The jury which awarded $6.7 million to a woman who claimed a former sex partner infected her with herpes punished the defendant for his wealth, his attorney said in asking a judge to throw out a verdict he compared to the double-murder acquittal of O.J. Simpson.

“Past verdicts similarly have cried out with obvious injustice,” Robert M. Frisbee argued. “O.J. Simpson's criminal trial was one. The 'hot coffee' verdict against McDonald's is another.”

Frisbee client Tom Redmond, the 77-year-old founder of a hair care products company, had a romantic relationship with Patricia Behr for nine months. In January, a Riverside County (Calif.) Superior Court jury found him liable for failing to tell her he had herpes before their first sexual encounter in October 2003.

The verdict included $4 million in compensatory damages for future medical expenses and pain and suffering, $2.75 million in punitive damages –- and a 2004 BMW which the jury found Redmond had given Behr as a gift not a loan.

It didn't matter to the jury, Frisbee said in a motion for a new trial, that Behr continued to have unprotected sex with Redmond even after he allegedly advised her of his infection in February. Or that he took her “on exotic trips, bought her fancy clothes, and treated her like Cinderella.”

The jury's attitude, he said, was, “We're going to make her rich because defendant is, we don't like him, and we have the power to do it.”

Behr -- the mother of actor Jason Behr -- claimed she had herpes symptoms in March 2004 when she noticed a rash on her leg. But Frisbee said that “the worst that happened to plaintiff (aside from being disappointed in her desire to marry a wealthy man) is that she had sex with the defendant ten times without knowing he had herpes.”

He noted that, according to Behr's own medical expert, she did not have her initial outbreak until February 2005 –- 10 months after her last sexual encounter with Redmond –- and the typical initial outbreak is 30 to 90 days after exposure to the herpes virus.

“It cannot really be said when her infection occurred, but it is highly improbable that it occurred prior to February 2004, when Behr says Redmond told her he had herpes,” Frisbee said.

Behr attorney Shaun M. Murphy has said the verdict was “a clear message to all persons infected with a sexually transmitted disease that this type of behavior simply will not be tolerated.” Frisbee had a very different spin:

Perversely, if this verdict is allowed to stand, it would work to defeat California's policy discouraging the spread of STD[s]. Why would a person of means ever tell a partner about having an STD if a verdict like this might result? Better to take the .02 chance [of transmitting the disease] and hope for the best. If this plaintiff had herpes before their affair, which is just as likely  the case, all defendant did was paint a target on [h]is back whenever he told her about his herpes.

Frisbee appealed to Retired Judge William E. Burby to act as the “13th juror” and “set it [the verdict] right.” A hearing on the motion is scheduled for April 17.

By Matthew Heller
3/2/09