lawsuits 101

[bumblebee]

Hey Everyone - I noticed there are several threads with questions concerning legal options for contracting herpes. I thought it might be helpful to clarify a few things about lawsuits, specifically pertaining to herpes.

First, the legal option for contracting herpes is a civil lawsuit - not criminal. Civil and Criminal law are two separate systems and work in different ways. Civil law is what we think of when we hear that someone sued McDonalds for having too hot of coffee. Basically it is when one person wants to be compensated (usually by money) for the injury or damage caused by another person. Any person can find a lawyer and sue. Using herpes as an example, you would sue the person that gave herpes to you because they caused you harm. You want to be paid to compensate for getting herpes, which may include the medical bills, time away from work to see the doctor, and pain and suffering (compensatory damages) and if applicable money for the sake of punishing the wrongdoer for lying/deceiving/etc (called punitive damages - but can only be rewarded with compensatory damages). In order to win this type of lawsuit, it must be more likely than not that the person that gave you herpes has caused the harm (a legal standard called a 'preponderance of the evidence').

Criminal law, on the other hand, is when someone breaks a law. The prosecutor/District Attorney decides whether or not to press charges against the person that broke the law (you do not hire an attorney - unless you are the defendant and are defending yourself!). The penalties can be fines paid to the government or jailtime, depending on the crime. Furthermore, it is more difficult to win this case because guilt must be proven beyond a reasonable doubt (that means practically absolute certainty, rather than just 'more likely than not'). Yes, there could be criminal implications for someone that passes on herpes, but it is highly unlikely and depends on your state's laws on misrepresentation, and duty to inform.

Second, before you speak with an attorney, I think it is important to truly consider whether taking legal action is the best choice for you. Lawsuits are time consuming, emotionally exhausting, costly, and often inconvenient. And this may come as a surprise to most of you, but only 3% (or less) of tort cases go to trial; this is because most cases are dismissed, settled, etc. Perhaps the best way to know if suing is the right option for you is to ask someone who has been in a lawsuit before. They will probably tell you if the experience of going through a lawsuit is worth it.

People have sued and won. Here are some cases that you can search online for and read about:
Meany v. Meany, 639 So. 2d 229. (Louisiana) A woman sued her former husband for negligently transmitting herpes to her and won approx. $90,000.
Gonzalez v. Moffitt, 1999 U.S. App. LEXIS 6400 (Ohio) Court ruled in favor of plaintiff ex-wife in plaintiff's suit for negligence and intentional infliction of emotional distress, based upon exposure to a sexually transmitted disease.

Third, if you decide after careful consideration that a lawsuit is right for you, then you'll need to contact a personal injury lawyer. They will probably explain everything to you much better than I can - but here is the overall process in a lawsuit:
1) First your lawyer will draft a 'complaint' and it will be sent ('served') to who you are suing. The complaint will state briefly what happened, the injury caused, and the compensation wanted (usually money).
2) Once the person you are suing receives the complaint, they will have a limited amount of time to answer. Usually this means they will also hire an attorney. The 'answer' or 'response' will affirm, deny, or ask questions about what was said in the complaint. They could also allege something against you - that you knew about the herpes or that you are the one who had the herpes initially, etc. This is when the disagreement usually begins.
3) Once both you and the person being sued have made all the statements to tell their story (this is not evidence!!! it is just what each person is alleging) a judge will determine whether the case needs to continue
- if there is no dispute over the facts: (ex: both of you agree that you got herpes and she/he didn't tell you and he knew he had it, both agreed to the costs of damages) the judge can order a decision then and there.
-any issue that is NOT agreed upon will require more investigation, called "discovery"
4) Discovery is when both parties start to obtain evidence. This is when your attorney will put together the medical records, expert testimony from doctors, testimony by people that can support your case etc. In the American legal system, all the evidence can be seen by both parties - so you can see all the evidence the person you're suing has, and he/she can see all of your evidence. This is partly why so many cases never make it to trial: once everyone sees all the evidence from both sides, the outcome becomes more apparent, and rather than risk a jury* from coming up with some random decision, it is better to settle. But, this does not always happen. When evidence contradicts, then the jury* must decide.
5) Finally comes trial, which still has no guarantees. The jury* may decide that it wasn't his/her fault that you have herpes. Or they may think that it was their fault, but that it is only worthy of $10. Or maybe they will be so appalled and give you $200k. It really just depends. This is something you'll need to consider when deciding to sue: will all this hard work be worth $10? It is a risk you will take...
6) But it is still not over.... win or lose, there can be appeals - ex: something procedurally went wrong in the trial or the jury didn't obey instructions, etc.
*** But not all cases are resolved by a jury. More likely than not, a judge will make the final decision - a small claims court sort of deal (like judge judy). It depends on where you are suing and how much you are suing for, etc. ***

