Doe Ex Rel. Smith v. Johnson

OPINION

. This case is before the Court on defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for a more definite statement under Rule 12(e). Additionally, defendant asks the Court to strike specified portions of the Complaint under Rule 12(f). Plaintiffs’ Complaint states eight causes of action against defendant. Although these claims are not identified by name in the Complaint, in their response to the defendant’s motions, plaintiffs state that the counts are as follows: (I) Negligence; (II) Breach of duty not to transmit HIV virus; (III) Battery; (IV) Fraud/Failure to warn (of HIV status); (V) Fraud/Failure to warn (of sexually active lifestyle); (VI) Strict liability; (VII) Loss of consortium (Infant Doe); and (VTII) inten *1385 tional infliction of emotional distress. Plaintiffs’ Brief at 2.

Defendant has moved for dismissal of six of these counts (I, III-VI, and VIII). Defendant asserts, for a number of reasons, that plaintiffs have failed to state a claim under Rule 12(b)(6) with respect to these counts. Alternatively, defendant argues that if this 001111; does not dismiss some or all of these counts, I should order plaintiffs to supply a more definite statement under Rule 12(e) because plaintiffs’ Complaint is unclear. Finally, if I rule against defendant on his Rule 12(b)(6) motion, defendant argues that the Court should strike all references in plaintiffs’ Complaint to the terms, “promiscuous,” “sexually active,” or “multiple partner” as used to describe defendant’s lifestyle. Defendant alleges that these references are not relevant to this lawsuit and should be stricken pursuant to Rule 12(f).

Facts

This case raises unique legal and policy issues, but has fairly straight forward facts. Plaintiff, Jane Doe, alleges that defendant, Earvin Johnson, Jr., wrongfully transmitted the human immunodeficiency virus (“HIV virus”) to her through consensual sexual contact. Ms. Doe alleges that the wrongful transmission of the HIV virus occurred on or about the evening of June 22, 1990, or the morning of June 23, 1990, or both, at her home in Ingham County, Michigan. Plaintiffs’ Complaint at 3-4. Ms. Doe and Mr. Johnson had “sexual contact” which allegedly led to the transmission of the HIV virus. Ms. Doe alleges that immediately prior to the encounter, she asked Mr. Johnson to use a condom. Mr. Johnson allegedly refused to do so. Nonetheless, Ms. Doe engaged in consensual sexual contact with Mr. Johnson. Id. at 4.

Prior to the evening of June 22, 1990 or morning of June 23, 1990, Ms. Doe claims that Mr. Johnson “was sexually active, having sexual contact and engaging in sexual intercourse with multiple partners.” Id. at 3. Thus, Ms. Doe claims that Mr. Johnson “knew or should have known” that he had a high risk of becoming infected with the HIV virus because of his “sexually active, promiscuous lifestyle.” Id. Accordingly, Ms. Doe argues that Mr. Johnson should have. (1) warned her about his past lifestyle; (2) informed her that he “may have HIV”; (3) informed her that he did in fact “have HIV”; (4) not engaged in sexual contact with her; or (5) used a condom or other method to protect her from the HIV virus.

As a result of this wrongful transmission, Ms. Doe states that she suffers, and will continue to suffer, many consequences including physical illness, severe emotional distress, loss of enjoyment of life, extreme embarrassment, humiliation, shame, medical expenses, and lost wages and benefits. Id. at 5. Moreover, Ms. Doe notes that she will eventually develop acquired immunodeficiency syndrome (“AIDS”) and “suffer a slow, certain, and painful death.” Id.

MOTION TO DISMISS Standard

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H. Elliot Co., Inc. v. Caribbean Utils. Co., 513 F.2d 1176, 1182 (6th Cir.1975). Technically, of course, the 12(b)(6) motion does not attack the merits of the case. It merely challenges the pleader’s failure to state a claim properly. 5A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (Supp.1990). In deciding a 12(b)(6) motion, the court must determine whether plaintiffs’ Complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the Complaint at “face value” and construe them in the light most favorable to plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984); Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir.1979).

The Complaint must in essence set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); German v. Killeen, 495 *1386 F.Supp. 822, 827 (E.D.Mich.1980). The court cannot dismiss plaintiffs’ Complaint unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Conclusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Vermillion Foam Prods. Co. v. Gen. Elec. Co., 386 F.Supp. 255 (E.D.Mich.1974).

