In B.F. v. Accurate Dental Group, No. A-6369-08 (App. Div. Aug. 26, 2011), the plaintiff and the individual defendant started dating in February 2003. They ended their relationship in July 2003, but then started again in February 2004 after the defendant hired the plaintiff to work as an assistant in his dental practice. According to the plaintiff, before she initially had sexual relations with the defendant he showed her a laboratory report that he explained showed that he did not have any sexually transmitted diseases (“STD”). However, those tests did not account for the possibility that the defendant had been exposed to chlamydia or human papillomavirus (“HPV”). Throughout their relationship the parties had unprotected sex. In addition, the defendant had unprotected sex with other women while dating the plaintiff. In her complaint, the plaintiff alleged that the defendant transmitted chlamydia and HPV to her. The plaintiff asserted various negligence claims, as well as claim for wrongful discharge pursuant to New Jersey’s Law Against Discrimination (“LAD”).
After the parties stopped dating in July 2003, the plaintiff briefly dated two other men. She testified that she did not have sexual intercourse with them but did engage in other sexual activities. However, the defendant’s expert testified that the plaintiff had told him that she had sexual intercourse with one of the men even though he had erectile dysfunction disorder. The Appellate Division explained that although the medical testimony and circumstantial evidence was somewhat equivocal, it did support a “reasonable inference that the greater likelihood was that she contracted chlamydia and HPV from defendant. In other words, a jury could reasonably find, by a preponderance of the evidence, that defendant, not the other two individuals plaintiff briefly dated, was the source of these infections.”
The plaintiff discovered in May 2004 that she had those infections. She informed the defendant about them and he stated that had once dated a woman with HPV. Upon being told by plaintiff that she had the infection, defendant began treatment for chlamydia and the parties eventually stopped dating. They also began to have workplace difficulties based upon their personal issues and, from the defendant’s point of view, the plaintiff’s job performance. The defendant fired the plaintiff on July 9, 2004 – shortly after she decided to stop dating him – but he claimed that his decision to fire her was based on her poor work performance. The plaintiff testified that after the parties broke up they had sexual relations one more time, and she claimed that as a result of that she was re-infected with chlamydia. Defendant denied that charge and claimed that they did not have sexual relations after he fired the plaintiff. He also claimed that the plaintiff had re-infected him – or that his medication was ineffective – because in 2004 he and his new wife contracted chlamydia.
The jury found the defendant liable on various negligence theories and on the LAD claim, though it also assessed the plaintiff 20% comparative fault on her negligence claims. The trial court entered judgment in plaintiff’s favor in the amount of $26,000 and awarded attorneys’ fees of $64,846.25. The Appellate Division affirmed.
First, the Appellate Division rejected defendant’s argument that he should have been granted summary judgment. The Appellate Division explained that New Jersey recognizes a claim for the negligent transmission of HIV or venereal diseases and that the evidence supported the jury’s verdict. Next, the Appellate Division addressed the defendant’s argument that the trial court erred in denying his motion for leave to file a defamation counterclaim. The defendant claimed that the plaintiff defamed him in 2004 when she wrote to others to tell them that the defendant had infected her. However, the defendant did not find out about those allegedly defamatory statements until 2007, which was after the one-year defamation statute of limitations – which begins to run on the date of the publication of the alleged libel or slander – had expired. The Appellate Division held that, based on well-established New Jersey Supreme Court precedent, the discovery rule did not apply in defamation actions and his counterclaim was time-barred.
Lastly, the Appellate Division considered the defendant’s challenge to the trial court’s award of attorneys’ fees. The appellate court recounted that the plaintiff had requested $101,182.50 under the lodestar method, which the trial court reduced to reflect hours devoted to abandoned causes. The trial court also reduced an associate’s hourly rate. The Appellate Division found that the trial court’s rulings were proper and supported by the record. In conclusion, the Appellate Division declared that “[w]e discern no reversible error in the trial court’s rulings, nor is there any manifest injustice in the jury’s findings of liability or in the modest compensatory damages that were awarded.”