Most lawyers for personal injury work on a contigency fee basis: this means they do not charge you. Rather, if they win they will take a large percentage of the money won. The other option is to pay an attorney an hourly fee (and then keep your winnings), but if don't already know, paying a lawyer's hourly fee is VERY expensive and probably not a good option.

Anyway, that's a lawsuit in a nutshell. Just the basics, but hopefully this helps some of you decide what is best for you right now. If you have any questions, just let me know....

[tohealth]

Hey Everyone - I noticed there are several threads with questions concerning legal options for contracting herpes. I thought it might be helpful to clarify a few things about lawsuits, specifically pertaining to herpes. ....

Actually, we're not all strangers to lawsuits around here. Some have sued and several are in the midst of lawsuits. It has been a while since one attempted summarizing a legal area in one post like this however.

First, the legal option for contracting herpes is a civil lawsuit - not criminal. In order to win this type of lawsuit, it must be more likely than not that the person that gave you herpes has caused the harm (a legal standard called a 'preponderance of the evidence'). ....

I’d phrase it as, based on the evidence, it must be more likely that what you’re claiming is true rather than what the defendant is claiming is true.

Second, before you speak with an attorney, I think it is important to truly consider whether taking legal action is the best choice for you. ....

I disagree. There should be no hesitation at all to reach out to an attorney before you decide for certain to sue. Talking to an attorney is part of the process of figuring out any legal option. You cannot do that sitting alone in your kitchen. It doesn't have to cost much either. Moreover, the more attorneys you talk to the more you learn about your case’s strengths and weaknesses, your legal entitlements, and the different attorney’s strengths and weaknesses. You will notice how some attorneys aren’t afraid of certain facts in your case that stump another attorney; one attorney will have experience with particular judges that another one won’t; one will have better intuition about the defendant and their thresholds; one attorney will work 10 times faster than another one; one attorney will show more humanity or listen more; one will tell you your case is worth $5000 and the next will say it's worth $500,000. These things matter. They’re organic. They change how you view your case, your options and your life. It’s not just chit chat.

Lawsuits are time consuming, emotionally exhausting, costly, and often inconvenient. ....

I disagree. “Time consuming”? Civil herpes lawsuits are nowhere near as time consuming as an ordinary bad divorce. The only person spending time is the lawyer, and they are able to do that and manage a portfolio of other cases just fine. As a plaintiff, you have little to do timewise: Attend one deposition? 2 hours maybe? Answer the phone when your lawyer calls to give an update— maybe 15 minutes per call every other week? How is this time consuming? You don’t have to go to court (before trial). You rarely go to your lawyer’s office. As a plaintiff you are free to go on with your life just fine; you just happen to be a plaintiff. The lawyer is the one spending time, and a lot of that is spent waiting on other folks.
“Emotionally exhausting”? Civil herpes lawsuits are nowhere near as emotionally exhausting as an ordinary bad divorce.
As for “inconvenience”, learning your time-tables is inconvenient. Not learning them is more inconvenient. Some folks clearly suffer more if they don’t sue. It’s a personal decision.

And this may come as a surprise to most of you, but only 3% (or less) of tort cases go to trial; this is because most cases are dismissed, settled, etc. ....

First, you speak of all tort cases in your statistic, while the percentage of HSV cases within that group is astonishingly miniscule, so that statistic is non-applicable here.
2nd, why should one care how many cases go to trial anyway? It makes no difference to whether you pursue a case or not. Winning is not going to trial. Winning is getting what you want. If you and your lawyer can do that in a settlement, that is often BETTER than a trial. First off, it means your case was strong enough to make the defendant not risk losing big to you in court. Second, it means you get to vote on what you win rather than be at the full mercy of judge, jury and precedent. Settled cases are winning cases.

Perhaps the best way to know if suing is the right option for you is to ask someone who has been in a lawsuit before. They will probably tell you if the experience of going through a lawsuit is worth it. ....

