The opinion of the court was delivered by: JOHN H. PRATT
In this action, plaintiff seeks to recover for injuries allegedly resulting from the tortious communication of a sexually transmissible disease. Currently before us is defendant's motion for summary judgment under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 56. This Court, sitting by diversity, is required to apply the choice of law rules of the District of Columbia. The sole issue for purposes of this motion is to determine which substantive law applies, i.e. the law of the District of Columbia or that of Virginia. For the reasons given herein, we apply the law of each jurisdiction to the events occurring within its respective territory.
Plaintiff and defendant met on March 21, 1990, at a reception in the District of Columbia. At all times relevant to this litigation defendant Roe was a resident of the District of Columbia. Plaintiff Doe resides in Virginia, but was employed in the District of Columbia during 1990.
The parties began a social relationship which developed romantically over the course of several contacts, the vast majority of which occurred in the District of Columbia.
On the night of April 26, 1990, the parties returned to plaintiff's home in Virginia after dinner in the District of Columbia. During the course of the evening, the parties engaged in sexual intercourse ("the Virginia encounter"). Complicating the legal scenario, on April 29th, the parties again engaged in sexual intercourse, this time at the Watergate Hotel in the District of Columbia ("the District encounter"). Two days later plaintiff Doe allegedly began to feel the pain associated with Herpes Simplex Type II ("herpes"), commonly known as genital herpes, and human papilloma virus, commonly known as genital warts. Because the incubation period for herpes is somewhere between two to ten days,
it is difficult, if not impossible, to determine which encounter resulted in plaintiff's becoming infected.
alleges that defendant intentionally misrepresented to plaintiff that he was free from sexually transmitted diseases. She seeks relief under theories of negligence, fraud, intentional and negligent infliction of emotional distress, and battery.
When the moving party has carried its burden, the burden shifts to the nonmoving party to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (citations omitted) (emphasis in original). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. In reviewing the evidence, a court must draw all reasonable inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Then, only when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," Matsushita, 475 U.S. at 587, is summary judgment appropriate.
B. Choice of Law Standard.
This Court, sitting by diversity, must apply the choice of law rules of the District of Columbia. GEICO v. Fetisoff, 294 U.S. App. D.C. 279, 958 F.2d 1137, 1141 (D.C. Cir. 1992). The law of the forum is presumed to apply unless it is demonstrated that a foreign jurisdiction has a greater interest in the controversy than does the District. Kaiser-Georgetown Community Health Plan v. Stutsman, 491 A.2d 502 (D.C. 1985). In determining which jurisdiction has the greater interest in the litigation, District of Columbia courts follow "a modified 'governmental interests analysis'." Moore v. Ronald Hsu Construction Co., 576 A.2d 734, 737 (D.C. 1990) (quoting Hercules & Co. v. Shama Restaurant, 566 A.2d 31, 40-41 (D.C. 1989)). This analysis should be based on factors set forth in the Restatement (Second) of Conflicts of Law ("Restatement"), § 145.
See Rymer v. Pool, 574 A.2d 283, 286 (D.C. 1990).
C. Application of Governmental Interests Analysis.
The choice of law question is central to this action because criminal statutes in both jurisdictions prohibit sexual intercourse between unmarried partners. See 22 D.C. Code § 1002 (fornication punishable by a fine of up to $ 300 and/or 6 months in jail); see also Virginia Code § 18.2-344 (fornication punishable as Class 4 misdemeanor). Therefore, recovery is only possible in ...