BEHR v. REDMOND











Filed 3/2/11; pub. order 3/14/11 (see end of opn.)








IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

PATRICIA BEHR, Plaintiff and Respondent, v. THOMAS REDMOND, Defendant and Appellant.

E048333 (Super.Ct.No. INC052881) O P I N I O N

APPEAL from the Superior Court of Riverside County. William E. Burby, Jr., Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
Law Office of Robert C. Frisbee, Robert C. Frisbee; Frisbee & Bostock, Robert M. Frisbee; Greines, Martin, Stein & Richland, Kent L. Richland, Robin Meadow, and Michael Anthony Brown for Defendant and Appellant.
Slovak Baron & Empey, David Baron; Payne & Fears and Paul D. Herbert for Plaintiff and Respondent.
I. INTRODUCTION
Plaintiff and respondent Patricia Behr sued defendant and appellant Thomas Redmond for damages arising from the alleged tortious transmission of genital herpes. By special verdict, the jury made findings favorable to Behr and found that she had suffered compensatory damages of $4,003,600, including $2.5 million for future medical expenses. In a separate trial, the jury found that Behr was entitled to punitive damages in the amount of $2.75 million.
On appeal, Redmond contends: (1) the evidence is insufficient to support a finding that Behr contracted the herpes virus from sexual contact with him prior to his disclosure of the disease, and that he cannot be liable for transmitting the disease after his disclosure; (2) the special verdict is fatally defective for failing to include findings as to the timing of Behr's infection, the existence of a special relationship between the parties for purposes of establishing negligent infliction of emotional distress, and any misrepresentation by Redmond; (3) the compensatory and punitive damages awards are excessive; and (4) the court erred in denying his motion to strike Behr's postjudgment request for expert witness fees.
We reject Redmond's argument concerning the sufficiency of the evidence as to his liability for transmission of herpes. We conclude he has waived his argument concerning the failure of the special verdict to include a finding regarding the timing of Behr's infection, and that his argument concerning the absence of a finding regarding a special relationship is without merit. However, we agree that the special verdict cannot support the judgment on Behr's cause of action for fraud by misrepresentation. We also agree with Redmond that the award of damages for future medical expenses is excessive; but reject his argument as to the award of punitive damages. Finally, we agree with Redmond that Behr is not entitled to recover her expert witness fees.
II. FACTUAL SUMMARY AND PROCEDURAL HISTORY^[1]
In 1975, Redmond learned he had genital herpes. When an outbreak of the disease occurs, blistering lesions and scabs are produced on or near the genitals. During the time relevant here, Redmond experienced approximately two outbreaks of the disease each year. He knew the disease was contagious and believed the risk of transmitting the disease to a sexual partner was high when he had an outbreak and very low--but not entirely without risk--when he had no lesions.
Redmond met Behr in May 2001 at a party at Redmond's home in Minnesota. In September 2003, they met for a lunch date in the Palm Springs area, where Behr lived. In the weeks that followed, they occasionally talked by telephone and met for dinner. The two began a sexual relationship in October 2003. Prior to having sex, Behr told Redmond that she â€