DISCUSSION

Negligent Transmission (count I) Fraud— Failure to Warn of HIY status (count IV) Fraud — Failure to Warn of “Sexually Active Lifestyle” (count V)

In his motion to dismiss, defendant groups counts I, IV and V together for purposes of his first argument because he attacks each count on, essentially the same ground: that defendant must have had “knowledge” of his HIV-positive status in order to have a duty under negligence or fraud (failure to warn) theories.

Count I of the Complaint alleges that’ defendant negligently breached a legal duty he owed to plaintiff Jane Doe not to transmit the HIV virus to her because he knew or should have known that he had the HIV virus. In order to state a claim for a cause of action arising from a tortious injury in the state of Michigan, 1 such as that alleged by plaintiff Jane Doe in count I, a litigant must allege: (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) causation (proximate and causation in fact) between the breach of the duty and the injury; and (4) resultant damages. Lorencz v. Ford Motor, 439 Mich. 370, 375, 483 N.W.2d 844 (1992).

Defendant argues that count I of plaintiffs’ Complaint should be dismissed because he did not owe a legal duty to plaintiff Jane Doe. Generally, as is noted by the parties, in Michigan the “duty” or “standard of care” imposed on every person, in every situation, is that of a “reasonably prudent person.” Massey v. Scripter, 401 Mich. 385, 390, 258 N.W.2d 44 (1977); see also Clark v. Dolman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967) (a legal duty under negligence “imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.”) That is, a defendant must always do or refrain from doing what a reasonably prudent person would do or refrain from doing. Massey, 401 Mich, at 390, 258 N.W.2d 44. However, if the Court finds that a duty does not exist in a given situation, then, of course, a defendant has no obligation to act in accordance with the “reasonably prudent person” standard with respect to the alleged conduct by a plaintiff. The question whether a duty exists is a legal one for the court to decide. Moning v. Alfono, 400 Mich. 425, 436-37, 254 N.W.2d 759 (1977). 2 In Michigan, courts consider a number of factors to determine the existence of a legal duty. For instance, in Swartz v. Huffmaster Alarms, 145 Mich.App. 431, 434, 377 N.W.2d 393 (1985), the Michigan Court of Appeals stated: “The determination of whether a duty should be imposed upon a defendant is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant [to meet the duty], the likelihood of occurrence and the relationship between the parties.” See also Bondie v. Bic Corp., 739 F.Supp. 346, 348 (E.D.Mich.1990) (citing same factors); Lewin v. McCreight, 655 F.Supp. 282, 284 (E.D.Mich.1987) (same); Rodriguez v. Sportsmen’s Cong., 159 Mich. App. 265, 271, 406 N.W.2d 207 (1987) (same). *1387 Similarly, courts in other jurisdictions weigh a number of factors in determining whether a duty on the part of the defendant exists. These factors include:

(1) Foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant’s conduct and injury suffered; (4) moral blame attached to defendant’s conduct; (5) policy of preventing future harm; (6) extent of burden to defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for the breach; and (7) availability, costs, and prevalence of insurance for the risk involved.

Vu v. Singer, Co., 538 F.Supp. 26, 29 (N.D.Cal.1981), aff'd, 706 F.2d 1027 (9th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 350, 78 L.Ed.2d 315 (1983).

Additionally, as is somewhat obvious from these factors, courts often consider public policy implications in making a determination whether a legal duty exists in any given situation. See, e.g., Moore v. St. Joseph Nursing Home, Inc., 184 Mich.App. 766, 767-68, 459 N.W.2d 100 (1990) (“In attempting to determine whether a defendant owes an actionable duty to a plaintiff as a matter of law, it is necessary to assess competing policy considerations for and against recognizing the asserted duty.”); Marr v. Yousif, 167 Mich.App. 358, 361, 422 N.W.2d 4 (1988) (“courts must [ ] assess the competing public policy considerations for and against recognizing the asserted duty in any individual case.”). Finally, I note that a court can find that a duty arises “specifically by mandate of statute, or it may arise generally by operation of law under application of the- basic common law.” Clark, 379 Mich, at 261, 150 N.W.2d 755.

