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Hamblen v. Davidson11/8/2000
ns must agree on the proper outcome." Roe v. Catholic Diocese of Memphis, Inc., 950 S.W.2d 27, 31 (Tenn. Ct. App. 1996).
This Court has noted that a jury may infer a causal connection through the use of circumstantial evidence, expert testimony or both. Quaker Oats, 232 S.W.2d 282 at 294. Similarly, Courts addressing the issue of negligent transmission of the herpes virus have recognized that expert testimony is not required to establish causation. In M.M.D. v. B.L.G., 467 N.W.2d 645, 647 (Minn. Ct. App. 1991), the Court of Appeals of Minnesota noted that the "causation of herpes is not beyond the average person's knowledge," and that the inability of a medical expert to state with a "reasonable degree of medical certainty" that the defendant is the cause of the plaintiff's infection is not fatal to the jury's ability to determine causation.
Defendant argues that Plaintiff failed to establish that he was the source of her herpes. In support of this claim, Defendant points to evidence that the Plaintiff engaged in sexual relations with Mr. McCullough at a graduation party in 1973. Defendant argues that, because Mr. McCullough has also tested positive for the virus which causes herpes, and that Plaintiff failed to present any "competent medical evidence," Plaintiff has failed to establish that Defendant is the source of her herpes infection. We respectfully disagree.
As noted ealier, the Minnesota Court of Appeals in M.M.D. v. B.L.G., supra, held that expert testimony was not necessary to establish causation. Given the evidence in the record that genital herpes is transmitted by sexual activity, we believe that the holding of the Minnesota Court would apply equally in Tennessee. In the instant case, the Plaintiff did present evidence, including medical evidence, which viewed in the light most favorable to her, could create an inference that Defendant was the cause of her herpes. The Plaintiff here presented uncontroverted evidence that she was married to Defendant for twenty-two years and that, during that time, she did not engage in sexual relations with anyone except her husband. The Plaintiff also testified that she has not been sexually involved with anyone since her marriage ended. The record also contains uncontroverted testimony that the Plaintiff never exhibited the symptoms of herpes until 1995, a year after Defendant began his extramarital relationship with Ms. Greene.
Although Plaintiff does not deny that she engaged in sexual intercourse with Mr. McCullough prior to her marriage, Plaintiff presented evidence that Mr. McCullough tested positive for the herpes simplex I virus, which is normally associated with fever blisters rather than venereal outbreaks. Although there is conflicting evidence regarding the different types of the herpes simplex virus, whether the Plaintiff could have contracted the virus from a source other than the Defendant is a question of fact for a jury to decide and was not a proper issue for summary judgment.
Conclusion
Based on the evidence in the record, we hold that there are genuine issues of material fact for a jury to resolve, and that the trial court erred in granting summary judgment in this action. Accordingly, the order of the trial court is reversed, and the case is remanded to the trial court for such further proceedings as may be necessary. Costs of appeal are assessed against the appellee, Richard Davidson.
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