California Supreme Court Modifies HIV Liability Rule

Yesterday, the day before the Independence Day holiday, in a contentious decision the California Supreme Court ruled 4-3 that a married individual who engages in risky sexual behavior may be forced to reveal details of his/her sexual history and be held liable for their spouses' HIV infection even if they were unaware of their HIV status at the time. Previously in March I had blogged about the "sad case" of John B. vs. Superior Court (pdf), which really involves a discovery dispute in an HIV liability lawsuit between two married individuals, named in the lawsuit as John B. and Bridget B. The court overuled the appellate court ruling by limiting the extent of the discovery questions about sexual history to a six-month window before John's August 2000 negative HIV antibody test, citing CDC data and current medical knowledge about the etiology of HIV infection that someone who is infected with HIV will develop detectable antibodies within six months.

The majority opinion, written by Justice Marvin Baxter (joined by Chief Justice Ronald George, Justice Ming Chin and 2005 Schwarzenegger appointee Justice Carol Corrigan) recognizes that this is a sensitive decision and attemps to limit the damage:

Accordingly, our conclusion that a claim of negligent transmission of HIV lies
against those who know or at least have reason to know of the disease must be
understood in the context of the allegations in this case, which involves a couple
who were engaged and subsequently married; a defendant who falsely represented
himself as monogamous and disease-free and insisted the couple stop using
condoms; and a plaintiff who agreed to stop using condoms in reliance on those
false representations. We need not consider the existence or scope of a duty for
persons whose relationship does not extend beyond the sexual encounter itself,
whose relationship does not contemplate sexual exclusivity, who have not
represented themselves as disease-free, or who have not insisted on having sex
without condoms.

In other words, "the facts of this case were very unusual, we aren't declaring a universal rule here." Compare this paragraph to the bland New York Times headline "People Who Pass On AIDS Virus May be Sued" (well, duh!) The Times does do a reasonable job of summarizing the details of the case:

Bridget B. and John B., as they are known in court papers, started dating in 1998 and married in July 2000. Bridget said that John told her he was healthy and monogamous and that he urged her to have unprotected sex with him. In October 2000, though, she tested positive for H.I.V., the virus that causes AIDS, as did he.

Bridget later learned, her lawsuit says, that John had had sex with men before and during their marriage. She seeks compensation for what she says was John's infliction of emotional distress and fraud.

There were three separate dissenting opinions, by Justices Katherine Werdegar, Justice Joyce Kennard and Schwarzenegger appointee Justice Carlos Moreno. Moreno's dissent was particularly informed, incisive and (somewhat) inflammatory:

As I shall explain, the distinction between HIV and other sexually
transmitted diseases is crucial when discussing the wisdom of creating a cause of
action for negligent transmission based on constructive knowledge. Contrary to
the majority’s analysis, creation of such a tort for HIV is not a simple extension of
existing California law, nor has any other state created such a cause of action.2
It must be clearly understood, therefore, that in creating this cause of action the
majority ventures into largely uncharted waters.

[...]

Accordingly, the question before this court is whether creation of a cause of
action for negligent transmission of HIV — and not some other sexually
transmitted disease — based on a constructive knowledge standard will serve the
relevant policy considerations associated with the fight against the AIDS
epidemic. I believe the answer is no.

To begin with, the majority fails even to recognize the relevant policy
considerations associated with the AIDS epidemic because the majority assumes
that AIDS is the same as other sexually transmitted diseases and the same analytic
framework can be applied to the negligent transmission of HIV as is applied to
other sexually transmitted diseases. This is inaccurate.

[...]

The convergence of these three factors: the potential deadliness of HIV
infection, the possibility that a person may be unknowingly infected with HIV for
years and the opprobrium to which those who are infected have been subjected,
distinguishes HIV/AIDS from all other sexually transmitted diseases. Thus the
battle to contain the transmission of HIV raises complex questions of public and
public health policy not present with respect to other sexually transmitted diseases.
[...]

The majority’s rejection of an actual knowledge standard as a predicate for
imposing liability for transmitting HIV also flies in the face of the Legislature’s
adoption of an actual knowledge standard in statutes that penalize the transmission
of the virus. Health and Safety Code section 120291 makes it a felony, punishable
by up to eight years in state prison, for a person to “expose[] another to . . . [HIV]
by engaging in unprotected sexual activity when the infected person knows at the
time of the unprotected sex that he or she is infected with HIV, has not disclosed
his or her HIV-positive status, and acts with the specific intent to infect another
person with HIV.” (Health & Saf. Code, § 120291, subd. (a), italics added.)

[...]

Finally, I am concerned that the creation of this new tort is also inconsistent
with the Legislature’s policy of guarding against the conflation of transmission of
HIV with sexual orientation in a way that stigmatizes one of the populations most
vulnerable to infection.

[...]

For these reasons, I dissent from the majority’s creation of a cause of action
for negligent transmission of HIV based on a constructive knowledge standard. I
would find that civil liability for transmission of the virus must be predicated upon
actual knowledge of infection. This result would be consistent with the
Legislature’s painstaking formulation of a comprehensive policy to combat the
AIDS epidemic.

By contrast, the majority’s result is inconsistent with legislative policy.
The majority allows a person who tests HIV positive to bring an action against all
former sexual partners and attempt to ascertain not only whether they had actual
knowledge they were HIV positive when they engaged in sexual relations but also
whether they had any “reason to know” they were HIV positive.(Footnote: The majority’s suggestion that its holding applies only to “a couple whowere engaged and subsequently married” (maj. opn., ante, at p. 18) is no reallimitation given that the duty analysis that precedes this statement makes nodistinction between married couples and everyone else.) 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. One can easily
foresee a spate of “shakedown” or vengeance lawsuits brought by plaintiffs whose
motivation is not so much to discover how they contracted HIV as to force
lucrative settlements or embarrass a former sexual partner by exposing that
person’s sexual history in the guise of obtaining relevant discovery. Even without
this potential for abuse, the threat to the confidentiality of HIV test results and to
sexual privacy, the apparent absence of any scientific grounding for a constructive
knowledge standard, and the potential for stigmatization of individuals based on
their sexual orientation are powerful arguments against this novel theory of
liability for the negligent transmission of HIV. I understand that the majority is
guided by the commendable goal of preventing transmission of HIV and AIDS,
but creating this new tort is not the way to go about it. Instead, with this decision
the majority has opened a Pandora’s box. For these reasons, I respectfully but
emphatically dissent.

Wow! All I can say, Justice Moreno, is that you had me at "I dissent."