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;
II. FACTUAL SUMMARY AND PROCEDURAL HISTORY
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 "was free of disease." According to Behr, Redmond told her he was "healthy like I was." This discussion led her to engage in unprotected sex with Redmond.
Just prior to having sex the first time, Redmond told Behr he had a penile implant because of prostate cancer. He did not tell Behr he had herpes. From October 11, 2003, through December 13, 2003, they had sex on 10 occasions.
In February 2004, Behr traveled to Redmond's home in Scottsdale, Arizona, to be with him for the Valentine's Day weekend. On February 12, 2004, the two took a bath together. Redmond told Behr (according to Behr): "`I need to tell you that I have herpes. I've had it for a long time, about 30 years. And I think I'm having an outbreak, so we can't have sex.'" They did not have sex that evening.
The next day, Redmond told Behr he was wrong about having an outbreak and that it was "okay" to have sex. They had sex that day and the following day, February 14, 2004.
Expert witnesses for both parties indicated that herpes can be transmitted even when the person with the virus is asymptomatic.
At some point, Behr contracted the genital herpes virus. Behr testified she had her first outbreak in March 2004, although she did not realize it was herpes at the time. She explained that she "didn't know what was going on" and she "didn't . . . want to believe it." According to Behr's expert witness, some people who suspect they have been infected with a sexually transmitted disease respond by being in denial about the disease. Behr did not see a doctor about her symptoms.
In April 2004, Behr travelled to Spain to be with Redmond. During a 10-day period from April 8, 2004, to April 17, 2004, they had "sex mostly every night." After she returned from Spain, the two had no further sexual contact.
Behr testified she suffered a second outbreak in April 2004. In June 2004, Behr met with Natalie Rue, a nurse practitioner. Behr testified she asked to be tested "for everything" and to see if she "had any diseases." Rue, however, did not test Behr for herpes. Instead, she tested Behr for human immunodeficiency virus (HIV). The test results were negative. Behr was relieved and thought that she was "just being paranoid."
Behr testified she suffered additional herpes outbreaks in September 2004, December 2004, and February 2005. As more outbreaks occurred in the same part of her body, she began to suspect she had a disease. During the February 2005 outbreak, she went to see Rue. Rue noted a lesion on Behr's genitalia, which she described as a "recurrent lesion."
In August 2005, Behr filed a complaint against Redmond alleging, as is relevant here, causes of action for battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, fraud by concealment, and fraud by misrepresentation. The essence of these claims is that Redmond knew he had herpes when he and Behr had sex; Redmond initially concealed the disease from Behr; he later informed Behr of the
The case was tried to a jury, which returned special verdicts in favor of Behr. The special verdict form returned by the jury includes the following questions (with the jury's answers in parenthesis): "Did Patricia Behr become infected with genital herpes from Thomas Redmond?" (Yes); "Did Thomas Redmond inform Patricia Behr prior to them having sexual intercourse that he was infected with genital herpes?" (No); "Was Thomas Redmond negligent?" (Yes); "Was Thomas Redmond's negligence a substantial factor in causing harm to Patricia Behr?" (Yes); "Did Patricia Behr's negligence contribute to her contraction of genital herpes?" (No).
The verdict form then called for the jury to specify the amount of damages suffered by Behr caused by the negligent transmission of genital herpes to her by Redmond. The jury responded with $3,600 for past economic loss (medical expenses); $2.5 million for future economic loss (medical expenses); $500,000 for past noneconomic loss, including physical pain and mental suffering; and $1 million for future noneconomic loss, including physical pain and mental suffering.
Next, the special verdict form included the following questions (and answers): "Did Thomas Redmond fraudulently conceal his genital herpes from Patricia Behr before he had sexual intercourse with her?" (Yes); "With regard to his sexual relationship with Patricia Behr, was Thomas Redmond's conduct outrageous?" (Yes); "Did Thomas Redmond intend to cause Patricia Behr emotional distress or act with reckless disregard of the probability that she would suffer emotional distress?" (Yes); "Did Patricia Behr suffer severe emotional distress?" (Yes); "Was Thomas Redmond's conduct a substantial factor in causing Patricia Behr's severe emotional distress?" (Yes); "Did Thomas Redmond touch Patricia Behr with the intent to harm or offend her?" (Yes); "Did Patricia Behr consent to be touched?" (No); "Was Patricia Behr harmed or offended by the touching?" (Yes); "Would a reasonable person in Patricia Behr's situation have been offended by the touching?" (Yes). With respect to these questions, the jury then set forth the same amounts of damages it had identified for the questions concerning negligence.
