Iowa Court of Appeals allows $1.5 million HPV transmission case to stand

A Muscatine County dentist is liable for $1.5 million for negligent transmission of sexually transmitted disease, the Iowa Court of Appeals ruled Wednesday. The case, which was decided by jury in the summer of 2008, is believed to be one the largest verdicts of its kind.

In the appeal, Dr. Alan Evans argued that there was insufficient evidence that he knew or should have known that he had human papillomavirus (HPV) or bacterial vaginitis, and that due to his lack of knowledge he had no duty to warn his sexual partner, Karly Rossiter. Evans also held that there was insufficient evidence to prove that he was the source of Rossiter’s dysplasia (abnormal cervical cells). Finally, he questioned his right to a new trial after the jury had determined that Rossiter’s claims of battery, assault and fraudulent misrepresentation were unfounded and still awarded $800,000 in punitive damages.

The court relied on an earlier Madison County negligence case that was heard before the Iowa Supreme Court, Thompson v. Kaczinski, to state that “an actionable claim of negligence requires the existence of a duty to conform to a standard of conduct to protect others.”

“We do not read Evans brief to suggest there is no duty to exercise reasonable care not to transmit a communicable disease. Such a duty is clearly found in Iowa law,” wrote Judge Amanda Potterfield in the decision.

Whether or not Evans actually knew he carried HPV and genital warts was irrelevant, according to the originating trial court, which concluded that he should have known.

“We agree,” wrote Potterfield. “From the evidence presented at trial, viewed in the light most favorable to the verdict, a rational juror could find Evans represented to Rossiter that he was disease-free and monogamous. … We conclude substantial evidence supports the jury’s findings.”

The court also ruled that because counsel for Evans did not object to jury instructions or provide specific grounds for objection his claims that the punitive damages awarded by the jury stand.

In determining reprehensibility, the court considers a number of factors including whether the harm caused was physical as opposed to economic, the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others, the conduct involved repeated actions or was an isolated incident, and the harm was the result of intentional malice, trickery, or deceit, or mere accident. Id. On our de novo review of the record, we find all of these factors were established in the evidence. The harm caused was not only physical, it concerns the most intimate and private interests, including sexuality and childbearing. Evans‟s conduct demonstrated a reckless disregard for Rossiter‟s health and safety. Evans is a dentist. He has received medical training and should be aware of the risks associated with communicable diseases. Yet, Evans engaged in numerous sexual acts with Rossiter, repeatedly exposing her to genital warts, HPV, and bacterial vaginitis. The harm was not a result of mere accident. … [T]he amount of the punitive damages reflects the jurors’ determination that conduct like Evans’s should be deterred in an amount greater than the actual damages caused.

Evans and Rossiter began a sexual relationship shortly after her first appointment at his dental office. The two discussed sexually transmitted diseases prior to becoming intimate, according to court records, and Evans claimed to be “clean.” Rossiter testified that after their first encounter, Evans phoned and suggested she should get tested for HPV. Upon testing, she was diagnosed with the virus, and was later diagnosed with dysplasia for which she underwent a surgical procedure. Rossiter also testified that Evans had bumps on his genitalia that was consistent with genital warts, a condition for which she was later diagnosed and treated along with bacterial vaginitis.

Dr. Gregory Brotzman, who was called as an expert witness on behalf of Rossiter, acknowledged during his testimony that there is no federally approved test to determine if a male carries HPV. He also stated, however, that “the most common way for someone to know they have HPV is if they have genital warts,” and indicated that it was more likely than not that Evans had transmitted potentially cancer-causing HPV and genital warts to Rossiter.

Evans has denied ever having genital warts, HPV or bacterial vaginitis, and denied being exposed to them. He did admit during trial, however, that at the time he began a relationship with Rossiter that he was also seeing two other women, one of whom eventually birthed his child. His expert witness, Dr. Kenneth Nayor, testified that unless one of the partners (Evans or Rossiter) was a virgin, that it was impossible to say whether or not one had infected the other. He indicated that it was “very unlikely that Evans transmitted an HPV infection” to Rossiter.

The jury ultimately awarded Rossiter $700,000 for damages — $50,000 for past physical pain and suffering, $150,000 for past mental pain and suffering and $500,000 for future mental pain and suffering. They also awarded Rossiter $800,000 in punitive damages.

Counsel for Evans has not yet indicated if they will seek further appeal of the case.