Aha..that would be me…It was definitely worth it.

People have sued and won. Here are some cases that you can search online for and read about: Meany v. Meany, 639 So. 2d 229. (Louisiana) A woman sued her former husband for negligently transmitting herpes to her and won approx. $90,000. ....

Right, though that was $93,676 in pure compensatory damages in 1994. Using a consumer price index correction factor, that translates to $130,014.89 in 2007 dollars. Similarly, the award of $750,000 in Maharam v. Maharam in 1986 translates to $1.4 million in 2007 dollars (Maharam v. Maharam, 510 N.Y.S.2d 104). It’s important to interpret these outcomes in their present values.

Third, if you decide after careful consideration that a lawsuit is right for you, then you'll need to contact a personal injury lawyer. ....

This is often the challenging part—even more so than the case itself. Finding a competent attorney to take the case for which there is often thin if any precedent. People never stop asking how to find a good attorney.

[standard]

Bumblebee is a real person, that just happens to be a real, evil person.

Let's all go sue crazy!!!

[quincy]

I would think that it would be hard to prove it unless you never had sex before. How can you prove that you got from a specific person if it can lay dormant for years? How can you prove that they knew that they already had it? when so many dont know.

[tohealth]

I would think that it would be hard to prove it unless you never had sex before. How can you prove that you got from a specific person if it can lay dormant for years? How can you prove that they knew that they already had it? when so many dont know.

Clearly, you haven't read these threads. Maybe you should get acquainted with successful cases all over the US going back many decades that address all you're mentioning here. It's actually been discussed at great length.

You (and standard) can start with these:

Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993) (AIDS);
Berner v. Caldwell, 543 So. 2d at 686 (genital herpes);
Kathleen K. v. Robert B., 150 Cal. App. 3d 992 (1984) (genital herpes);
Long v. Adams, 333 S.E.2d 852 (Ga. Ct. App. 1985) (genital herpes);
Stopera v. DiMarco, 554 N.W.2d 379 (Mich. Ct. App. 1996) (HPV);
M.M.D. v. B.L.G., 467 N.W.2d 645 (Minn. Ct. App. 1991) (genital herpes);
Mussivand v. David , 544 N.E.2d 265 (Ohio 1988 ) (venereal disease);
Crowell v. Crowell, 105 S.E. 206 (N.C. 1920) (venereal disease);
DeVall v. Strunk, 96 S.W.2d 245 (Tex. Civ. App. 1936) (crab lice);
Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863 (1979) (gonorrhea).

In Meany v. Meany, 639 So. 2d 229 (La. 1994), the wife had recovered a judgment from the trial court against the husband for the negligent infliction of a venereal disease. The appellate court reversed, stating that the husband did not have actual or constructive knowledge that he was carrying the disease. The court noted that there was no evidence the husband had ever been infected with a venereal disease. He had been treated for a "drippage," but the record did not indicate that this was a symptom of genital herpes. Nor did the record reflect anything that would prove the husband had actual or constructive knowledge of a venereal disease.

The state supreme court overruled this decision, finding sufficient evidence for the jury to conclude that the husband was negligent. The court said a drippage, coupled with the fact that the husband had had sexual relations with five different women, was sufficient for the jury to impute knowledge of the disease to the husband.

As you can see, this is an example where there was not even "proof" that the person accused even had an STD or STI. They were still liable. The system worked wonderfully.

It didn't matter what he knew.
It didn't matter that HSV lays dormant.
It didn't matther that he didn't evidence outbreaks.
Bullshit doesn't matter.
Negligence does.

Meany v. Meany, 639 So. 2d 229 (La. 1994) (genital herpes)
Jury awarded $ 125,000.00 in damages to compensate Mrs. Meany for pain and suffering, mental anguish, permanent disability, medical expenses, and loss of society and enjoyment of life: “This record contained enough evidence from which a jury could reasonably conclude that Mr. Meany knew, should have known, or should have suspected that he was putting his wife at risk of venereal disease by sexual contact. … Nationwide, courts have traditionally imposed liability for communication of harmful…diseases… More recently, liability has been extended to the communication of sexually transmitted diseases.…It is clear that society's interest in protecting the public health, the severity of the risk that others would be infected with diseases such as tuberculosis, diphtheria, typhoid, or smallpox, and the highly contagious nature of the diseases justify the imposition of this burden on the diseased person.” --The Honorable Justice Calogero, Supreme Court of Louisiana.
http://biotech.law.lsu.edu/cases/STDs/Meany.htm

[quincy]

please dont put me in the same catagory as standard. i find him very offending. you are right, i haven't read all the threads. i am not at all saying that you should not sue. i would love to sue the person that gave this to me. i am pretty sure he knew he had it and never said anything. I was just windering how i could even prove that i got it from him. i know that he has it now. But how do i know that he knew when i was with him, how do i know that i didn't have it and it had been dormant for years? Just questions that i had.

