Behr v. Redmond, 123 Cal. Rptr. 3d 97

Background

Redmond learned he had genital herpes in 1975, knew it was contagious, and believed transmission risk was higher during outbreaks and lower when asymptomatic.
Behr and Redmond began a sexual relationship in Oct–Dec 2003; Behr learned she was disease-free prior to or at the outset of their contact, and Redmond did not disclose his herpes before Feb 12, 2004.
In Feb 2004 Redmond told Behr he had herpes and initially that there should be no sex, then said it was okay to have sex when he was not having an outbreak; they had sex on Feb 13–14, 2004.
Behr contracted genital herpes, with her first outbreak appearing in March 2004; she subsequently had multiple outbreaks and sought medical testing; Behr filed August 2005 alleging battery, IIED, negligence, negligent infliction, fraud by concealment, and fraud by misrepresentation.
Jury findings favored Behr on liability and damages, assigning substantial past and future economic and noneconomic damages, plus a separate punitive damages award; the trial court entered judgment accordingly.
The Court of Appeal reversed in part, reducing future medical expenses and the compensatory award, and reversed the fraud-by-misrepresentation claim, while upholding other liability findings and the punitive damages award.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is there substantial evidence of liability for herpes transmission pre- or post-disclosure?	Behr contends Redmond’s concealment and misrepresentation made transmission actionable.	Redmond argues post-disclosure transmission cannot be liability unless pre-disclosure causation is shown.	Evidence supports liability; post-disclosure risk conveyed by assurance suffices.
Was Redmond's failure to specify infection timing waived and does the verdict support post-disclosure liability?	Behr argues timing is irrelevant to liability under the facts.	Redmond asserts timing omission requires reversal.	Waived by Redmond; timing omission does not defeat liability given post-disclosure conduct.
Does the special verdict support fraud by misrepresentation?	Behr asserts misrepresentation findings were implied from the verdict.	Redmond contends no explicit finding of misrepresentation was made.	Special verdict does not support misrepresentation; judgment on that claim reversed.
Are future medical expenses properly proven and should the amount be reduced?	Behr argues substantial future medical costs are warranted due to ongoing treatment.	Redmond contends the amount is speculative and should be limited to medication costs over life expectancy.	Future medical expenses are reduced to $72,000 based on medication costs over Behr's life expectancy.
Should expert witness fees be recoverable under Code of Civil Procedure 998?	Behr sought expert fees under 998, as costs of trial.	Redmond contends 998 requires a settlement offer not satisfied here.	Expert witness fees must be reversed; 998 offer requirement not met.

Key Cases Cited

Doe v. Roe, 218 Cal.App.3d 1538 (Cal. Ct. App. 1990) (duty to warn or avoid transmission of herpes)
Kathleen K. v. Robert B., 150 Cal.App.3d 992 (Cal. Ct. App. 1984) (duty and liability for misrepresentation/ concealment in herpes context)
John B. v. Superior Court, 38 Cal.4th 1177 (Cal. 2006) (duty to warn in venereal disease cases; comparison to HIV risk)
Woodcock v. Fontana Scaffolding & Equip. Co., 69 Cal.2d 452 (Cal. 1968) (waiver principles for verdict form objections)
Saxena v. Goffney, 159 Cal.App.4th 316 (Cal. App. 2008) (necessity of factual findings to support claims under special verdicts)
Auerbach v. Great Western Bank, 74 Cal.App.4th 1172 (Cal. App. 1999) (punitive damages and compensatory damages relation; remand when damages miscalculated)
Krusi v. Bear, Stearns & Co., 144 Cal.App.3d 664 (Cal. App. 1983) (remand when compensatory damages are revised; impact on punitive damages)
Roby v. McKesson Corp., 47 Cal.4th 686 (Cal. 2009) (standards for punitive damages review (reprehensibility, ratio, financial condition))