There is “nothing unfair” about making a man infected with genital herpes liable for indirectly transmitting the disease through his married lover to her spouse, a New York judge has ruled in a surprisingly thin analysis of an issue of first impression.

Several states have recognized the tort of negligent transmission of a sexually transmitted disease by one sexual partner to another. But Westchester County (N.Y.) Supreme Court Judge Nicholas Colabella ventured into relatively uncharted legal waters by finding that a husband could sue the alleged source of his wife's herpes infection — a psychiatrist with whom she had been having an affair — for failing to prevent transmission of the disease.

Carl Levine alleged his wife infected him with herpes after contracting it from her lover, Dr. Robert Werboff.

“The duty to warn a sexual partner or otherwise take precautions to prevent the transmission of a known venereal disease ... should be extended in the circumstances at bar to the spouse as well,” Colabella said in a recent decision.

Only two states — Ohio and Oklahoma — have gone so far as to stretch the duty to disclose infection with an STD beyond the original sexual partner.

Colabella cited the Ohio Supreme Court's decision in Mussivand v. David, 544 N.E.2d 265 (1989). But he did not address whether allowing claims for negligent transmission of a disease to a third party amounts to an end-run around laws banning “heart-balm” claims such as “alienation of affections.”

Since “adulterous intercourse” is not actionable, courts should not hold an “offending spouse's sexual partner” liable for an “injurious consequence of extramarital copulation,” a dissenting Oklahoma Supreme Court justice said in Lockhart v. Loosen, 943 P.2d 1074 (1997).

Werboff, who practices in White Plains, N.Y., allegedly “seduced” Carl Levine's wife after he began treating her in 2000. In a complaint filed in October 2009, Levine said he did not have herpes (HSP) before his wife slept with Werboff and did not have sex with “anyone other than his wife from the time he did not have HSP until he contracted HSP.”

“[A]s a result of the acts of the Defendant, Carl Levine has been rendered sick, sore and disabled” and "suffered, among other things, infection with HSP,” he alleged.

In denying Werboff's motion to dismiss, Judge Colabella noted there is “judicial resistance to the expansion of duty” that reflects “practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.”

But extending a duty to the spouse of a person infected by herpes “presents neither concern,” he concluded, since the extension is “to a narrowly defined class of persons” and “the potential for harm to the married person who becomes infected and the spouse of the married person who thereafter becomes infected is the same.”

In Mussivand, the Ohio Supreme Court stressed that it did not mean to say the lover of a married woman “subsequent to his affair with [her], will be liable to any and all persons with whom she may have sexual contact. A spouse, however, is a foreseeable sexual partner.”

A 5-2 majority of the Oklahoma Supreme Court in Lockhart came to a similar conclusion in finding that a woman could sue her husband's lover as the indirect source of her herpes infection. But Justice Marian P. Opala made some strong points in his dissent.

“Criminal conversation is the true anchor of today's claim,” he said, referring to the tort of unlawful sexual intercourse between a spouse and a third party. Since Oklahoma has banned such claims,

[P]laintiff's harm from her genital herpes is nothing more or less than damage inflicted without a legal wrong. Transmission of her venereal disease did not occur without copulation, and the infection-bearing intercourse is immunized from tort liability.

Werboff's attorney says he will appeal and Opala's dissent could give him some useful ammunition.

By Matthew Heller
6/13/10