COA2014Judges_web.jpg

Presiding judge Erin Lagesen, Judge Rick Haselton and Judge pro tempore Janice Wilson upheld a $900,000 verdict in an Oregon Court of Appeals ruling Wednesday. Pictured here is the entire appeals court.

(Oregon Judicial Department)

A Southeast Portland man ordered to pay $900,000 to a Beaverton divorcee for infecting her with genital herpes lost his appeal Wednesday.

And in upholding the lower court's decision, the Oregon Court of Appeals, for the first time in state history, issued a defacto warning to all Oregonians on the issue:

If you have an STD and engage in unprotected sex without first warning your partner, you could end up paying -- big time.

In the case before the appeals court, the retired dentist, then 69, had met the 49-year-old woman on the dating website eHarmony in 2010.

The dentist took issue with Multnomah County Circuit Judge David Rees' decision to allow jurors to decide whether he intentionally infected the woman during the only time they had sex.

After a four-day trial, jurors deliberated two hours before deciding that he had acted both intentionally and negligently by having sex without a condom -- and without first telling her that he'd been diagnosed in 1991 with herpes.

He had argued there wasn't enough evidence to prove he intended to give the woman herpes. The Oregon Court of Appeals disagreed -- and the jury's verdict stands.

Both the woman and the man were identified by pseudonyms in the lawsuit. Attorneys who tried and researched the case said it was the first time a lawsuit about one person suing another for intentionally transmitting herpes went to trial in Oregon. The disease is sexually transmitted, incurable and infects roughly one in six Americans.

During the May 2012 trial, the woman testified that the retired dentist had seemed well-educated, charming, kind and like husband-material. On the fourth date -- an evening that included hors d'oeuvres, wine and a few puffs of pot -- the two had sex on May 25, 2010.

Less than two weeks later, she suffered a severe herpes outbreak -- including overwhelming pain, difficulty urinating and trouble walking, she said. The woman's Portland attorney, Randall Vogt, said his client had received a clean bill of health several months earlier in January 2010.

The woman testified that she had asked her date to wear a condom and he said OK, but the next thing she knew he wasn't wearing a condom and it was too late. Afterward, as they were lying in bed, he was oddly quiet and she sensed something was wrong. She said that's when he broke the news to her: He had herpes. She kicked him out of her house -- then immediately sought medical treatment.

Her outbreaks, she said, were repeated and painful. She took anti-viral medication, but it caused large amounts of her hair to fall out. She suffered from anxiety and depression, and the drugs she took for that caused her weight to balloon by 30 pounds.

Jurors awarded the woman $900,000 -- almost every dollar she was asking for.

The jury determined that the man was 75 percent negligent, and that the woman carried 25 percent of the blame. Two jurors, however, dissented, believing the man was entirely at fault.

Jurors also found that the retired dentist committed "battery" by intentionally engaging in an activity that hurt the woman. And that's the part of the case that he appealed.

But the appeals court upheld the judge's decision to allow jurors to decide the question of battery.

Specifically, the appeals court ruled that a reasonable juror could determine that the man knew the woman wouldn't consent to unprotected sex if he had informed her that he had an STD.

"To reiterate: Defendant -- a medical professional who had lived with the social and health consequences of genital herpes for 20 years -- knew that plaintiff was unaware of that condition; nevertheless, even when it became clear that he and plaintiff were going to engage in sexual contact, he did not disclose his condition," the court's opinion stated.

"Further, even after plaintiff had expressly told defendant to use a condom and defendant had said that he would do so, he unilaterally proceeded to initiate unprotected sex," the opinion continued. "Given the parties' medical training and other circumstances, the jury could reasonably infer that defendant understood that plaintiff sought protection against exposure to (sexually transmitted diseases) but proceeded in intentional disregard of her directive."

The appeals court ruling was made by a three-judge panel: Presiding Judge Erin Lagesen, Chief Judge Rick Haselton and Judge pro tempore Janice Wilson.

-- Aimee Green

503-913-4197