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Monica Lopez v. John B. Clarke, Case No. 4D12-3859 (4th DCA)

In Lopez, the plaintiff sued for battery, negligence and fraudulent concealment based on the transmission of genital herpes. The jury found in favor of the plaintiff on the fraudulent concealment claim only, and awarded just $12,500, despite the plaintiff’s counsel’s request for over $2 million in closing. On appeal, the Fourth District reversed the judgment as to the fraudulent concealment claim, finding that such fraud must be based on the tortfeasor’s actual knowledge that he harbors a disease.

The Fourth District found that the defendant should have been granted a direct verdict because the undisputed evidence demonstrated that he lacked the intent required for fraudulent concealment. As an intentional tort, fraudulent concealment requires that a defendant act with a knowing state of mind. The tort of fraudulent concealment of a sexually transmissible disease requires that a defendant with knowledge of his medical condition intentionally failed to disclose to the plaintiff that he carries the disease. The Fourth District found that the plaintiff’s battery claim was almost indistinguishable from the fraudulent concealment claim. Both claims turned on the defendant’s knowledge that he was infected with the disease. The Fourth District noted that the evidence showed that before he started his relationship with the plaintiff, that very same month, the defendant consulted a urologist, was tested, and obtained what he reasonably believed was a clean bill of health. Therefore, as a matter of law, he lacked the requisite state of mind for both fraudulent concealment and battery. The Fourth District additionally found that when a person sought medical treatment and obtained a clean bill of health, the imposition of negligence liability is not appropriate.

Lastly, the Fourth District noted that that trial court incorrectly instructed the jury that one element of fraudulent concealment was that defendant made a false statement concerning a material fact relating to genital herpes. This instruction would have made the defendant liable for making false statements about the medical condition of his first wife, or risky, promiscuous dating behaviors, factors that increase the risk that a person could contract genital herpes. The Fourth District stated that in this type of case, the umbrella of the intentional tort of fraudulent concealment is narrow – it covers the failure to disclose that the person has contracted the disease. The Fourth District ruled that the tort does not open the door to liability for concealing more general facts about dating history.

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