[tohealth]

please dont put me in the same catagory as standard. i find him very offending. you are right, i haven't read all the threads. i am not at all saying that you should not sue. i would love to sue the person that gave this to me. i am pretty sure he knew he had it and never said anything. I was just windering how i could even prove that i got it from him. i know that he has it now. But how do i know that he knew when i was with him, how do i know that i didn't have it and it had been dormant for years? Just questions that i had.

Sorry to insult you with that categorization--I don't blame you. Totally sorry. I'll actually try and respond to your note later today.

[quincy]

Thank you. i also apologize I probally shouldn't respond to threads unless i am more educated on the topic. i guess i am just confused about the whole thing.i just didnt have any ob until 3 1/2 years later. Except for when they had done a pap smear around that time the results showed something consistent with hsv. They did a blood test that came back negtive, Well ayear after that i heard he had herpes. Being on educated i thought i was fine since i had the blood test. Well, now years later i have an ob. i wish i knew then what i know now. Sorry again.

[tohealth]

Thank you. i also apologize I probally shouldn't respond to threads unless i am more educated on the topic. i guess i am just confused about the whole thing.i just didnt have any ob until 3 1/2 years later. Except for when they had done a pap smear around that time the results showed something consistent with hsv. They did a blood test that came back negtive, Well ayear after that i heard he had herpes. Being on educated i thought i was fine since i had the blood test. Well, now years later i have an ob. i wish i knew then what i know now. Sorry again.

I don't expect people to read threads in full when they come to it; my concern was for the frequent person who comes to these threads full of desire to talk other people out of suing---other people who have often already decided to sue, as in, the decision is already made so shut the hell up, I'm grown, so respect my decision instead of trying to impose your own desire onto me to have me reverse my decision on something I'm legally entitled to do.

If people don't like lawsuits, fine: don't file one. But that has ZERO to do with whether I file or not.

The other issue we see here often is folks who know nothing about the law (which by itself isn't the problem) but who talk to people AS THOUGH they know. I mean some will flat out say "the law won't allow this" and "the court will do this" and "you'll have to prove this" and "you will need evidence of that" and they are DEAD WRONG about it ALL. They don't know any law, nevermind the applicable law; they don't even know the jurisdiction--often they are in a different country from the one in which the person they are "advising" resides, but they're talking like they actually know this other country's law, nevermind individual state law; they don't even know their own country's law. And it's all pretty ridiculous, because these are real people looking for real information and they have to hear all this crap.

That's really where my energy was directed...I wrongly intuited that you were aiming to point out all the reasons one should not be able to sue (to which I would say, why point those out without also pointing out the reasons they can sue, especially when that is what they are actually seeking to learn--people don't go online to learn how not to sue, rather they seek information for how to sue. If they don't want to sue, they can go to another thread...that's all).

[tohealth]

Oh quincy, and here's the other deal with your case:

In your case what you're saying is that you didn't have knowledge of your injury (infection with HSV) when it happened. This was 3+ years ago which is typically well after the Statute of Limitations runs in most jurisdictions (period up to when you can file a claim).

The question is when did your statute of limitations clock start ticking for you. I'm not sure. This depends on your state. For example, in California, apparently the clock starts not necesarily when the injury occurs, but when you have reason to suspect it has occurred (I just found this quickly illustrative--I see Minnesota may be your jurisdiction if that's where you were infected) Other states have some similar "extensions" or delayed tolling:

"The discovery rule provides that the limitations period commences when the plaintiff has or should reasonably have knowledge of the injury and its cause and a suspicion of wrongdoing. Suspicion is examined from an objective standpoint; the issue is what a reasonable person would know or suspect under the facts of your case."
http://consumerlawpage.com/article/sol-extended.shtml