          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                MONICA LOPEZ,
                                  Appellant,

                                        v.

                               JOHN B. CLARKE,
                                  Appellee.

                                 No. 4D12-3859

                                  [April 1, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Glenn     D.   Kelley,    Judge;   L.T.    Case    No.
502008CA028813XXXXMB.

   Roy Wasson and Erin Pogue Newell of Wasson & Associates, Chartered,
Miami, Law Office of David A. Hagen, P.A., Miami, and Thomas J. Gruseck,
Palm Beach Gardens, for appellant.

   Benjamin L. Bedard and Laura E. Bedard of Roberts, Reynolds, Bedard
& Tuzzio, PLLC, West Palm Beach, for appellee.

GROSS, J.

   The trial below was a tale of two former lovers—Monica Lopez and John
Clarke—regarding who infected the other with the genital herpes virus.
Both denied having the virus prior to their relationship. Both said they
were faithful to each other. Both suffered genital herpes outbreaks—Lopez
in February, 2005 and Clarke a few months later. Lopez sued Clarke and
the case went to trial on claims of battery, negligence, and fraudulent
concealment. The jury resolved the case in favor of Lopez, but only on the
fraudulent concealment claim and for just $12,500.1
   We reverse the judgment based on fraudulent concealment. Such fraud
must be based on the tortfeasor’s actual knowledge that he harbors a
disease. Here, there could be no actual knowledge because Clarke secured
a clean blood test from a physician a week prior to starting his relationship


1   In closing argument, Lopez asked the jury to award $2,239,640.
with Lopez. We also affirm the judgment on the defense verdicts for battery
and negligence.
                                     The Trial
   The trial was an ordeal. Both parties were forced to divulge intimate
details about their sex lives, medical visits, and genital ailments. At its
core, the jury was tasked with resolving three disputes. First, whether
Clarke was, in fact, infected with the herpes virus prior to engaging in
sexual intercourse with Lopez. Second, whether Clarke knew of his
infection when he had intercourse with Lopez, yet failed to issue a warning.
And, finally, whether Clarke’s failure to disclose resulted in Lopez
contracting the herpes virus. The case was close on each of these issues.
    The trial was a battle of the experts, making a basic understanding of
the herpes virus crucial to evaluating the facts. As one expert explained,
herpes is an “ancient virus[ ] that ha[s] evolved with” humans over time,
“so much so that [one] can consider [it] part of the normal immune
system.”2 The virus attacks humans in two forms—“herpes simplex virus
type 1, which is the causative agent of oral infections, or conditions ‘above
the waist’; and herpes simplex virus type 2, which is the causative agent
of genital infections, or symptoms ‘below the waist.’”3 Mussivand v. David,
544 N.E.2d 265, 268 (Ohio 1989). “Both forms of the virus are life-long
infections, and those infected often experience a primary episode and
subsequent recurrences.” Michele L. Mekel, Kiss and Tell: Making the
Case for the Tortious Transmission of Herpes and Human Papillomavirus
Deuschle v. Jobe, 66 Mo. L. Rev. 929, 932 (2001). Significant for a court’s
decision on whether or not to impose liability, “[m]ost individuals have no
or only minimal signs or symptoms from infection,” yet remain carriers.
Matthew Seth Sarelson, Toward A More Balanced Treatment of the
Negligent Transmission of Sexually Transmitted Diseases and AIDS, 12
Geo. Mason L. Rev. 481, 515 n.11 (2003).
   Transmission of herpes occurs “through contact with lesions, mucosal
surfaces, genital secretions, or oral secretions” during periods when the
carrier is “shedding” the virus. Ctrs. For Disease Control & Prevention,
GenitalHerpes–CDCFactSheet, http://www.cdc.gov/std/herpes/STDFact-
Herpes-detailed.htm (last visited February 18, 2015). The virus’s type 2
variant—popularly known as genital herpes—is commonly “spread
through sexual intercourse.” Mussivand, 544 N.E.2d at 268. Once
contracted, the virus takes several days to weeks to manifest—if it does at

2Although  we have cited law reviews and journals, the scientific information in
this opinion was divulged at trial through the expert testimony.
3As   demonstrated in this case, one can have herpes simplex type 2 oral infections.