Count IV of the Complaint alleges that defendant committed fraud by failing to inform plaintiff Jane Doe that he was infected with the HIV virus (because he knew or should have known he had the HIV virus). Similarly, count V alleges that defendant committed fraud by failing to inform plaintiff Jane Doe that he lived a “promiscuous” and “sexually active” lifestyle that put him at risk for acquiring the HIV virus. To successfully state a claim for fraud under Michigan law, a plaintiff must allege that: (1) the defendant made a false material representation; (2) the defendant knew the representation was false, or made it recklessly without knowledge of its truth or falsity; (3) the defendant intended that the plaintiff rely upon the representation; (4) the plaintiff did, in fact, act in reliance upon the representation; and (5) the plaintiff was injured. McMullen v. Joldersma, 174 Mich.App. 207, 213, 435 N.W.2d 428 (1988). The first element of fraud may be satisfied by showing that the defendant had a duty to disclose facts, but suppressed them instead. Id. at 213, 435 N.W.2d 428; U.S.F. & G. v. Black, 412 Mich. 99, 125, 313 N.W.2d 77 (1981).

Defendant argues that counts IV and V of plaintiffs’ Complaint should be dismissed to the extent these counts are not based on defendant’s actual knowledge of infection, or symptoms of the disease. More specifically, defendant asserts that he did not have a duty to make disclosures about his past “sexual[ly] active” lifestyle that “put him at high risk” to contract the HIV virus.

Thus, the common denominator in defendant’s first argument addressing counts I, IV and V is that he did not owe a duty to plaintiff Jane Doe. Specifically, Mr. Johnson argues that he cannot be held liable (did not have a “duty”) under these counts unless he actually “knew that he was infected with the HIV virus.” Defendant’s Brief at 6. In his Reply Brief, however, defendant enhances his potential duty by arguing that he had a duty to plaintiff Jane Doe on these theories if she can show that (1) he “knew he was infected (with the HIV virus) or (2) knew he had symptoms (of the HIV virus).” Defendant’s Reply Brief at 1 & 3. Thus, defendant apparently concedes that actual knowledge of the disease is not absolutely necessary to have a “duty” to plaintiff Jane Doe for wrongful transmission of the HIV virus.under negligence or fraud theories.

Plaintiffs, on the other hand, argue that they have stated a valid claim for transmission of the HIV virus under both negligence and fraud theories because either Mr. Johnson knew or “should have known” that he was infected with the HIV virus. According *1388 ly, since he allegedly knew or should have known that he was infected with the virus, he had a duty to refrain from having unprotected sexual relations with Ms. Doe. While not directly addressing the knowledge issue (e.g., at what level of “knowledge” does a duty “kick in”), plaintiffs appear to suggest that because defendant was “sexually active,” “promiscuous” and engaged in sexual contact “with multiple partners,” he “should have known” that he carried (or likely carried) the HIV virus. Thus, plaintiffs argue that the level of knowledge required in order to have a legal duty to another person is quite low— if one engages in “high risk” behavior, 3 such as engaging in a great deal of unprotected sex with multiple partners, then that individual has sufficient knowledge that s/he may have the HIV virus. Accordingly, in such a case, plaintiffs argue that the potential tort-feasor has a duty under the law of negligence to act as a “reasonably prudent person under the circumstances” and presumably to not engage in unprotected sexual relations, or at least warn a potential partner of the possibility that s/he may have the HIV virus.

As stated above, courts consider many factors in making a determination whether defendant has a duty to plaintiff for purposes of negligence. I believe that a court can make similar considerations when deciding whether a defendant has a duty to disclose facts about himself or herself under a fraud claim. Cf. Zaschak v. Traverse Corp., 123 Mich.App. 126, 129, 333 N.W.2d 191 (in order to state a claim for fraud, plaintiff must “set forth facts [in the Complaint] supporting the allegation that [defendant] had a duty to disclose ... ”). In this case, the most difficult issue for purposes of this motion to dismiss is foreseeability of harm to plaintiff Jane Doe. 4 That is: (1) did defendant foresee the harm to plaintiff Jane Doe; (2) could he foresee the harm; (3) should he have foreseen the harm to plaintiff Jane Doe; (4) what should defendant be required to have foreseen? The difficulty in phrasing the issue illustrates the uniqueness of this case.

