For the Press

FROM THE JULY 14, 2006 ABA JOURNAL eReport

IGNORANCE IS NO EXCUSE IN HIV INFECTION
Man May Be Liable If He Had Reason to Know He Could Infect Others, California Court Rules

BY STEPHANIE FRANCIS WARD

A person can be liable for infecting someone with HIV even if he doesn't have actual knowledge that he himself is HIV-positive, the California Supreme Court has ruled.

The 4-3 decision stems from a discovery request filed by a woman suing her ex-husband for allegedly infecting her with HIV. Identified as Bridget B. in the opinion, she claims her former spouse, John B., had unprotected sex with men before and during their marriage, and she wants the names, addresses and phone numbers of his sexual partners for the past 10 years.

According to Bridget's action, John told her he was monogamous and disease-free and that they should eschew condoms. John, who now has AIDS, claimed in his answer that Bridget infected him, and provided as proof a negative HIV test he took six weeks before Bridget was diagnosed. A Los Angeles Superior Court judge overruled John's motions to quash the discovery requests, and he appealed, claiming the requests invaded his privacy.

John also argued that he could only be liable if he had actual knowledge of his HIV status during the time he had a sexual relationship with Bridget, and therefore discovery should be limited to requests regarding his actual knowledge. John B. v. The Superior Court of Los Angeles County, No. S128248 (July 3).

In what it described as "a sad case," the California Supreme Court found that other states impose liability when someone has constructive knowledge of a sexually transmitted disease, and California should be no different.

"John fails to consider whether the requested information, even if insufficient to establish the requisite knowledge by itself, may be relevant to the existence of such knowledge or reasonably calculated to lead to evidence on that point," the majority wrote. "After careful analysis of John's argument, we cannot agree that persons who have reason to know they are infected with HIV, a gravely serious disease with no known cure, should be subject to a lesser duty of care than persons who have reason to know they are infected with other sexually transmitted diseases."

In John's case, the majority found that discovery should not extend to a period more than six months before his negative HIV test in August 2000, since an infection contracted before that would have been detected in the test. However, the opinion says Bridget could "overcome this temporal limitation" and extend the discovery request "by offering some basis to question the accuracy or reliability of John's negative HIV test."

Two dissenting justices said the standard for liability in such cases should be actual knowledge, and a third justice said the court did not need to reach the question at this stage of the case.

Justice Carlos Moreno wrote one of the dissents. There's a distinction between HIV and other sexually transmitted diseases, he wrote, noting someone can be HIV-positive for many years and have no symptoms and that having the disease carries a heavier stigma than having other STDs.

"This cause of action potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process," Moreno wrote.

The majority finding is broad, particularly in how one defines "has reason to know," says Lawrence C. Levine, a professor at the University of the Pacific McGeorge School of Law. Besides torts, he teaches a class in sexual orientation and the law at the Sacramento, Calif., school.

"They're using those words quite carefully, because Œhave reason to know' is different than Œshould have known,' " he says. "Future courts are now left to struggle with how to apply this."

"Let's face it, sex is risky," says Peter M. Walzer, a Beverly Hills lawyer who chairs the State Bar of California's family law executive committee.

The court's finding on constructive knowledge, Walzer says, should cause family law attorneys to reconsider how they advise clients, particularly in prenuptial agreements.

"This opinion is just a warning shot that we may be subject to malpractice if we don't warn clients to get tested," he says. "You may want to require that there be a release of any liability [or suggest] they get tested, and go into details about STDs."

Roland Wrinkle, a Woodland Hills lawyer who represents Bridget, describes the case as "shocking."

According to court records, Bridget and John met in 1998 and married two years later. In 2000, shortly before the couple took a honeymoon, someone called their home and asked Bridget to tell John his HIV test was negative. A few months later, according to court records, Bridget began to feel ill, and she tested positive for HIV.

In 2001, according to court records, John started to develop sores on his face and scalp. Bridget later learned the probability she infected John with HIV was .03 percent, according to court records, and John allegedly admitted to her that he had sex with men before he and Bridget married.

"Once it became known to Bridget that her husband had been engaged in this lifestyle, she came to see us," Wrinkle says. "When we took his deposition, he refused to answer most of the questions."

Wrinkle says his client will continue to seek the information about her husband's previous sex partners now that the case is returning to superior court.

Eric S. Multhaup, a Mill Valley lawyer who represents John B., says the opinion does a good job of respecting his client's privacy on the discovery issue. What remains to be seen, he adds, is how the knowledge issue will pan out in future cases.

"What is the obligation of a person in California as far as disclosing sexual history," Multhaup asks. "Many jurisdictions require that a person disclose knowledge of an existing STD, but not information about their particular history which might be considered risky behavior."

©2006 ABA Journal