                                         -2-
all—as a primary herpetic outbreak, which is typically accompanied by
“one or more vesicles on or around the genitals, rectum or mouth,” along
with symptoms of “fever, body aches, swollen lymph nodes, and
headache.” Ctrs. For Disease Control & Prevention, supra. Thereafter,
infected persons may experience subsequent recurrent outbreaks, which
“tend to be milder than the initial occurrence,” although the “frequency
and severity of the recurrent episodes vary greatly.” Mekel, at 933.
    Pertinent to this case, two methods for detecting the herpes virus
include viral cultures and blood testing. The culture method involves
taking samples from suspected herpes outbreak locations, such as lesions,
to evaluate the virus’s presence. While a positive reading is definitive, a
negative reading does not necessarily negate the possibility of infection.
This is due to the virus’s nature—it travels through the infected person’s
nervous system, occasionally revealing itself through outbreaks. Although
specific outbreak locations are treatable, the overall virus is not. Thus,
culture samples recovered days after the outbreak may test negative,
despite a continued herpes infection, because the virus is no longer active
in the previously infected region.
   Blood testing, on the other hand, concerns the antibodies produced by
the body to combat the virus. During a primary outbreak, the body creates
IgM antibodies to function like first responders addressing an emergency.
Thereafter, the body adjusts by producing IgG antibodies to suppress the
virus, which remain elevated through the remainder of the infected
person’s life. If blood is drawn during a primary outbreak, it can result
positive for IgM antibodies but not necessarily for IgG. Likewise, blood
drawn during a recurrent outbreak—or during no outbreak at all—may be
positive for IgG but not IgM. The choice of test, therefore, is crucial.
                            The Plaintiff’s Case
   Before 2000, Lopez came to the United States on a student visa, where
she eventually fell in love with a fellow non-U.S. citizen. Over the years,
the two resided together, engaged in unprotected sex, and intended to
marry. However, they parted ways in late 2004. At trial, Lopez’s partner
confirmed that he did not have herpes.
   Following the breakup, Lopez attended a singles party at a local doctor’s
home, where she met Clarke. They immediately hit it off and began seeing
each other nearly every day. In February 2005, Lopez moved into Clarke’s
home. Concerned about some pills she observed during the moving
process and some wire transfer receipts, Lopez asked Clarke whether he
was engaged in other relationships or had sexually transmissible diseases
(STDs). Clarke assured her that his prior partners were “clean” and that
he regularly got tested for STDs, which had returned negative. This latter

                                    -3-
representation was consistent with test results Lopez found in Clarke’s
car, confirming that he had recently tested negative for numerous STDs,
including genital herpes.
   With concerns alleviated, the couple began to engage in sexual
relations.
   On February 17, 2005, Lopez sustained injuries after being involved in
a serious car accident. Four to five days later, she went to the emergency
room complaining of difficulty urinating and vaginal swelling.          As
confirmed by a culture test, Lopez’s gynecologist believed her symptoms to
be consistent with a primary genital herpes outbreak. The doctor
instructed Lopez to temporarily stop having sex and prescribed Zovirax
ointment and Valtrex pills to alleviate her symptoms.
    Lopez confronted Clarke about her predicament. He told her to go home
and take medication. The couple continued having sexual relations. The
following month, Lopez developed herpes outbreaks in other locations on
her body. It took three months for her various outbreaks to subside. Since
contracting herpes, she has suffered approximately six recurrent genital
herpes outbreaks each year, with each outbreak lasting about five to six
days.
                          The Defendant’s Case
   Clarke’s former wife contracted genital herpes in the early 1990’s. The
couple continued having unprotected sex on the belief he would not
contract the virus while she was not having outbreaks.
   A year after divorcing, on November 8, 1999, Clarke met with his
urologist who took smears from a lesion to perform a culture, which tested
negative for the herpes virus. The doctor further ordered an IgG test on
the belief Clarke may have been previously exposed to the virus given his
relationship with the former wife; that test came up positive for herpes
type 1, but negative for herpes type 2.
   Over the ensuing years, Clarke visited his dermatologist for genital
ailments. The dermatologist testified at trial he never observed signs of
genital herpes.
   On February 3, 2005, before commencing sexual relations with Lopez,
Clarke returned to the urologist on account of his recurring prostatitis.
While there, he decided to get tested for STDs, including the herpes virus.
In so doing, the doctor administered an IgM test, which resulted negative
for herpes type 2. Given the test results and lack of symptoms, the
urologist determined—and continued to believe at trial—that Clarke did
not have herpes type 2 at the time of the visit.

