Not a Lexis Advance subscriber? Try it out for free.

Lopez v. Clarke

Court of Appeal of Florida, Fourth District

April 1, 2015, Decided

No. 4D12-3859


 [*806]  Gross, J.

The trial below was a tale of two former lovers—Monica Lopez and John Clarke—regarding who infected the other with the genital herpes virus. Both denied having the virus prior to their relationship. Both said they were faithful to each other. Both suffered genital herpes outbreaks—Lopez in February, 2005 and Clarke a few months later. Lopez sued Clarke and the case went to trial on claims of battery, negligence, and fraudulent concealment. The jury resolved the case in favor of Lopez, but only on the fraudulent concealment claim and for just $12,500.1

We reverse the judgment based on fraudulent concealment. Such fraud must be based on the [**2]  tortfeasor's actual knowledge that he harbors a disease. Here, there could be no actual knowledge because Clarke secured a clean blood test from a physician a week prior to starting his relationship with Lopez. We also affirm the judgment on the defense verdicts for battery and negligence.

The Trial

The trial was an ordeal. Both parties were forced to divulge intimate details about their sex lives, medical visits, and genital ailments. At its core, the jury was tasked with resolving three disputes. First, whether Clarke was, in fact, infected with the herpes virus prior to engaging in sexual intercourse with Lopez. Second, whether Clarke knew of his infection when he had intercourse with Lopez, yet failed to issue a warning. And, finally, whether Clarke's failure to disclose resulted in Lopez contracting the herpes virus. The case was close on each of these issues.

The trial was a battle of the experts, making a basic understanding of the herpes virus crucial to evaluating the facts. As one expert explained, herpes is an "ancient virus[ ] that ha[s] evolved with" humans over time, "so much so that [one] can consider [it] part of the normal immune system."2 The virus attacks humans in two forms—"herpes [**3]  simplex virus type 1, which is the causative agent of oral infections, or conditions 'above the waist'; and herpes simplex virus type 2, which is the causative agent of genital infections, or symptoms 'below the waist.'"3 Mussivand  [*807]  v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265, 268 (Ohio 1989). "Both forms of the virus are life-long infections, and those infected often experience a primary episode and subsequent recurrences." Michele L. Mekel, Kiss and Tell: Making the Case for the Tortious Transmission of Herpes and Human Papillomavirus Deuschle v. Jobe, 66 Mo. L. Rev. 929, 932 (2001). Significant for a court's decision on whether or not to impose liability, "[m]ost individuals have no or only minimal signs or symptoms from infection," yet remain carriers. Matthew Seth Sarelson, Toward A More Balanced Treatment of the Negligent Transmission of Sexually Transmitted Diseases and AIDS, 12 Geo. Mason L. Rev. 481, 515 n.11 (2003).

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

189 So. 3d 805 *; 2015 Fla. App. LEXIS 4725 **; 40 Fla. L. Weekly D 779

MONICA LOPEZ, Appellant, v. JOHN B. CLARKE, Appellee.

Subsequent History: Rehearing, en banc, denied by Lopez v. Clarke, 2015 Fla. App. LEXIS 10234 (Fla. Dist. Ct. App. 4th Dist., June 25, 2015)

Prior History:  [**1] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502008CA028813XXXXMB.


herpes, virus, outbreak, genital, infected, fraudulent concealment, disease, urologist, transmissible, sexually, symptoms, testing, STDs, contracted, recurrent, battery, blood, sexual relations

Torts, Fraud & Misrepresentation, Actual Fraud, General Overview, Nondisclosure, Elements, Intentional Torts, Assault & Battery, Elements of Battery, Elements, Duty, Foreseeability of Harm, Standards of Care, Reasonable Care, Recognition of Risk