Finally, the jury answered "Yes" to the question whether Behr was "entitled to a judgment for punitive damages . . . ."
The issue of punitive damages was tried separately. The jury returned a special verdict setting the amount of punitive damages at $2.75 million.
Redmond moved for a new trial on the ground, among others, that the amount of damages awarded to Behr was excessive. The court denied the motion.
Additional facts will be discussed below where relevant to this appeal.
A. Redmond's Duty of Care and the Sufficiency of the Evidence
On appeal, Redmond does not dispute these general principles. Nor does he dispute the sufficiency of evidence that he and Behr had sexual contact on
Redmond's primary argument on appeal has two parts. First, Redmond contends that because Behr consented to sexual contact with him after he disclosed he had herpes on February 12, 2004, he cannot be liable for the transmission of herpes to Behr that occurred after that date. Second, he argues there is no substantial evidence that the herpes virus Behr eventually contracted was from sexual contact that occurred before Redmond's disclosure. For the reasons that follow, we reject these arguments.
Because the jury could have reasonably concluded that Redmond's disclosure of herpes, coupled with his assurance that it was okay to have sex, constituted negligence and fraudulent concealment, it was not necessary for Behr to prove she contracted herpes as a result of sex that occurred prior to the February 12, 2004, disclosure. However, even if the jury concluded that Behr contracted herpes as a result of sexual contact that occurred prior to February 12, 2004, we conclude the evidence was sufficient to support the verdict.
"In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in favor of the prevailing party and we indulge all legitimate and reasonable inferences to uphold the verdict if possible. `It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. . . .' [Citation.]" (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043 [75 Cal.Rptr.2d 777].) "`[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' [Citations.]" (Leff v. Gunter (1983) 33 Cal.3d 508, 518 [189 Cal.Rptr. 377, 658 P.2d 740].)
Behr testified she had her first outbreak of herpes in March 2004. This was approximately five months after Behr and Redmond began having sex and approximately three months after the last time they had sex prior to Redmond's February 12, 2004, disclosure of herpes. Her expert witness testified that the average time for an initial outbreak of herpes in women usually occurs between 30 and 90 days after infection. However, he added
Redmond contends that Behr's testimony that she suffered her initial outbreak in March 2004 does not constitute substantial evidence of such an outbreak. He points to the absence of any reference to herpes in her medical records prior to February 2005. Indeed, there is no record of any medical test or diagnosis prior to February 2005 indicating that she had herpes. However, although the medical records do not provide evidence confirming that Behr had herpes prior to February 2005, the absence of such evidence does not negate or even contradict her testimony. There is no medical record concerning the March 2004 outbreak because Behr did not see a doctor about that outbreak. Although the failure to seek treatment arguably affects the credibility of Behr's testimony about a March 2004 outbreak, the failure may also have been the result of being in denial about contracting the disease, as suggested by her expert witness. As Behr testified, she "didn't . . . want to believe it" at that time. In short, although the absence of medical evidence confirming Behr's March 2004 outbreak may affect the weight the jury accorded her testimony, it does not render the testimony without substance.
Redmond further asserts that Behr's testimony of her March 2004 herpes outbreak is not substantial evidence of an outbreak of herpes because Behr is not qualified to diagnose herself with a disease. Behr is not, as Redmond points out, a doctor. We reject this argument.
The fact that Behr's perception that the March 2004 event was a herpes outbreak was not formed until after she was diagnosed with the disease does not necessarily invalidate the perception or render her testimony entirely without substance. It is entirely possible that symptoms of herpes might not be recognized as such by the herpes sufferer when they first appear, but can, with the benefit of hindsight and a subsequent diagnosis, be accurately perceived as an outbreak.
Finally, Redmond argues that Behr's testimony regarding the March 2004 outbreak is not consistent with the symptoms of herpes. The argument is without merit. Significantly, Behr was never asked at trial to describe, and did not describe, the symptoms of her March 2004 outbreak. She testified to the fact of having an outbreak in March 2004 and Redmond's counsel never inquired of the nature of the outbreak or her symptoms. Redmond relies instead upon Behr's testimony regarding symptoms in February 2005, not March 2004. Moreover, Redmond ignores the testimony of Behr's medical expert, who said that Behr described the March 2004 outbreak to him as including a blistered, genital lesion, which is consistent with the expert's testimony regarding herpes symptoms.
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.
Although Behr, as the plaintiff, was responsible for having a verdict form submitted to the jury on her case (see, e.g., Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1557 [107 Cal.Rptr.3d 307]), it was Redmond who believed that the timing of the infection was important to determining liability or the absence thereof. It was thus incumbent on him to see that findings regarding the timing of the infection were included in the verdict. (See Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 746 [223 Cal.Rptr. 859].)
