AIDS Exceptionalism Rejected

California Supreme Court finds those with “reason to know” have liability

In a hotly-argued 4-3 decision, the California Supreme Court ruled on July 3 that a wife could sue her husband for negligent transmission of HIV based on the theory that he had a duty to disclose the possibility that he might be infected because he was having sex with men on the side—even if he believed he was not infected.

At the same time, however, the court narrowed the scope of pretrial discovery requested by his wife.

The decision in John B. v. Superior Court arose from a strange set of facts. The couple, identified in the court’s opinion only as John and Bridget were married in July 2000. According to Bridget, John told her that he was a monogamous healthy man, and he insisted on having unprotected sex with her.

In August 2000, John applied for life insurance and was tested for HIV, and the test came back negative. Just a few months later, however, Bridget experienced symptoms that led her to get tested, and she was found HIV-positive. When John went to be tested, he also tested positive. So, if his life insurance test was accurate, he was probably infected no earlier than six months prior to receiving the August negative result.

Bridget claimed to have received a phone call from somebody at John’s doctor’s office earlier in 2000, telling her that he had tested positive for HIV, the basis for her claim that he knew he was HIV-positive when they had unprotected sex. Also, John later confessed to Bridget that he had been having sex with men for years and continued to do so after their wedding. But John maintained that he first learned he was HIV-positive after Bridget’s HIV test.

Bridget accused John of infliction of emotional distress and wrongful transmission of the virus. Part of Bridget’s complaint alleged that John was negligent in not disclosing the risks of HIV exposure arising from his sexual encounters with men, and that his duty to make such a disclosure arose because he either knew or had reason to know that he was HIV-positive.

Bridget’s pretrial evidence discovery requests sought a wide range of information about John’s sexual experiences, medical records, and “lifestyle,” including the timing, identity, and current contact information of all his male sexual partners going back ten years. John resisted virtually all these requests, and the trial court found that the scope of Bridget’s claim unnecessarily invaded the privacy of John’s sexual partners. Discovery was cut back to those times when John had unprotected sex with men, without requiring him to identify them. The judge enforced Bridget’s other discovery requests, which included inquiries into John’s knowledge of the HIV or AIDS status of his sexual partners.

John countered with an action against the Superior Court, contesting the lawfulness of the discovery request, claiming privilege and privacy under California’s HIV confidentiality laws and its constitutional guarentees. The Court of Appeal disagreed with him, reaffirming the trial court’s order, and John appealed to the Supreme Court.

The majority of the court, in a decision by Chief Justice George Baxter, enforced the discovery requests even while cutting back their scope to the six months prior to the negative insurance company test result, the period during which John presumably was infected. The court also addressed a question of new California law it felt needed to be resolved—whether Bridget could sue John for negligence based on the theory he had reason to know he might be HIV-positive, and thus had duty to disclose this to Bridget.

Every state high court that has considered this issue has adopted some version of a “knew or had reason to know” standard and a majority of the California Supreme Court saw no reason to depart from this approach.

This provoked a scathing dissent from Justice Carlos R. Moreno, who charged the court failed to adequately consider the policy consequences of its ruling. Relying on the state’s HIV confidentiality law that he said encouraged people to get tested, Moreno argued that HIV should not be treated as if it were just another sexually transmitted disease. He pointed to the decisions from other jurisdictions to bolster the argument and said legislative intent and state constitutional privacy principles backed his thinking.

Baxter responded that failing to impose liability in this situation could promote deliberate ignorance—people avoiding testing in order to be able to escape responsibility. He also argued that once John responded to Bridget’s suit claiming she infected him, he brought his own sexual history into the case.

Judge Kathryn Mickle Werdegar, in a separate dissent, expressed alarm that the majority’s opinion could lead to anybody who was infected with HIV filing lawsuits against all their known past sexual partners and then conducting intrusive and wide-ranging discovery.

Since John’s constitutional privacy claims also invoked the federal Constitution unsuccessfully, he could theoretically seek further review from the U.S. Supreme Court, but it is unlikely that court would get involved at this point, especially because the California majority decided to follow the same approach taken in other jurisdictions.