Kimball v. Hower

KATHLEEN KIMBALL, Plaintiff, v. JOHN HOWER, JR., Defendant.

1:12-cv-00076-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Dated: August 21, 2013

ORDER ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

After the affair, Kathleen Kimball discovered she was infected with Herpes Simplex Viruses 1 (HSV-1) and 2 (HSV 2). Claiming her former lover, John Hower, Jr., M.D., was the source of the infections, she filed suit against him for negligence and the negligent infliction of emotional distress (NIED). Dr. Hower moves for summary judgment on both claims. The Court first concludes that because Dr. Hower does not have HSV-1, he was not the source of her HSV-1 infection. Next, because Ms. Kimball generated genuine issues of material fact as to whether Dr. Hower was the source of her HSV-2 infection and as to whether infecting another with a sexually transmitted disease constitutes an injury if the infected person is asymptomatic, the Court denies summary judgment on that part of her claim. Finally, though it may have been special to them at the time, a sexual relationship between consenting adults is not a special relationship within the narrow confines of the tort of NIED and the Court grants Dr. Hower's motion for summary judgment on Count Two, the NIED count.

I. BACKGROUND

A. Procedural History

On February 7, 2010, Kathleen Kimball filed a two-count complaint against John Hower, Jr., M.D. in Maine Superior Court alleging negligent infliction of physical harm and negligent infliction of emotional distress (NIED). Compl. (ECF No. 1-3). Dr. Hower removed this case to federal court on March 6, 2012. Notice of Removal (ECF No. 1). On March 22, 2013, Dr. Hower filed a motion for summary judgment, Def.'s Mot. for Summ. J. (ECF No. 37-1) (Def.'s Mot.), and a statement of material facts in support of his motion, Def.'s Statement of Material Facts (ECF No. 37-2) (DSMF). Ms. Kimball responded to Dr. Hower's motion on April 13, 2013. Pl.'s Resp. to Def.'s Mot. for Summ. J. (ECF No. 44) (Pl.'s Opp'n). On April 15, 2013, she filed a response to Dr. Hower's statement of facts and a statement of additional material facts. Pl.'s Opposing Statement of Facts (ECF No. 46) (PRDSMF & PSAMF). Dr. Hower responded to Ms. Kimball's opposition, Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. (ECF No. 49) (Def.'s Reply), and filed a response to Ms. Kimball's statement of additional material facts on April 30, 2013, Def.'s Reply to Statement of Material Facts (ECF No. 50) (DRPSAMF).

B. Statement of Facts¹

1. The Parties' Romantic Relationship

Kathleen Kimball and John Hower, Jr. met in December 2000; they started a sexual relationship in April or May 2001. DSMF ¶ 1; PRDSMF ¶ 1. When theparties met, Ms. Kimball was a forty-six year old Patient Account Manager for Maine General Health Associates. DSMF ¶ 2; PRDSMF ¶ 2. She had been a widow since 1999, after having been married with a child for twenty-two years.² DSMF ¶ 2; PRDSMF ¶ 2.

When Dr. Hower first met Ms. Kimball, he was a fifty-six year old doctor practicing vascular surgery.³ DSMF ¶ 3; PRDSMF ¶ 3. Dr. Hower was in the process of his third divorce, which was finalized in June 2001; however, Ms. Kimball understood when they met that he was already divorced. DSMF ¶ 3; PRDSMF ¶ 3. The parties maintained an intimate relationship until the latter part of 2008, and they continued to have a non-sexual relationship until they resumed a sexual relationship in 2010.⁴ DSMF ¶¶ 4, 8; PRDSMF ¶¶ 4, 8. The parties did not have any sexual relations between the end of 2008 and March 2010 due in part to Dr. Hower's health issues.⁵ DSMF ¶ 5; PRDSMF ¶ 5.

During their relationship, the parties got along very well and there was no fighting out loud or animosity; however, Ms. Kimball considers Dr. Hower to have a volatile temper and was scared by it at times.⁶ PSAMF ¶¶ 10, 66; DRPSAMF ¶¶ 10, 66. Sometimes Dr. Hower got loud and spoke angrily toward Ms. Kimball or at other people in her presence. PRDSMF ¶ 10. There was no domestic violence in the parties' relationship, but on one occasion, Dr. Hower slammed a drawer shut in anger barely missing Ms. Kimball's fingers.⁷ DSMF ¶ 11; PRDSMF ¶ 11.

2. The Parties' Breakup and Continued Sexual Contact

On February 5, 2010, Dr. Hower informed Ms. Kimball that he had fallen out of love with her. DSMF ¶ 6; PRDSMF ¶ 6. On or about February 27, 2010, Ms. Kimball learned that Dr. Hower had recently started a sexual relationship with another woman, T.M. DSMF ¶ 7; PRDSMF ¶ 7. Ms. Kimball said she would leave, but Dr. Hower told Ms. Kimball he was not going to see T.M. anymore and asked Ms. Kimball to stay in the relationship, so she did. PSAMF ¶ 68; DRPSAMF ¶ 68.

Sexual activity occurred between the parties within one week of Ms. Kimball's learning about Dr. Hower's affair and continued sporadically until December 31, 2010; their personal relationship continued until March 28, 2011.⁸DSMF ¶ 8; PRDSMF ¶ 8. During their sexual relationship, Ms. Kimball and Dr. Hower did not use condoms when they had sexual intercourse. DSMF ¶ 9; PRDSMF ¶ 9. Ms. Kimball asked Dr. Hower about using condoms two or three times and he said that he was not worried about someone getting pregnant at her age; she accepted his judgment.⁹ PRDSMF ¶ 9.

