Mcpherson v. Mcpherson

712 A.2d 1043 (1998)

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Nature of the Case

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Facts

H and W were married. H had an adulterous affair with Jane Doe. H contracted HPV from Doe and then transmitted the disease to W. W sued H for negligence, assault and battery, and negligent infliction of emotional distress in that H transmitted the disease prior to their divorce, through sexual intercourse. The court made the following factual findings: that H was the only sexual partner W has ever had; and that it was more likely than not that H infected W with HPV. The court noted that, even though H did not then exhibit evidence of the HPV infection, 'this is in no way proof that he is not now in a latent stage nor does it demonstrate or have any probative value as to whether or not he was a carrier' at the time he allegedly infected W. It found that H did not disclose his sexual relationship with Doe to W and that he took no steps to protect W from possible infection with a sexually transmitted disease. It found that H 'did not know or have reason to know' that he might have HPV at the time he infected W because he had no physical symptoms of HPV infection, he had no knowledge of any other partner having symptoms of HPV, and he had no medical diagnosis of any kind of a sexually transmitted disease. The court ruled against W in that no duty to be sexually faithful exists under Maine law, H was not liable for intentional infliction of emotional distress, and the intercourse between H and W was consensual and that H had no idea he was or might be infected. W appealed.