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MO Court of Appeals Rules Tortious Infection Suit Can Proceed

Posted on: Tuesday, 12 July 2005, 21:01 CDT

A woman who contracted genital herpes from her ex-husband can sue for tortious infection, the Missouri Court of Appeals, Eastern District, said last week.

The decision reverses a St. Charles County trial court's grant of the husband's motion for directed verdict. The lower court found specifically the husband did not have a duty to protect his wife from the infection because the evidence did not prove he knew he had the sexually transmitted disease.

In this case, there were questions regarding witness credibility and the weight of the evidence, Judge Nannette Baker wrote for the court. These questions should have been left to the jury.

After five years of marriage, the woman filed a two-count petition for divorce and tortious infection in March 2003. According to the opinion, a treating physician diagnosed the woman with genital herpes in August 2002. She testified she had sexual relations only with her husband and first experienced symptoms while still living with him.

The husband admitted in testimony he had extramarital sexual relations with a co-worker at the U.S. Postal Service but claimed he did not know the other woman had an STD nor did he know he had the disease until his wife told him she had the disease. He also testified that when any symptoms arose, he attributed them to his diabetes brought on by exposure to Agent Orange.

The wife's doctor testified that the incubation time for the disease could be from one to 26 days; that someone who had not shown symptoms could still infect someone, although it is unlikely; and that it was unlikely the wife contracted the disease before her marriage.

Thereafter, the husband moved for a directed verdict, which the trial court granted.

The wife appealed, contending enough evidence existed to go to trial and that the lower court erred in granting the directed verdict and not granting her motion for a new trial.

The husband argued the appellate court should dismiss his wife's claims because the trial court's judgment was not final when the wife filed for appeal.

The appellate court disagreed, explaining that a partial judgment can be considered a final judgment if a trial court says there is no just reason for delay in its findings, conclusions and judgment, and the claim is completely adjudicated.

In reversing the directed judgment, the appellate court looked at the testimonies of the wife, husband and doctor.

Deuschle vs. Jobe held a person liable for negligent transmission of an STD if the person knew or should have known he or she was infected and failed to tell his or her partner. The decision also created a duty to abstain or warn others of the disease before having sexual contact with other people.

Here, the Eastern District found that a jury should have been given the opportunity to consider the conflicting testimony and determine if Husband should have known he had the disease.

The jury could infer from the fact that Husband had an extramarital affair, from Dr. Soudah's testimony that most people have symptoms and seek treatment, and from Husband's testimony that he may have had symptoms and attributed them to something else, that Husband should have known he had the disease, Baker wrote.

Alternatively, the jury may have believed Husband should not have known he had the disease, because he claimed he never had lesions and he attributed any symptoms he was having to his other diseases, she concluded.

Chief Judge Glenn Norton and Judge Clifford Ahrens concurred.

Ray, appellant, vs. Wisdom, respondent; No. ED85102; filed July 5.

Source: St. Charles County Business Record

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