In this blog Cary B. Cheifetz, Esq. a partner at Ceconi & Cheifetz, L.L.C. in Summit, New Jersey, USA considers whether and how to bring a tortious claim during divorce proceedings if your client has contracted a sexually transmitted disease from their former partner. This cause of action is a relatively new one in New Jersey, USA and, as such, no substantial body of consistent case law has yet developed.
Representing a client in a divorce matter is all the more complex when the client alleges that he or she has contracted a sexually transmitted disease (STD) from a spouse. Often the client, in addition to suffering the physical pain associated with the disease, feels physically violated and emotionally betrayed. In these circumstances, representation will require both careful navigation of a sensitive subject and an aggressive stance against the cheating spouse.
In 2014, the incidence of three nationally reported STDs, namely chlamydia, gonorrhea, and syphilis, was on the rise. In the United States, more than 1.1 million people are HIV positive, 19 million are infected with an STD each year, and approximately one in five have an STD of some kind.
The abolition of interspousal immunity permitted aggrieved spouses to litigate all claims in a divorce case. The abolition also created the prospect of a two-front war—the divorce itself and a suit for damages. In addition to litigating the underlying divorce, when one party has intentionally or negligently transmitted an STD to the other, the wronged party also may now sue the cheating spouse for monetary damages. Because this cause of action is relatively new, no substantial body of consistent case law has yet developed.
Following are practice pointers for navigating the minefields of a sexual transmission case. Generally these apply to the plaintiff’s side, but they touch on representation of defendants as well.
Address sexual transmission in the initial interview. Within the first hour of the initial meeting with the client, establish the rapport necessary for the client to feel comfortable disclosing intimate details of his or her life.
Advise your client in writing to undergo testing to determine whether he or she has been exposed to or is carrying an STD. Memorialize your advice in writing. Remember that these actions are in the nature of a personal injury action and should be treated similarly. A client seeking advice from a divorce lawyer may not be ready to pursue divorce immediately, but he or she must be cognizant of statute-of-limitations issues.
Consider co-counsel skilled in tort law. No matter how you characterize it, the cause of action for recovery in an STD case is one of personal injury and recovery for compensatory and perhaps punitive damages. The case requires an understanding of a totally new body of case law, nuances, and medical jargon. To navigate these new territories, befriending both a personal injury attorney and a medical practitioner may be helpful. The personal injury attorney may assist in determining how to litigate the matter and in reviewing any reports. The medical practitioner can help advise about symptoms and treatments and the impact of the disease on the person’s day-to-day life. This information will be helpful when negotiating or litigating damages.
In some states, the judge has discretion to decide whether the marital tort will be tried before a jury or remain with the underlying dissolution of marriage. When the marital tort is the dominant issue, the court may order that the marital tort be tried by a jury. In some instances, the family law judge may transfer the matter to the law division for trial.
Bench trials are very different from jury trials. Unless the lawyer has an active personal injury practice or significant jury trial experience, the judgment calls inherent in each will be difficult without guidance. A co-counsel arrangement can make representation cost-effective and produce a better result for the client.
Before filing the action, consider the source of recovery. Prior to taking the case, evaluate the extent to which the aggrieved party can recover damages. In most cases, no insurance coverage will secure the award because homeowner’s policies typically disclaim this kind of conduct in underwriting.
Memorialize the client’s instructions in writing. Advancing the claim is the client’s choice, not the lawyer’s decision. However, the decision to abandon any claim should be memorialized so that the client’s current instructions are not disputed later. Many a claim is not worth pursuing for pure economic reasons, and this understanding should be clearly recorded.
Evaluate whether you can prove or disprove causation. Even if your client has an STD, you may not be able to prove that the other spouse caused it. The most difficult proof is causation. Carriers of some STDs may have no outward symptoms. In fact, the plaintiff may have acquired the STD prior to having sexual contact with the spouse.
Decide how the litigation will be funded. These cases can turn a simple divorce action into a high-conflict matter. In counselling either party, let the client know that the case ultimately will be resolved by settlement or trial. Decisions will need to be made about funding the litigation, which can be costly given the need for expert opinions, especially if multiple experts are needed. For example, a medical expert and a mental health professional may be required to prove the cause of action.
Consider which types of damages can be collected. The type of STD may influence the amount and kind of relief. If the STD is severe, more damages may be sought. Seeking damages for wrongful transmission of an STD is justifiable, but complicated. Recovering a large damage award will be difficult unless a plaintiff can show that problems resulting from the transmission will be a significant burden for life.
Litigating an STD transmission matter is a complicated undertaking. If you are a matrimonial attorney who is not comfortable practicing tort law or appearing before a jury, consider handing off that part of the case to someone who is. Not only are you more likely to get a good result for your client, but the personal injury lawyer may one day return the favour by referring a divorce case to you.
With thanks from Family Law in Partnership to Cary B. Cheifetz Esq. of Ceconi & Cheifetz for this blog.
CARY B. CHEIFETZ is a partner at Ceconi & Cheifetz, L.L.C. in Summit, New Jersey, where he devotes his practice to matrimonial and family law litigation, mediation, and arbitration. He also serves as an expert witness and is past chair of the New Jersey State Bar’s Association’s Family Law Executive Committee, a diplomat in the American College of Family Trial Lawyers, and past president of the New Jersey Chapter of the American Academy of Matrimonial Lawyers.