                                   -4-
   It was not until July 2005 that Clarke reported his first herpetic
outbreak, a different reaction from his prior ailments. Knowing how the
virus worked, Clarke used some of Lopez’s Famvir to alleviate the attack
before scheduling appointments with his urologist and dermatologist.
When Clarke met with his urologist in August, his genital lesions had
subsided. As a result of the meeting, the urologist performed blood testing,
which returned positive for herpes type 2.
                             Expert Testimony
   The expert testimony centered upon whether Clarke contracted the
virus prior to meeting Lopez. Clarke’s urologist and dermatologist both
confirmed their beliefs that he had not exhibited symptoms of the herpes
type 2 virus prior to February, 2005. To corroborate this view, Clarke
presented a specialist in the diagnosis and treatment of infectious
diseases, who testified that Clarke had contracted genital herpes in July
2005, since his symptoms were “consistent with a primary herpetic
outbreak” and his prior testing had shown an absence for the type 2 virus.
In the specialist’s opinion, it was possible Lopez was already infected and
suffered a stress-induced recurrent herpes outbreak in February 2005 as
a result of the car accident.
    Lopez’s experts focused on the reliability of the urologist’s testing
decisions. A virus researcher from California testified that in 1999—at the
time of Clarke’s positive IgG test—blood tests were unreliable for
accurately differentiating between type 1 and type 2 herpes. Thus, he
opined that the urologist’s 1999 IgG test did not rule out the potential of
a type 2 infection. Piggybacking upon this sentiment, an Ob-Gyn criticized
the urologist at trial for administering an IgM examination rather than an
IgG test in February 2005, since such a test would only return positive if
Clarke was experiencing an outbreak, even if he was a carrier. The Ob-
Gyn testified that if he were in the urologist’s shoes, he would have told
Clarke in 1999 that he had tested positive for herpes, but that the test
could not definitively differentiate between the type 1 or type 2 variant and
that he should exercise caution when engaging in sexual relations with
others. The Ob-Gyn believed that Clarke had genital herpes prior to
February 2005.
                                The Verdict
   The jury returned a verdict in favor of Lopez on her fraudulent
concealment claim, but for Clarke on her claims of negligence and battery.
For damages, the jury awarded a total of $12,500—$2,500 for past medical
expenses, $5,000 for past pain and suffering, and $5,000 for future pain
and suffering.


