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 |
STORY CONTINUE FROM PART I….
B. Waiver of Argument That Special Verdict Omitted Question Concerning the Timing of Behr's Infection
Redmond argues the judgment must be reversed because the special verdict form was ambiguous as to when Behr contracted herpes from Redmond; that is, it fails to specify whether the infection occurred before or after his February 12, 2004, disclosure. Instead, the jury was asked generally whether Behr became infected with genital herpes from Redmond, without any reference to the timing of the infection.
Initially, we note the failure to specify the timing of the infection appears to be significant only if Behr was required to prove she contracted herpes prior to the February 12, 2004, disclosure. As we explained above, however, the evidence was sufficient to find Redmond breached his duty of care toward Behr, and that he concealed the risk of contagion, regardless of when he transmitted the virus. Contrary to Redmond's assertion, Redmond could still be liable for a postdisclosure infection under the circumstances in this case because, after disclosing the disease, he told Behr it would be okay to have sex.
In addition, we agree with Behr that Redmond has waived this alleged defect in the special verdict form. The rules are well-settled. â€
| Description | 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. |
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