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Roe v. Doe

Court of Appeals of Columbia District

August 8, 2013

John Roe, Appellant,
v.
Jane Doe, Appellee.

Argued May 22, 2013.

Appeal from the Superior Court of the District of Columbia (CAB-4366-11), Hon. Anita Josey-Herring, Motion Judge, Hon. Anthony C. Epstein, Trial Judge.

Daryle A. Jordan, with whom Richard E. Patrick was on the brief, for appellant.

Jonathan S. Zucker for appellee.

Before Washington, Chief Judge, Beckwith, Associate Judge, and Steadman, Senior Judge.

Washington, Chief Judge.

In June 2011, appellee Jane Doe sued appellant John Roe[1] claiming that he negligently infected her with herpes during their relationship in 2010.[2] Appellant appeals from a jury verdict finding him liable for one count of negligent infliction of herpes and argues that the judgment should be reversed and the case remanded because the trial judge abused his discretion in imposing on him a disproportionately severe discovery sanction for his failure to properly provide sexually transmitted disease ("STD") test results to appellee. For the reasons articulated below, we find that the trial judge did abuse his discretion in imposing a disproportionately severe sanction for appellant's discovery violation. Accordingly, we reverse and remand this case for further proceedings consistent with this opinion. [3]

I. FACTS

On June 2, 2011, appellee Jane Doe filed a lawsuit against appellant John Roe claiming that he infected her with genital herpes during their sexual relationship in 2010. Appellant and appellee met in November 2009 and began dating shortly thereafter. In March 2010, the parties began engaging in sexual relations. Appellee alleged that appellant transferred herpes to her around June 18, 2010, and produced medical records at trial showing that she tested negative for herpes on June 7, 2010, and tested positive for herpes on June 27, 2010. Appellant testified that he was never told by anyone that he had herpes before becoming sexually intimate with appellee.

Pre-Trial Motions

Appellant represented himself through pretrial discovery, motions, and the trial below.[4] On July 29, 2011, appellee served appellant with a request for an independent medical examination to establish whether he had herpes. Appellant did not respond to this request and appellee subsequently moved to compel discovery of appellant's herpes status. On November 30, 2011, the motions judge directed appellant to "file with the court under seal, a certified copy of an STD test" by December 16, 2011. On January 18, 2012, over a month after the filing deadline, appellant filed notarized results of an STD test taken on December 5, 2011, however, the only test results that were reported related to chlamydia and gonorrhea. In addition, the test results were filed in a packet that did not comply with the motion judge's filing instructions.[5] Appellee moved for sanctions, specifically requesting that the trial court enter default judgment against appellant or strike appellant's answer with regard to the claim of negligence.

On January 24, 2012, the trial judge ordered appellant to file the results of a test for herpes no later than February 3, 2012, and to show cause for his failure to comply with the November 30 order. On January 30, 2012, appellant took a test specifically for herpes, which came back positive. Appellant explained to the trial judge that when he obtained his first STD test, he believed that he was complying with the November 30 order, as it only stated that he needed to take an "STD test" and he was not aware that a general STD test did not include herpes.

On February 13, 2012, the trial judge sanctioned appellant for non-compliance with the November 30 order, finding that the order was clear about both the type of test he needed and how he needed to file the results. As a sanction, the trial judge prohibited appellant from contesting at trial that he had herpes during the time of his sexual relationship with appellee. In fact, on the first day of trial, the trial judge instructed the jury that "there's no issue in this ...


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