                                    -5-
A Directed Verdict Should Have Been Entered in Favor of Clarke on
                the Fraudulent Concealment Claim
   We first address Clarke’s argument on the cross-appeal that judgment
should have been entered in his favor on the fraudulent concealment
claim. Because the undisputed evidence demonstrated that Clarke lacked
the intent required for fraudulent concealment, he was entitled to a
directed verdict on the fraudulent concealment claim.
   We reject Clarke’s assertion that fraud is not a proper vehicle for
asserting a claim involving the transmission of a sexually transmissible
disease. The overwhelming majority of states have permitted plaintiffs in
tortious transmission of STD cases to pursue recovery based on
misrepresentation and fraud. See, e.g., B.N. v. K.K., 538 A.2d 1175, 1182-
84 (Md. 1988); R.A.P. v. B.J.P., 428 N.W.2d 103, 108-09 (Minn. Ct. App.
1988); Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 276-77 (Cal Ct. App.
1984); Dubovsky v. Dubovsky, 725 N.Y.S.2d 832, 836-37 (N.Y. Sup. Ct.
2001); Smith v. Walker, 11 Pa. D. & C.4th 663, 665 (Pa. Ct. Com. Pl. 1991).
Florida has inferentially permitted the claim; in Hogan v. Tavzel, 660 So.
2d 350, 352 (Fla. 5th DCA 1995), the fifth district held that a count for
fraudulent concealment of an STD (genital warts) was not barred by
interspousal immunity. Although Gabriel v. Tripp, 576 So. 2d 404, 404
(Fla. 2d DCA 1991), affirmed the dismissal of a fraudulent concealment
claim involving genital herpes, it did so without discussion of how the
fraud claim was pled, so its weight as authority on this issue is minimal.
    As an intentional tort, fraudulent concealment requires that a
defendant act with a knowing state of mind that is absent in this case.
The tort of fraudulent concealment of a sexually transmissible disease
requires that a defendant with knowledge of his medical condition
intentionally fail to disclose to the plaintiff that he carries the disease. Cf.
Kitchen v. Long, 64 So. 429, 430 (Fla. 1914) (holding that fraudulent
concealment would lie where the seller of a mule, knowing of a hidden
defect in a mule, “intentionally concealed” the defect from the buyer);
Nessim v. DeLoache, 384 So. 2d 1341, 1344 (Fla. 3d DCA 1980).
   An action for fraudulent concealment of a sexually transmissible
disease is almost indistinguishable from Lopez’s battery cause of action.
To prove a battery, Lopez was required to establish that Clarke had genital
herpes, that he knew he had it, and that he fraudulently concealed the
existence of the disease or misrepresented that he did not have it. Hogan,
660 So. 2d at 352-53. Both causes of action turned on Clarke’s knowledge
that he was infected with the disease. Before starting his sexual
relationship with Lopez, in the very same month, Clarke consulted a
urologist, was tested, and obtained what he reasonably believed was a


                                      -6-
clean bill of health. As a matter of law, he lacked the requisite state of
mind for both fraudulent concealment and battery.4
   Finally, we affirm the judgment on the defense verdict on the negligence
claim. Even applying the standard set forth in Kohl v. Kohl, 149 So. 3d
127 (Fla. 4th DCA 2014), Clarke’s February visit to the urologist and the
testing that was done would preclude Lopez from establishing that he had
constructive knowledge that he carried the disease. Negligence law
imposes liability where a defendant has actual or constructive knowledge
that he is infected with an STD. Id. at 135-36. Constructive knowledge
typically arises from the “existence of obvious symptoms.” Id. at 136. One
purpose of negligence law in this area is to encourage people to react to
their symptoms and seek medical treatment. Where a person has sought
medical treatment and obtained a clean bill of health, the imposition of
negligence liability is not appropriate.
   Reversed and remanded for the entry of a judgment for the defendant.

CONNER and KLINGENSMITH, JJ., concur.

                              *         *          *

   Not final until disposition of timely filed motion for rehearing.




4We  note that the trial court’s instruction on fraudulent concealment improperly
expanded the tort of fraudulent concealment of a sexually transmissible disease.
The court instructed the jury that one element of the tort was that Clarke made
a false statement concerning a material fact relating to genital herpes. This
instruction would have made Clarke 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. In this type of
case, the umbrella of the intentional tort of fraudulent concealment is narrow; it
requires both a defendant’s knowledge that he has contracted a sexually
transmissible disease and the intentional act of failing to disclose it to a sexual
partner. The tort does not open the door to liability for concealing more general
facts about dating history.

                                       -7-
