A California appeals court has affirmed a jury's finding that a wealthy businessman negligently infected his girlfriend with genital herpes but reduced the award of $6.75 million in damages — one of the largest ever in a “sex tort” case — to $4.3 million.

Thomas Redmond, the founder of the Aussie hair products line, had called the February 2009 verdict against him an “obvious injustice.” He was found liable for infecting Patricia Behr with herpes while he was dating her even though he told her during the relationship that he had the disease.

“[W]e have found no case anywhere in the United States in which a court has upheld a judgment for tortious transmission of a sexually transmitted disease where the defendant disclosed he had a sexually transmitted disease and, despite this disclosure, the plaintiff willingly engaged in unprotected sex with him,” Redmond's lawyers said in an appeal brief.

In its decision, the 4th District Court of Appeal said the jury went too far in awarding Behr $2.5 million for future medical expenses, agreeing with Redmond that she should only get $72,000 for the cost of herpes medication over her expected life span. But it also said the evidence was sufficient to support the jury's key finding of liability.

“[T]he 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,” Justice Jeffrey King wrote for the court.

Behr testified that Redmond told her on Feb. 12, 2004, “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.” The next day, though, he said he was wrong about having an outbreak and that it was “okay” to have sex.

King suggested that Redmond should have said only, “I have herpes.” By going beyond that “simple disclosure,” he said, Redmond “negligently or intentionally misled Behr into believing there was no risk of getting herpes.”

Expert witnesses on both sides of the case told the jury that herpes can be transmitted even when the person with the virus is asymptomatic. Citing Redmond's “apparent knowledge” of the contagiousness of herpes, King said the jury “could reasonably conclude that Behr justifiably relied on Redmond’s assurance that it was okay to have sex with him.”

The jury's award also included $1.5 million for past and future pain and suffering and $2.75 million in punitive damages.

Redmond may be one of the wealthier people ever to be involved in such a case. At the time he met Behr, a court document said, he had recently sold his hair care products company “for many millions ... owned beautiful homes in several locations, had a private jet, and enjoyed the trappings of his hard-earned wealth.”

The couple began dating in October 2003. Redmond argued there was no substantial evidence that Behr contracted herpes between that time and his disclosure that he was infected with the virus.

But the appeals court said that “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.”

Behr was diagnosed with herpes in February 2005 but she testified that she first noticed symptoms in March 2004.

“Behr’s expert’s testimony that the initial outbreak could occur up to one year after infection, and Redmond’s expert’s testimony regarding activation after a long period of dormancy, provide ample support for a conclusion that Behr’s March 2004 outbreak of herpes was caused by sexual contact with Redmond between October and December 2003,” Justice King said.

By Matthew Heller
3/2/11