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70 Cornell L. Rev. 101 (1984-1985)
Liability in Tort for the Sexual Transmission of Disease Gential Herpes and the Law

handle is hein.journals/clqv70 and id is 119 raw text is: LIABILITY IN TORT FOR THE SEXUAL TRANSMISSION OF DISEASE: GENITAL HERPES AND THE LAW INTRODUCTION Several million Americans suffer from genital herpes, an incurable and highly contagious sexually transmitted disease.' In the past two years, a number of victims of genital herpes have filed suit to recover damages from sexual partners who infected them with the disease.2 A few of these plaintiffs have been successful. In 1983, a Washington State judge awarded $40,000 to a woman who contracted genital herpes from her husband.3 In January 1984, an Iowa judge awarded $50,000 to a woman who sued her ex-husband for infecting her with genital herpes.4 The Second District Court of Appeal in California also recently uplheld the right to sue in tort for the sexual transmission of genital herpes.5 The increased incidence of genital herpes poses an immediate health threat to the American public. The disease is recurrent and is I It is estimated that as many as 20 million Americans are infected with genital herpes. See infra notes 23-24 and accompanying text. 2 See, e.g., Olson v. Olson, No. 567066-6 (Cal. Super. Ct., Alameda County, filed Dec. 21, 1982), reported in Williamson, Wfe Sues Husband For Giving Her Herpes, San Francisco Chron., Mar. 25, 1983, at 2, col. 5. In Olson, the plaintiff is suing her husband for punitive and compensatory damages alleging battery, fraud, and negligence for infecting her with genital herpes. See also Liptrot v. Basini, No. 82-19427 (Fla. Cir. Ct., Broward County, filed Sept. 20, 1982), reportedin Mellowitz & Rojas, Herpes: A Causefor LegalAction?, Nat'l LJ., Nov. 8, 1982, at 3, col. 1. Plaintiff Liptrot sued her former lover for fraudulently concealing that he had genital herpes, and subsequently infecting her with the disease. There was a voluntary dismissal of the suit on June 6, 1984. See also St. Clair v. St. Clair, No. DR82-3962 (Mo. Cir. Ct., Jackson County, filed 1982), reported in Ostroff, New Case of Herpes: Banker Sued by Wife, Nat'l L.J., Jan. 10, 1983, at 2, col. 4. Plaintiff has sued her husband for six million dollars in damages for infecting her with genital herpes. See also Wife Says Mate Has Herpes and Sues Him for 5100,000, N.Y. Times, Apr. 11, 1983, at B8, col. 3. In this suit, Alex v. Alex, filed in Wayne County, Michigan, plaintiff sought damages for social stigma, humiliation, medical expenses and 'physical changes to herself and any children she may have desired to bear.' Id The suit was settled out of court. Bunting, Herpes and the Law, Detroit Free Press, June 27, 1984 (NEWSBANK, HEA 77:G5 (1984)). See also Margolick, Herpes and Similar Matters Get More Attention in Court, N.Y. Times, Feb. 26, 1984, at 24, col. 1 (genital herpes suits filed in Califor- nia, Florida, Louisiana, Minnesota, Missouri, and Washington). 3 Alquist-McCarley v. McCarley, Judgment upon Jury Verdict, No. 83-2-00413-4 (Wash. Super. Ct., Snohomish County, Sept. 16, 1983). See also Margolick, supra note 2. 4 McGaw v. Mormann, No. CL 2021-0683 219-46-51C (Iowa Dist. Ct., Wapello County, Jan. 3, 1984), reported in Ex-wifo wins S50,000 or case o herpes, Syracuse Herald-Ameri- can, Jan. 8, 1984, at A14, col. 1. The court found the defendant in default for failure to plead and determined that the woman was entitled to damages from her former spouse for his willful or intentional act of infecting her with genital herpes. McGaw, at 2. 5 Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (1984).

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