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Summary judgment affirmed where defendant tested negative for STD he allegedly transmitted to plaintiff.

Where plaintiff had not been tested for specific STD before relationship with defendant, and defendant presented uncontradicted medical proof that he did not have said STD, summary judgment in case where plaintiff alleged defendant gave her STD was affirmed. In P.H. v. Cole, No. M2020-01353-COA-R3-CV (Tenn. Ct. App. June 7, 2021), plaintiff filed a complaint asserting claims for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, and fraud based on plaintiff’s allegation that she contracted HSV-2, a sexually transmitted disease, from defendant. Plaintiff and defendant “dated for a period of time between 2014 and 2018,” and plaintiff tested positive for HSV-2 in 2018.

Five days after filing his answer in this case, defendant filed a motion for summary judgment. In support of this motion, he attached blood test results showing that he was negative for HSV-2, as well as the declaration of Dr. Wawa, the doctor in charge of the medical center where defendant was tested. In response, plaintiff suggested that defendant’s test results might not be accurate if he was immunocompromised, which prompted defendant to get tested for HIV. Defendant then filed a second declaration from Dr. Wawa along with test results showing that he tested negative for HIV and “was not immunocompromised.”

During a hearing on the summary judgment motion, plaintiff’s attorney “conceded that, although [plaintiff] was tested for sexually transmitted diseases before she and [defendant] began their sexual relationship, she was not tested for HSV-2 until 2018, after the parties’ sexual relationship had ended.” Based on this concession and the evidence presented by defendant, the trial court granted defendant summary judgment, and the Court of Appeals affirmed.

“To prevail in her lawsuit, [plaintiff] was required to prove that [defendant] transmitted HSV-2 to her.” Defendant presented test results and a declaration from the chief medical officer at the clinic where he was tested showing that he did not have HSV-2. Plaintiff alleged that the Dr. Wawa was unable to authenticate defendant’s test results because he did not personally observe defendant’s blood draw, did not personally perform the blood draw, did not personally confirm defendant’s identity at the clinic, and did not personally oversee the testing of the blood samples. Rather than asking for the hearing to be continued so that she could “depose Dr. Wawa or…obtain affidavits in opposition to Dr. Wawa’s declarations,” plaintiff asked the trial court to order defendant “to undergo an independent medical examination pursuant to Tenn. R. Civ. P. 35.01.” The trial court denied the request, finding that “there [was] no controversy here regarding the defendant’s medical status,” as plaintiff “failed again to rebut [defendant’s] proof with any expert testimony showing why the defendant’s medical status would still be an issue.” The Court of Appeals agreed, noting that Rule 35.01 requires a party seeking an independent medical examination “to establish two things: (1) that the mental or physical condition of a party is in controversy, and (2) that good cause exists for the physical or mental examination.” (internal citation omitted). Although plaintiff “challenge[d] Dr. Wawa’s declarations, …she did not make the requisite showing to support her request for a Rule 35.01 examination.”

Moreover, plaintiff’s inability to prove her HSV-2 status prior to her relationship with defendant was essentially fatal to her case. The Court explained:

In the absence of evidence of her HSV-2 status before engaging in sexual relations with [defendant], [plaintiff] is unable to prove that [defendant] transmitted HSV-2 to her. This would be the case regardless of whether [defendant] tested positive or negative for HSV-2. By submitting evidence of his negative status for HSV-2 and HIV, and by relying on [plaintiff’s] attorney’s in-court statement conceding that [plaintiff] was not tested for HSV-2 before starting her sexual relationship with [defendant], [defendant] affirmatively negated an essential element of [plaintiff’s] claim and demonstrated that her evidence at the summary judgment stage was insufficient to prove her claim.

(Emphasis added.)

Summary judgment was accordingly affirmed.

Interestingly, this opinion points out that plaintiff’s counsel said during the summary judgment hearing that the complaint stated that plaintiff was tested for HSV-2 prior to the relationship, but that once he received the test results she was referring to, he saw that HSV-2 was not part of that panel.

Does the bolded language above mean that no plaintiff can win a negligent-transmission-of-herpes case without a negative HSV-2 test before she or he engaged in sexual activity before the defendant?  If so, when must the test be conducted?  The month before sexual activity with the defendant?  A week before? A day before?  An hour before?  Is a negative test a month before sexual activity with the defendant plus an affidavit from the plaintiff that there was no sexual conduct with any other person in the intervening month enough to get the case to the jury?

And what about here, where the plaintiff alleged a four-year relationship with defendant, only learning that she got the disease in year four of the relationship?  When must the test on plaintiff have been conducted under such facts?

In my judgment, the defendant’s negative HSV-2 test was sufficient for a grant of summary judgment for the defendant.  If defendant did not have HSV-2, he could not have passed it to plaintiff – case over.  Under such facts, the proof plaintiff had of her disease status before engaging in sexual relations with defendant is immaterial.  On the other hand, if defendant tested positive for the presence of IgG antibody, two alternatives arise:  he may have contracted the disease from plaintiff, or she may have contracted it from him.  Then, her testing history, or lack thereof, becomes material.

This opinion was released one month after oral argument.

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