in favor of the defendant.

Other Information

The defendant filed a motion for summary judgment supported by evidence establishing he is not infected with genital herpes and is not the source of plaintiff's genital herpes infection. The motion for summary judgment was granted on April 21, 2009. Plaintiff's counsel of record was retained 45 days prior to the motion for summary judgment. According to plaintiff's counsel, plaintiff will be filing a motion for new trial. FILING DATE: June 20, 2008.