Nonetheless, no matter how the issue is phrased, the Court believes that the key inquiry in this case is: at what level of knowledge of the HIV virus should a defendant foresee potential harm to a plaintiff such that s/he acquires a duty to act as a “reasonably prudent person,” as well as to disclose his/her knowledge of the HIV virus to that plaintiff. Certainly, levels of knowledge of the HIV virus are wide-ranging. For example:

1) A defendant knows s/he has the HIV virus because s/he has been affirmatively diagnosed by a medical professional as having the disease;

2) A defendant knows that s/he has the HIV virus because s/he has specific knowledge of any particular fact, such as:

a) The defendant has experienced symptoms related to the HIV virus; or,

b) The defendant has come in contact with an individual, or several individuals, who have been diagnosed as having the HIV virus and defendant has engaged in conduct with such persons which results in a likelihood (or even a possibility) that s/he could have the disease because of such conduct;

3) A defendant has engaged in “high risk” conduct which may result in exposure to the HIV virus, such as a great deal of unprotected sexual contact with multiple partners; unprotected anal intercourse with multiple partners; shared needles with many individuals while using intravenous drugs; or, several blood transfusions.

4) A defendant has engaged in conduct which may result in exposure to the HIV virus, such as unprotected sexual rela *1389 tions with one partner (who had unprotected sexual relations with at least one other person).

Thus, the Court must determine at what level of knowledge a defendant owes a legal duty to a plaintiff such that negligence and fraud causes of action can be maintained. Several courts and commentators have addressed this issue — all coming to slightly different conclusions. At the outset, I must note that it is clear to this Court causes of action based on negligent transmission of an infectious disease, as well as failure to disclose a disease (fraud) are cognizable under the law. Earle v. Kuklo, 26 N.J.Super. 471, 98 A.2d 107 (1953) (tuberculosis); Kliegel v. Aitken, 94 Wis. 432, 69 N.W. 67 (1896) (typhoid fever); Smith v. Baker, 20 F. 709 (S.D.N.Y.1884) (whooping cough); Gilbert v. Hoffman, 66 Iowa 205, 23 N.W. 632 (1885) (smallpox); Franklin v. Butcher, 144 Mo. App. 660, 129 S.W. 428 (1910) (smallpox); Hendricks v. Butcher, 144 Mo.App. 671, 129 S.W. 431 (1910) (smallpox).

Moreover, it is clear to the Court that a plaintiff may maintain-negligence and fraud claims based on wrongful transmission of venereal diseases, including genital herpes. State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (venereal disease); Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920) (venereal disease); Kathleen K v. Robert B., 198 Cal. Rptr. 273, 150 Cal.App.3d 992 (1984) (herpes); Long v. Adams, 175 Ga.App. 538, 333 S.E.2d 852 (1985) (herpes). Because there is very little law on the issue of transmission of the HIV virus, I will have to rely, in part, on the cases that address the transmission of other diseases, as well as seemingly unrelated areas of law, such as property law. I will make reference to these other areas of law because of shared legal principles such as foreseeability or duty to warn. Any reference to such diverse areas of law is in no way meant to minimize the dramatic issues associated with the HIV virus.

Additionally, as the parties note, because the question of tort liability for the transmission of sexually communicable disease is one of first impression in the state of Michigan, I will rely on decisions from courts in other states.

Both parties agree that a defendant’s actual' knowledge- that s/he is infected with an infectious disease is sufficient to establish a duty for purposes of negligence and fraud. A number of courts across the country have also reached this conclusion. Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265 (1988); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175, 1179 (1988); R.A.P. v. B.J.P., 428 N.W.2d 103, 105-06 (Minn.Ct.App.1988); Maharam v. Maharam, 123 A.D.2d 165, 510 N.Y.S.2d 104 (1986); Long v. Adams, 175 Ga.App. 538, 333 S.E.2d 852 (1985).

Additionally, at least one court has held that where a defendant had knowledge of symptoms of an infectious disease, he was under a duty to warn the plaintiff of his symptoms — and the possibility that he may have the sexually transmitted disease. M.M.D. v. B.L.G., 467 N.W.2d 645 (Minn.Ct.App.1991). In M.M.D., the defendant contended that he did not know that he had herpes. Accordingly, defendant argued that he did not have a duty to inform plaintiff of the possibility that he may have herpes. Defendant conceded, however, that he did have recurring genital sores prior to and during the time when he engaged in sexual contact with plaintiff.' Id. at 646. Moreover, defendant acknowledged thát a medical professional informed him that a herpes culture (to determine whether he was infected) “may be” advisable. Id. The Minnesota Court of Appeals found that defendant did have a duty to disclose to plaintiff the possibility that he may have been infected with herpes despite his lack of actual knowledge of this fact. Id. In so holding, the court stated:

Knowledge of facts giving rise to a duty may be imputed. Perception and experience bear on whether a person will be charged with knowledge. A key factor courts consider in determining whether a legal duty exists is whether the potential injury was a reasonably foreseeable consequence of the defendant’s actions.