Redmond had the opportunity to ensure that such questions were included. According to Behr, Redmond's counsel actually prepared the verdict form. Although the record is not perfectly clear on this point, Redmond does not deny this assertion and concedes that both parties stipulated to the form and that "[t]he stipulation is tantamount to both parties having drafted the special verdict." As, at least, a codrafter of the form, Redmond clearly had the opportunity to include questions regarding the timing of the infection that he now considers "crucial." Not only did he not do so, he failed to seek any correction or clarification of the verdict at any time, even though the jury was polled regarding the verdict and was not discharged until after the verdict was returned on the punitive damages phase two days later. In light of Redmond's purported interest in the omitted questions, his counsel's involvement in drafting the verdict, and his failure to clarify or correct the verdict despite ample opportunity to do so, we conclude he has waived any objection to the failure of the verdict form to specify whether the infection occurred before or after the February 12, 2004, disclosure.
C. Special Verdict Does Not Support Judgment for Fraud by Misrepresentation
Redmond also contends the judgment on Behr's cause of action for fraud by misrepresentation must be reversed because it is not supported by the special verdict form. We agree.
Behr's complaint includes separate causes of action for fraud by concealment and fraud by misrepresentation. The fifth cause of action for fraud by concealment was based on Redmond's alleged failure to disclose his herpes to Behr. The sixth cause of action for fraud by misrepresentation was based on allegations that Redmond misrepresented to Behr that she could not be infected with herpes if he was not having an outbreak of the disease at the time of sexual contact. As Redmond points out, the special verdict form called for the jury to make a finding as to whether Redmond "fraudulently conceal[ed]" his genital herpes from Behr, but did not call for a finding (and the jury did not make any finding) as to whether Redmond made any affirmative misrepresentation. Nevertheless, the court entered judgment in Behr's favor on both the fifth and sixth causes of action.
The waiver rules discussed in the preceding part do not apply here. The failure to include a finding on the fact of misrepresentation is not an ambiguity that needed clarification; it is simply the absence of a factual finding necessary to support a cause of action. Like the defendant in Saxena, Redmond "is not challenging the special verdict form as such. He merely argues the verdict form submitted by plaintiff, and the verdict returned by the jury, does not support entry of judgment on a . . . theory" asserted in the complaint. (Saxena v. Goffney, supra, 159 Cal.App.4th at p. 327.) As mentioned above, Behr, as the plaintiff, had responsibility for submitting a verdict form sufficient to support her causes of action. (See, e.g., Amerigraphics, Inc. v. Mercury Casualty Co., supra, 182 Cal.App.4th at p. 1557.) If she chose not to include a proposed factual finding essential to
D. Compensatory and Punitive Damages Awards
In addition to awarding $3,600 for Behr's past medical expenses, $500,000 for past noneconomic loss, and $1 million for future noneconomic loss, Behr was awarded $2.5 million for future medical expenses. Redmond challenged the award for future medical expenses in his motion for new trial. The trial court rejected the argument. On appeal, Redmond argues that the award is unsupported by substantial evidence and should be reduced to no more than $72,000—the approximate cost of certain prescription medication for the remainder of Behr's life expectancy. If this is done, he argues further, the punitive damages award will be "rendered `suspect' and must also be
In support of her claim for future medical damages, Behr argues that she is "uninsurable" because of her herpes and that her prescription medication will cost her $93,600.
Regarding the expense for prescription medicine, Behr testified she was taking the medication Valtrex to control the disease. According to her medical expert, "Valtrex usually works when taken for long periods of time." Redmond's expert stated that Valtrex "suppresses the herpes virus and suppresses the replication of herpes virus." Behr had not had an outbreak of the disease while taking the medication. There was evidence that a one-month supply of Valtrex costs $200.
Redmond does not dispute the sufficiency of the evidence of the cost of Valtrex or that Behr can recover, as a future medical expense, an amount equal to the expected cost of the medication over her remaining life. Behr was 56 years old at the time of trial. Redmond points out that Behr offered no competent evidence of her life expectancy. Instead, her counsel referred the jury to Behr's testimony that Behr's mother was 95 years old and, based on that fact, argued that "[i]t's entirely likely that she has a good 35 years left." We agree with Redmond that Behr's testimony of her mother's age, without more, is insufficient to support a jury's determination of Behr's remaining life expectancy.
