The 49-year-old Beaverton divorcee was impressed when she met a 69-year-old Southeast Portland man on the Internet dating website eHarmony.
He seemed well-educated, charming and kind. They had a lot in common, including that she was a dental hygienist and he was a retired dentist. On the fourth date -- an evening that included hors d'oeuvres, wine and a few puffs of pot -- the two had sex.
The woman was looking for a husband. Instead, she ended up with genital herpes.
After enduring repeated painful outbreaks of the disease and spiraling into clinical depression, she filed a lawsuit. Last week after a four-day trial, a Multnomah County jury awarded her nearly every dollar she was asking for: $900,000 for her pain and suffering.
It was the first time a case of one person suing another for intentionally transmitting herpes went to trial in Oregon, said the attorneys who tried and researched the case.
Jurors were asked to ponder fundamental questions about dating and sex in today's times: Was the man obligated to tell his date that he had genital herpes before they had unprotected sex? Did he truly not know that he was contagious even when he wasn't experiencing lesions? And how much should a person be compensated for a disease, albeit incurable, that affects roughly 1 in 6 adults?
The jury deliberated for two hours before reaching a verdict: The man was 75 percent negligent, while the woman carried 25 percent of the blame. Two jurors, however, dissented, believing the man was entirely at fault.
Jurors also found that the retired dentist committed battery by intentionally engaging in an activity that harmed the woman.
Several jurors said they found the man's behavior reprehensible and that the dental hygienist's suffering was real.
"We all felt he should have told her -- he had the responsibility to tell her," said juror Noah Brimhall.
Difficult to prove
Lawsuits like this are rare because it's difficult to prove a "preponderance of the evidence" -- in other words, that someone "more likely than not" intentionally infected another. In 1996, however, a 32-year-old woman filed suit against her 38-year-old former Portland boyfriend, claiming he infected her with genital herpes after making a conscious decision not to tell her of his health status. He settled the case for $550,000.
Criminal charges also are rare. Some states specifically outlaw the intentional spread of any sexually transmitted diseases. Others criminalize only the intentional spreading of HIV because of its serious, life-threatening nature. Oregon does neither, but prosecutors can charge defendants under existing statutes, such as the state's assault law.
In the case of the retired dentist, the Washington County district attorney's office declined to prosecute, figuring it would not be able to prove the case "beyond a reasonable doubt" -- a higher standard than in a civil suit.
During last week's trial, the woman's attorney, Randall Vogt, said his client had received a clean bill of health in January 2010 and then had sex with the retired dentist for one time on May 25, 2010. Within 11 days, she had a herpes outbreak -- documented by her complaints to a doctor, he said.
The woman, who filed the case under a pseudonym, testified that she asked her date to wear a condom and he said OK, but the next thing she knew he wasn't wearing a condom and it was too late. Afterward, as they were lying in bed and talking about the chemistry between them, she said he broke the news to her: He had herpes. She kicked him out of her house.
Her outbreaks, she said, have been repeated and painful. She took anti-viral medication, but it caused large amounts of her hair to fall out. She suffered from anxiety and depression, and the drugs she took for that caused her weight to balloon by 30 pounds.
Vogt praised his client as a "heroine" for standing up to hold a "dangerous" man responsible.
"Ninety-nine percent of the people who find themselves in (her) situation simply wring their hands and do nothing," Vogt said. "They know if they file a lawsuit, it's going to be hotly contested. It's going to be embarrassing. It's going to be massively unpleasant."
Vogt asked jurors to establish a standard by sending a message that in a "civilized society" sex partners must tell one another if they have an STD, and that relationships must not "be governed by the law of the jungle."
Defense attorney Shawn Lillegren tried to chip away at the woman's credibility by arguing that she was lying about her sexual history and may have had sex with other men who gave her the disease.
Dentist's defense
The retired dentist took the stand to say that despite the woman's contention that he should have known he could be contagious at all times, especially given his background as a dentist, he truly didn't know. He testified that he told her that he had herpes not out of guilt, as she contended, but because he liked her and wanted her to know there might be times when he had an outbreak and he would have to refrain from sex.
His attorney argued that the woman was careless -- that she should have demanded he wear a condom because without one "everyone knows you're at risk for an STD."
"Grow up. Come on. You're an adult. He's an adult. They had sex," Lillegren said. "The point is she is not some little innocent victim."
Lillegren also painted the woman as a money-hungry. "Go for a million -- that's plaintiff's message," Lillegren said. "God bless America. Go for it. Got some coffee to spill on me?"
After Judge David Rees read the jury's verdict, the woman stood up and looked as if she were straining to hold back tears. As jurors filed out of the courtroom, she held their gaze and mouthed words of gratitude as they passed. Portland herpes lawsuit $1.1 million, Herpes lawsuit $900,000,
Source:http://www.oregonlive.com/portland/index.ssf/2012/06/herpes_verdict_in_portland_wom.html