Id. (citations omitted). 5

Moreover, at least one court has indicated, in dicta, that a defendant may be under a *1390 duty to warn a plaintiff of the possibility that s/he may be infected with a sexually transmitted disease if s/he has knowledge that a prior sexual partner is infected with the HIV virus. See C.A.U. v. R.L., 438 N.W.2d 441, 443 (Minn.Ct.App.1989). In C.A.U., defendant had engaged in homosexual activity pri- or to his acquaintance with plaintiff. There was no evidence (or allegations) that the defendant had any knowledge that a former sexual partner of his had been diagnosed with the HIV virus. The Minnesota Court of Appeals held that defendant did not have a duty to warn plaintiff of his HIV positive status. See supra note 5 (discussion of the holding of C.A.U.). , However, the court noted:

[T]he supreme court [of Minnesota] re- • stated the following standard for determining whether a duty exists: If the connection is too remote to impose liability as a matter of public policy, the courts then hold there is no duty, and consequently no liability. On the other hand, if the consequence is direct and is the type of occurrence that was or should have been reasonably foreseeable, the courts then hold as a matter of law a duty exists. It is well established that an essential element in determining whether a legal duty exists is the actor’s actual or imputed knowledge of the facts. The supreme court has found that “perception, memory, and experience” bear on whether a person is charged unth knowledge.

Id. at 443 (citations omitted) (emphasis added).

As defendant points out, the court in C.A. U. seems to suggest that the defendant’s “perception, memory and experience” in assessing the imputation of knowledge suggests that in the context of the HIV virus, knowledge that a prior sexual partner is infected with the virus may be notice of HIV exposure equivalent to symptoms. Accordingly, such knowledge may be sufficient to trigger a duty to take steps to prevent transmission of the disease to others. See also M.M.D., 467 N.W.2d at 646.

Finally, the parties have not cited, nor have I been able to find, any ease in which a court held that a defendant’s knowledge that s/he engaged in “high risk” activity (which increases the risk of becoming infected with a sexually transmitted disease) or knowledge that s/he was a member of a high risk group (individuals who are at a higher risk for being carriers of a sexually transmitted disease), without moré,, creates a duty that requires a defendant to inform a plaintiff that s/he engaged in such high risk activity or is a member of a high risk group. 6 “High risk” activity as it relates to the HIV virus has been generally defined as, “unprotected anal sex; unprotected vaginal sex; unprotected oral/genital and oral/anal sex; unprotected *1391 sex with many partners; having sex while drunk or high; sharing needles and/or works when injecting any kind of drug.” Wellness Networks, Inc., Information on HIV/AIDS (1991).

Similarly, persons with an increased risk of AIDS infection (“high risk groups”) include: (1) homosexual and bisexuai men; (2) present or past IV drug abusers; (3) persons with clinical 'or laboratory evidence of infection, such as those with signs or symptoms compatible with AIDS or AIDS-related complex (ARC); (4) persons born in countries where heterosexual intercourse is thought to play a major role in transmission; (5) male or fe.male prostitutes and their sex partners; (6) sex partners of infected persons or persons at increased risk; (7) all persons with hemophilia who have received clotting-factor products; and (8) newborn infants of high-risk or infected mothers. Richard Carl Schoenstein, Note, Standards of Conduct, Multiple Defendants, and Full Recovery in Tort Liability for the Transmission of Human Immunodeficiency Virus, 18 Hofstra L.Revi 37, 46 n. 44 (1989) (hereinafter “Standards of Conduct ”) (quoting Public Health Serv., Dep’t of Health and Human Servs., AIDS: Recommendations and Guidelines; November 1982-De-cember 1987, at 13 (1988)).

I note, however, that at least one commentator has argued that individuals who are members of high risk groups or who have engaged in high risk activity should be under a legal obligation (duty) to inform potential sex partners of their high risk status. See generally Standards of Conduct at 58-63. Also,' at least one commentator has argued that an individual’s high risk activity should be relevant to determination of that person’s legal duty to others with respect to sexual contact. See David P. Brigham, Note, You Never Told Me ... You Never Asked: Tort Liability for the Sexual Transmission of AIDS, 91 Dick.L.Rev. 529, 546-47 (1986).

