A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between Negligence and the Transmission of HPV

• Author: Timothy J. Hasken
• Position: J.D. Candidate, The University of Iowa College of Law, 2010; B.S., Truman State University, 2007
• Pages: 01

J.D. Candidate, The University of Iowa College of Law, 2010; B.S., Truman State University, 2007. I would like to thank my parents, Dan and Janet, and my wife, Kellie, for their loving support of my educational endeavors.

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I Introduction

On August 1, 2008, a jury in Muscatine County, Iowa, held Alan Evans liable for negligently transmitting the human papillomavirus ("HPV") to Karly Rossiter.¹ The jury awarded Rossiter $1.5 million, including $700,000 in compensatory damages and an additional $800,000 in punitive damages.²Evans and Rossiter had a sexual encounter on January 1, 2005.³ Before the encounter, Evans volunteered to Rossiter that he did not have any sexually transmitted infections ("STIs").⁴ Shortly after their sexual encounter, Evans encouraged Rossiter to get tested for HPV, and in April 2005, Rossiter discovered she had some cell abnormalities that are often associated with HPV.⁵ Subsequently, Rossiter developed genital warts, and in January 2006, she was diagnosed with severe cell abnormality caused by certain high-risk HPV strains.⁶ It was later discovered that within six months prior to Rossiter's sexual encounter with Evans, Evans had a sexual encounter with another woman who experienced symptoms similar to Rossiter's.⁷

A brief description of the background of Evans and Rossiter's relationship provides a basic factual situation to guide this Note. However, the specific details concerning Evans and Rossiter's relationship is superfluous to this Note because the question of whether an individual should be liable for negligently transmitting HPV must be analyzed in a far broader framework than one specific factual situation. Nonetheless, Evans and Rossiter's basic story reoccurs throughout the country: approximately twenty million Americans are currently infected with an active strain of HPV,⁸ and each recurrence embraces a different twist on similar facts.⁹

Adding to the importance of this issue is that the negligent transmission of HPV would be a matter of first impression in all but one state.¹⁰ For Page 988 example, Iowa appellate courts have never considered a case involving the negligent transmission of STIs. In fact, Iowa appellate courts have not even considered issues surrounding the negligent transmission of communicable diseases since the turn of the nineteenth century.¹¹

This Note argues that courts must be cautious in applying negligence principles to HPV transmission because unlike other infections and STIs, HPV has characteristics that are difficult to reconcile with fundamental negligence principles. Part II traces the common-law evolution of the cause of action for the negligent transmission of STIs. This background provides a historical context that illustrates the principle elements of negligence-duty, reasonable care, and causation-as applied to the transmission of diseases. Part III details the characteristics of HPV and demonstrates how these characteristics differ from other common STIs.

Part IV argues that HPV's unique characteristics make its transmission difficult to reconcile with notions of duty and causation. Part IV analyzes an individual's duty to prevent the spread of HPV in the context of actual knowledge and constructive knowledge, and how the development of the HPV vaccine affects an individual's duty into the future. The Note then examines the factual obstacles plaintiffs face when attempting to establish causation for the negligent transmission of HPV. Finally, the Note briefly addresses damages resulting from the negligent transmission of HPV.

II Evolution Of The Cause Of Action

A The Common-Law Development ofthe Cause of Action

While it is unsettled when or if a cause of action exists for negligently transmitting HPV, courts have long recognized a cause of action for negligently transmitting contagious diseases.¹² In 1873, the Massachusetts Supreme Court, in one of the earliest reported cases on this issue, held a landlord liable to his tenants under a failure-to-warn theory for their contraction of smallpox.¹³ Shortly after this case, other courts began Page 989 recognizing a cause of action for the negligent transmission of smallpox and other highly contagious diseases.¹⁴

