In 2012, plaintiff Jane Doe began an exclusive dating relationship with the male defendant, a financial services professional. Before she agreed to have unprotected sex with him, the plaintiff asked the defendant about his sexual health history, including if he had ever had symptoms of any form of the Herpes Simplex Virus (HSV), such as cold sores, which she knew would signal the presence of Herpes Simplex Virus 1 (HSV-1). The defendant denied having any STDs, any strain of the herpes virus, and denied ever having cold sores. Taking him at his word, the plaintiff engaged in unprotected sexual activity with the defendant.
Within weeks of having sex, the plaintiff experienced her first outbreak of genital herpes. It was discovered that the defendant had been diagnosed with HSV-1 six years before, and had experienced and received treatment for cold sores since 2006.
The plaintiff claimed fraud and negligence in her lawsuit.
The defendant admitted he had been aware of his HSV-1 diagnosis but claimed he had informed the plaintiff of his history of cold sores before she agreed to have unprotected sex with him. The defendant argued that there was no precedent for the plaintiff to bring her lawsuit against him because established legal precedent regarding the negligent transmission of STDs, such as herpes, only applied to genital-to-genital contact, and that any transmission of the disease in this case was through oral-to-genital contact.
Plaintiff Jane Doe is infected with an incurable virus, which will require lifelong management to prevent outbreaks and to alleviate pain and suffering when outbreaks do occur.
Despite a lack of precedence, the plaintiff’s claim won over the jury, based on the strength of three undeniable facts: Jane Doe did not have herpes prior to her sexual relationship with the defendant; there was no other source of transmission; and the defendant had lied about his knowledge of his diagnosis. The jury awarded the plaintiff a significant, confidential monetary award.
The jury’s verdict paved the way for future cases where liability depends on whether a person engages in unprotected sex with a partner while failing to disclose their sexually transmittable disease history.