Decision as to Counts I, TV & V

For the most part, the parties seem to agree that claims for negligent and fraudulent transmission of the HIV virus can be maintained to the extent that a defendant (1) knew s/he was infected with the HIV virus; (2) knew s/he was suffering symptoms associated with the HIV virus; or (3) knew of a prior sex partner who was diagnosed as having. the HIV virus. After reviewing a large number of well-reasoned opinions from other jurisdictions, a number of law review articles and other commentaries, as well as general principles of Michigan tort law (all detailed above), I am inclined to agree with the parties. As stated above, under Michigan law, courts generally use the following test to determine the existence of a “legal duty”: (1) a balancing of the societal interest involved; (2) the severity of the risk; (3) the burden upon the defendant [to meet, the duty]; (4) the likelihood of occurrence; and, (5) the relationship between the parties. Swartz v. Huffmaster Alarms, 145 Mich.App. 431, 434, 377 N.W.2d 393 (1985). A number of considerations arise when balancing these factors in the context of sexual transmission of the HIV virus. For instance:

Societal Interest

There are two competing societal interests here. First, as defendant points out, recognition of a duty to warn in certain contexts necessarily invades the constitutionally protected privacy rights of individuals in their sexual' practices and in marriage, by requiring people to disclose prior sexual history to every potential sex partner. I am sensitive to this argument. Certainly, court supervision of the promises made by, and other activities engaged in, two consenting adults concerning the circumstances of their private sexual conduct is very close to an unwarranted intrusion into their right to privacy. See, e.g., Stephen K v. Roni L, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, 620 (1980). Nonetheless, the right of privacy is not absolute, and it, “does not insulate a person from all judicial inquiry into his/her sexual relations, especially where one sexual partner, who by intentionally tortious conduct, causes physical injury to the other.” Barbara A. v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr. 422, 430 (Cal.Ct.App.1983).

Of course, the other competing societal interest is the prevention of the transmission of infectious disease, as well as the *1392 interest of future plaintiffs in not becoming infected with the disease. As is well known, at this point in history there is no cure for the HIV virus. Moreover, as far as I am aware, the HIV virus often (if not always) leads to AIDS — and ultimately death. See Standards of Conduct at 43-49. Thus, society certainly has a strong interest in preventing the spread of this disease.

Severity of Risk

As I just discussed, the risk associated with this tort — transmission of the HIV virus — is very high. Death is often the consequence of this disease. This fact certainly distinguishes the HIV virus and AIDS from other sexually transmitted diseases, such as herpes.

Burden of Defendant

The Court believes that, for the most part, the burden on defendant in this case is not very high. As is pointed out by plaintiffs, if.Mr. Johnson (1) had actual knowledge that he was HIV-positive, (2) knew he was suffering symptoms of the HIV virus, or (3) knew of a prior sex partner who was diagnosed with the HIV virus, all he needed to say to Ms. Doe was, “I have the HIV virus” or “I may have the HIV virus.” In light of the iisk associated with this disease, it is not much to ask a potential defendant to utter these few words. 7 On the other hand, recognizing human nature, it is often difficult at intimate moments to bring up potentially embarrassing facts about oneself. Nonetheless, in the case of the HIV virus, it can be a matter of life and death.

With respect to “burden,” defendant argues that the recognition of a duty on defendants in the context of transmission of the HIV virus could have the effect of robbing the defendants of all (or most) of their financial resources in order to pay legal fees, at a time when they need those resources the most in order to combat the disease, because they too are infected with the HIV virus.

Additionally, HIV positive individuals and AIDS patients have been greatly discriminated against — and stigmatized — by our society. In recognition of this fact, a number of states have enacted HIV and AIDS confidentiality statutes which makes it a crime to reveal an individual’s HIV-positive/AIDS status. E.g., Mich.Comp. Laws Ann. § 333.5131 (West 1992). While these statutes are often controversial, for purposes of this discussion, I note that imposition of a duty on a defendant that requires s/he to reveal HIV virus and/or AIDS information about themselves raises confidentiality issues.

Likelihood of Occurrence

Studies vary as to the likelihood of transmission of the HIV virus, due in part to the fact that researchers are learning more about this disease every day. 8 Overall, given the alleged facts of this case (one consensual sexual encounter), it appears that the likelihood of transmission of this disease is not very large. The World Health Organization estimates the proba