A $15 million “fear of AIDS” lawsuit filed against former New York Mets star Roberto Alomar by an ex-girlfriend may hinge on whether he can be held liable for having unprotected sex with her when he had “reason to know” he was HIV positive or had AIDS.

Ilya Dall says she has developed AIDS phobia since Alomar allegedly tested positive for HIV in 2006. She has tested negative herself, but alleges his “negligent behavior” in refusing earlier tests despite being diagnosed with conditions associated with HIV has caused her “immense emotional, psychological and mental suffering.”

“[T]he Defendant knew or should have known he was HIV positive or suffering from AIDS when he was having unprotected sexual relations with the Plaintiff,” Dall says in a complaint that was removed from state to federal court last week.

Several states have recognized a “reason-to-know” or “constructive knowledge” standard in negligent transmission of HIV or AIDS phobia cases. A defendant is not required to have actual knowledge of HIV infection, the California Supreme Court ruled in 2006,

when there is sufficient information to cause a reasonably intelligent actor to infer he or she is infected with the virus or that infection is so highly probable that his or her conduct would be predicated on that assumption. John B. v. Superior Ct., 38 Cal.4th 1177.

New York has yet to examine the constructive knowledge issue in detail. In Plaza v. Estate of Wisser, 626 N.Y.S.2d 446 (1995), an appeals court said only that a suit alleging a man knew or had reason to know he was infected with HIV prior to being diagnosed with the virus could withstand a motion to dismiss.

But such cases became potentially more lucrative for plaintiffs in New York when the state's highest court ruled last year that they can recover damages beyond the initial six-month period of anxiety following exposure to the HIV/AIDS virus. Ornstein v. New York City Health and Hospitals Corp.

Dall is seeking unspecified compensatory damages for her post-traumatic stress disorder resulting from fear of AIDS and $15 million in punitive damages for Alomar's “wanton and reckless disregard” of her health and safety.

According to the suit, the second baseman assured her “he was free of all sexually transmitted diseases” when they began dating in 2002. But he allegedly ignored a doctor's advice to take an HIV test after being diagnosed in March 2005 with idiopathic thrombocytopenia purpura (ITP), a blood disorder common in people infected with HIV.

A few weeks later, Dall says, the same doctor advised Alomar that he had oral thrush, a yeast infection which is also associated with AIDS. Again, he “refused to submit to an HIV test,” telling Dall that “he was recently tested for HIV/AIDS and was not infected.” They continued having unprotected sex until his positive HIV test in early 2006.

Assuming Alomar is HIV positive, the alleged diagnoses of ITP and thrush should amount to sufficient evidence of constructive knowledge to meet the John B. requirements.

Alomar, who retired from baseball in 2004, has said he is in “very good health” and described the suit as “full of lies.” “I am deeply saddened that someone I cared for would make such terrible accusations and try to hurt me in this way,” he said in a statement.

In a constructive knowledge case, an Iowa jury recently awarded $1.5 million to a woman who sued a man for infecting her with a sexually transmitted disease after telling her he was disease-free. A Los Angeles judge in November ordered the defendant in John B. to pay his ex-wife $12.5 million for infecting her with HIV.

By Matthew Heller
2/15/09