3. Ms. Kimball's Positive HSV Test Results

On February 14, 2011, during a routine doctor's appointment, Ms. Kimball had a blood test for the presence of certain viruses, including HSV-1 and HSV-2. DSMF ¶ 12; PRDSMF ¶ 12. Her blood test results confirmed she was positive for HSV-1 and HSV-2. DSMF ¶ 13; PRDSMF ¶ 13. Ms. Kimball never had HSV testing before her February 14, 2011 blood test. DSMF ¶ 14; PRDSMF ¶ 14. She has never had any symptoms associated with genital or oral herpes. DSMF ¶ 17; PRDSMF ¶ 17. Ms. Kimball is also unaware of any HSV testing on her latehusband, David, before his death in 1999. DSMF ¶ 15; PRDSMF ¶ 15. The results of her HSV blood test form the sole basis for Ms. Kimball's Complaint of contracting sexually transmitted diseases (STDs) due to Dr. Hower's negligence.¹⁰ DSMF ¶ 16; PRDSMF ¶ 16.

4. Dr. Hower's Positive HSV-2 and Negative HSV-1 Test Results

On October 16, 2012, Dr. Hower underwent court-ordered blood testing. DSMF ¶ 22; PRDSMF ¶ 22. His test results revealed that he was positive for HSV-2 but negative for HSV-1.¹¹ DSMF ¶ 22; PRDSMF ¶ 22. Before that test, Dr. Hower stated that he never had blood testing to detect the presence of HSV-1 or HSV-2; however, in an e-mail to Ms. Kimball on February 21, 2011, Dr. Hower stated "I know that I am positive for HSV I."¹² DSMF ¶ 23; PRDSMF ¶ 23. Allblood testing for STDs and STD-related viruses Dr. Hower had before October 16, 2012 was required by his employers and insurers and all were negative.¹³ DSMF ¶ 24; PRDSMF ¶ 24.

Dr. Hower has never had any symptoms associated with genital herpes. DSMF ¶ 18; PRDSMF ¶ 18. He had what his mother described to him as "fever blisters" on his lip three or four times as a child and possibly during his teen years, but none since. DSMF ¶ 19; PRDSMF ¶ 19. Other than learning of Ms. Kimball's positive HSV blood tests in 2011, Dr. Hower was never made aware that any of his prior sexual partners had genital or oral herpes or that they were positive for HSV-1 or HSV-2.¹⁴ DSMF ¶ 20; PRDSMF ¶ 20. He also never saw any symptoms of genital or oral herpes on any of his prior sexual partners. DSMF ¶ 21; PRDSMF ¶ 21.

5. HSV-1 and HSV-2

a. Dr. Ann Lemire

Ms. Kimball designated Dr. Ann Lemire to testify "as an expert on transmission, treatment and prevention of STDs . . . ." DSMF ¶ 25; PRDSMF ¶ 25.Dr. Lemire is the medical director for the largest STD clinic in Maine at the Public Health Division India Street Clinic in Portland. DSMF ¶ 26; PRDSMF ¶ 26.

b. Infection and Symptoms Associated with Outbreaks

Genital herpes is ordinarily caused through genital to genital contact by HSV-2, although one third of genital herpes is caused by HSV-1 through oral to genital contact.¹⁵ DSMF ¶ 27; PRDSMF ¶ 27. Oral herpes (i.e. herpes of the mouth) is ordinarily caused by HSV-1.¹⁶ DSMF ¶ 28; PRDSMF ¶ 28. If a person has blood testing showing antibodies for HSV-1 and HSV-2 but has never had any associated outbreaks, that person does not have genital or oral herpes, yet that asymptomatic person who has nevertheless been infected with the HSV virus,harbors the virus for life, could have outbreaks at any time, and will forever be capable of transmitting the virus even while asymptomatic.¹⁷ DSMF ¶ 36; PRDSMF ¶ 36.

Symptoms associated with both genital and oral herpes are painful outbreaks of tiny blisters known as vesicles. DSMF ¶ 29; PRDSMF ¶ 29. Other symptoms, which usually precede vesicular outbreaks, are sensitivity, tingling, and/or pain in the area of the outbreak. DSMF ¶ 29; PRDSMF ¶ 29. Neither genital nor oral herpes causes non-blistering symptoms such as the common rash. DSMF ¶ 30; PRDSMF ¶ 30. With oral herpes, outbreaks appear on the lip similar to the common cold sore. DSMF ¶ 31; PRDSMF ¶ 31. With genital herpes, outbreaks appear on or near the genitals. DSMF ¶ 32; PRDSMF ¶ 32.

When a person has had external symptoms of herpes, the disease is referred to by the "site" of the outbreak as either herpes genitalis (genital herpes) or herpes labialis (oral herpes); however, infection of HSV-1 or HSV-2 without symptoms is not considered a "disease."¹⁸ PSAMF ¶ 44; DRPSAMF ¶ 44. HSV is treatable buthas no cure and there is no treatment for the infection alone.¹⁹ PSAMF ¶ 45; DRPSAMF ¶ 45.

c. Transmission and Prevention

HSV-1 infections are usually spread from non-sexual contact during childhood. DSMF ¶ 34; PRDSMF ¶ 34. It is generally accepted that most people are going to be infected with HSV-1 during their lifetime. DSMF ¶ 35; PRDSMF ¶ 35. In fact, the majority of people in the United States population—between sixty and ninety percent—is seropositive for HSV-1. DSMF ¶ 33; PRDSMF ¶ 33. Other than avoiding oral or genital contact with another person's active cold sore, there are...