In 1885, the Iowa Supreme Court established a cause of action for the negligent transmission of smallpox.¹⁵ In Gilbert v. Hoffman, a hotel operator was aware that a current guest had been removed from the hotel's premises because he was actively infected with smallpox.¹⁶ The operator then assured the plaintiff that none of the hotel's guests had smallpox and that the hotel was sanitary and posed no risk of contracting the disease.¹⁷ When the plaintiff subsequently contracted smallpox, the court held the hotel operator liable under a failure-to-warn theory.¹⁸

Over time, courts broadened the scope of the cause of action for negligently transmitting diseases to include those transmitted sexually.¹⁹Decided in 1920, Crowell v. Crowell²⁰ was one of the earliest cases to establish a cause of action for the negligent transmission of a venereal disease.²¹ In Crowell, a husband who had admitted infidelity was held liable for infecting his wife with "a vile and loathsome disease."²² While Crowell helped establish the cause of action, it took courts several more decades to clarify when a person owes a duty to a sexual partner and what level of care that duty requires.²³ Page 990

In 1989, the Alabama Supreme Court, in Berner v. Caldwell, annunciated that "a cause of action for the tortious transmittal of herpes . . . exists under the law of Alabama."²⁴ Additionally, the court stated that a person has "a duty to either abstain from sexual contact . . . or at least, to warn" his or her sexual partner when the person "knows, or should know that he or she is infected."²⁵ Most courts considering the issue agree with Berner that a person's knowledge of an STI imposes a duty of care on that person.²⁶However, many state courts, such as the Iowa appellate courts, have not yet considered this issue. While states are developing a consensus that a person who "knows, or should know" of his STI has a duty of care to his partners, case law is still developing the level of knowledge required to trigger this duty, the level of care required by such knowledge, and the scope of STIs to which this duty applies.

B Modern Courts ' Development of Knowledge and Reasonable Care

Determining what level of knowledge is required to trigger a duty of reasonable care is a complex question. Certainly, diagnosis from medical professionals and medical treatment or prescription of drugs creates sufficient knowledge.²⁷ The presence of open genital sores or other overt physical characteristics, such as drippage or rashes, also trigger a duty of reasonable care.²⁸ One court has held that a person has a duty of reasonable care if he or she has actual knowledge that a prior sexual partner has been diagnosed with AIDS.²⁹ However, some courts have declined to impose a duty on a person merely because of that person's infidelity or promiscuity, reasoning that such activity does not ensure adequate knowledge.³⁰ Page 991 Ultimately, "[t]he level of knowledge required to trigger the duty to avoid exposing others to the disease is dependent upon the particular facts involved in each case."³¹

Once courts determine an individual owes a duty of reasonable care, the courts must then determine what type of conduct breaches that duty. Berner suggests that persons must abstain from sexual encounters or "at least . . . warn" their partners about their condition.³² Many courts have adopted similar definitions of reasonable care.³³ In addition, some courts have suggested that using appropriate protection, such as condoms, also constitutes reasonable care.³⁴ Furthermore, a person's requisite standard of care does not decrease merely because his infection is not currently active.³⁵

The final question concerning the negligent transmission of an STI is how broad a scope this cause of action should have-does it extend to all STIs or just some? Most courts have used broad language holding that the cause of action extends to "sexually transmitted" or "venereal" infections.³⁶However, most modern appellate courts considering the negligent transmission of STIs have dealt exclusively with herpes or AIDS,³⁷ and no appellate court has held a person infected with HPV liable for negligently transmitting the infection to another.³⁸ Page 992

McPherson v. McPherson is the only appellate case to consider the negligent transmission of HPV.³⁹ In McPherson, the Maine Supreme Court held that a husband who infected his wife with HPV was not liable for negligently transmitting the infection.⁴⁰ The court first considered whether a cause of action for the wife's injuries existed, concluding:

We can conceive of no principled reason to distinguish the consequence suffered here by Nancy [the plaintiff-wife], infection with a disease, from any other physical harm that could befall a person because of the negligence of another, and for which we would recognize a cause of action in negligence.⁴¹

After establishing the cause of action, the court held that the husband had no duty to his wife, relying on the trial court's fact-finding that the husband...