Redmond does not argue that the failure of proof of life expectancy prevents Behr from recovering any amount for her prescription medication; instead, he asserts that Behr should be limited to the cost of the medication over her remaining life as indicated in a life expectancy table included in CACI jury instructions. (See Judicial Council of Cal., Civ. Jury Instns. (2010) Life Expectancy Table—Female, p. 901.) As shown in this table, the life expectancy of a woman of Behr's age at the time of trial is 27.4 years.
We agree with Redmond.
Although we agree with Redmond regarding compensatory damages, we reject his argument regarding punitive damages.
In Krusi, a jury awarded the plaintiffs $58,940 in compensatory damages and $50,000 in punitive damages. (Krusi, supra, 144 Cal.App.3d at p. 672.) The trial court reduced the compensatory award by $30,000. (Ibid.) The Court of Appeal reversed and remanded with directions for the trial court to consider whether certain payments should be applied as an offset to further reduce the award of compensatory damages. (Id. at pp. 672-678.) The court further instructed the trial court, "after it has determined the proper amount to offsets to the compensatory damage award, [to] consider whether there should be a reduction in the amount of punitive damages. If a reduction is determined to be appropriate, the trial court may wish to order a remission of a portion of the punitive damages as a condition to an order granting a new trial." (Id. at p. 681.)
In Auerbach, a jury found the defendant bank liable on contract and fraud claims and awarded the plaintiff $207,155 on each claim. (Auerbach, supra, 74 Cal.App.4th at p. 1184.) The jury also awarded $2.6 million in punitive damages. (Ibid.) The Court of Appeal held that the recoverable compensatory damages on the fraud claim were limited to $6,750. (Id. at pp. 1189, 1192.) The court then addressed the punitive damages award, stating: "We cannot, however, simply reduce the damages and modify the award on the fraud cause of action at this stage. Because the jury was misled about the amount of compensatory damages it could award, its punitive damage award is suspect. Although there is no fixed ratio, punitive damages must be proportional to recoverable compensatory damages. [Citation.] Because the punitive damages are out of proportion to the actual damages suffered by the [plaintiffs], the punitive damage claim will have to be retried." (Id. at p. 1190.)
Neither Auerbach nor Krusi stands for the proposition that an award of punitive damages must be reversed and retried whenever the Court of Appeal
In the absence of any challenge to the sufficiency of the evidence or the constitutionality of the punitive damages award, and having rejected the ground asserted by Redmond, we will not disturb the award.
In a petition for rehearing, Redmond contends the punitive damages award is constitutionally excessive and argues that he has not waived the argument when he failed to assert it in his opening brief. We hold that the argument has been waived. In his opening brief, Redmond's entire argument concerning the punitive damages award consists of the following two sentences and citations: "Punitive damages `must be proportional to recoverable compensatory damages.' (Auerbach[, supra,] 74 Cal.App.4th [at p.] 1190 . . . .) Accordingly, where, as here, a jury's mistake about the amount of recoverable compensatory damages requires reversal of such an award, an accompanying punitive damages award is rendered `suspect' and must be [sic] also be reversed for determination anew. (Ibid.; see also Krusi[, supra,] 144 Cal.App.3d [at pp.] 680-681 . . . .)" Neither Auerbach nor Krusi discussed the constitutionality of punitive damages awards.
In his petition, Redmond now contends that his failure to assert a constitutional argument "was true only as to the original judgment" and that he "has never before had an opportunity to brief the question of whether the $2.75 million punitive award assessed against him is constitutionally excessive when measured against the reduced compensatory award." The argument is disingenuous.
Redmond's argument in his opening brief as to the "suspect" nature of the punitive damages award is predicated upon his assumption that we would
Redmond simply cannot logically or fairly argue that his argument as to the suspect nature of the award was properly asserted while a constitutional argument would have been premature. Just as he had the opportunity to argue, and did argue, that the reduction of compensatory damages rendered the punitive damages award suspect, he had the opportunity to argue that the same reduction rendered the award unconstitutional. Yet he elected to raise only the former argument and forego the latter. Accordingly, his failure to brief the constitutional issue constitutes a waiver or abandonment of the issue on appeal. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346, fn. 6 [100 Cal.Rptr.2d 446]; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1 [54 Cal.Rptr.2d 512].)
E. Award of Expert Witness Fees
Following trial, Behr filed a memorandum of costs in which she sought $12,865 in expert witness fees. The court denied Redmond's motion to strike the request for expert fees. On appeal, Redmond contends the court's ruling was error. Behr does not dispute this issue.
The judgment is reversed as to the sixth cause of action for fraud by misrepresentation. The award of future medical expenses is reduced to $72,000, and the total compensatory damages award is reduced to
Hollenhorst, Acting P. J., and McKinster, J., concurred.