San Francisco Chronicle - July 3, 2006
Bob Egelko, begelko@sfchronicle.com.

Emphasizing that the ruling applied to married or monogamous couples and not necessarily to those in casual relationships, the justices voted 4-2 to allow damages against someone who knew, or had reason to know, that he or she was infected with the human immunodeficiency virus before spreading it to a partner.

Among the information that may have to be revealed, under the ruling, are the dates and frequency of a man's unprotected sexual contact with other men and with intravenous drug users, other high-risk behavior, and any medical tests or symptoms that might have indicated the defendant or a partner was infected.

Names of past sexual partners would not have to be disclosed -- although dissenting justices said the ruling would encourage plaintiffs to seek those partners' identities.

The chief issue before the court was whether an HIV-positive person who hadn't yet been tested for the virus could be held responsible, in a civil suit, for infecting a partner. The majority said yes, at least in some circumstances.

"Limiting liability only to those who have actual knowledge they are infected would discourage those who fear they may be infected from getting tested,'' said Justice Marvin Baxter. He was joined in the majority by Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan.

Baxter cautioned that the case involved a couple who had been engaged and later married, and who therefore assumed a legal responsibility to look out for one another's interests. "We need not consider the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself,'' he said.

Dissenters said legal responsibility should be limited to those who knew, at the time they transmitted the disease, that they were HIV-positive.

Justice Carlos Moreno said the majority relied on rulings involving other sexually transmitted diseases that do not have the same life-threatening nature, or social stigma, as AIDS. Noting the frequent absence of distinctive symptoms before a positive HIV test, Moreno said the ruling would allow courts and litigants to delve needlessly into matters of sexual privacy and could discourage voluntary disclosure of infection.

Another dissenting justice, Kathryn Mickle Werdegar, said the ruling creates the prospect that anyone could be "drawn into intrusive litigation ... whenever a former partner, or that partner's subsequent partner, contracts a sexually transmitted disease.''

The seventh justice, Joyce Kennard, said the court did not need to decide whether actual knowledge of infection was required for a defendant to be found liable, because both parties in the lawsuit that came before the court voluntary disclosed their HIV-positive status during the litigation.

The plaintiff, identified as Bridget B., sued her ex-husband, John B., in Los Angeles County for allegedly infecting her before or during their marriage. John B. denied it and asserted that she had infected him, although he is not seeking damages.

According to her lawsuit, between the time of their engagement in late 1999 and their marriage in July 2000, John assured her he was healthy and monogamous and insisted they stop using condoms during intercourse. Bridget said she started suffering exhaustion and fevers in September 2000 and tested positive for HIV a month later.

John tested HIV-positive later that month and was diagnosed with AIDS in 2001. Bridget said he told her for the first time in November 2001 that he had had sex with men before their marriage. He also said he had tested negative for HIV in August 2000.

In today's ruling, the court said John, in pretrial questioning, must disclose when and how often he had sex with men, because it might show whether he should have known he was infected.

However, the disclosure is limited to the six months before his negative test in August 2000, the court said, because the Centers for Disease Control and Prevention has found that an HIV-infected person will test positive within six months. An appellate court had allowed questioning about his sexual conduct in previous years.

John B.'s lawyer, Eric Multhaup, said the court's standard for holding defendants responsible if they should have known they were infected was "so fuzzy and non-specific as to give very, very little guidance to people about what they are obligated to do when they're out leading their social lives.''

But Multhaup said the justices "did their best to balance the rights of an injured party against the privacy rights of the defendant'' and provided each side in the case with "the protections that they most needed'' -- for John, a six-month limit on the inquiries about his sexual history.

The case is John B. vs. Superior Court, S12824.

060703
SC060701

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