B.F. v. ACCURATE DENTAL GROUP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6369-08T3

B.F.,

Plaintiff-Respondent,

v.

ACCURATE DENTAL GROUP, a New

Jersey corporation, and C.Z.,1

Defendants-Appellants.

August 26, 2011

Argued March 7, 2011 - Decided

Before Judges Lisa, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2604-05.

Michael H. Nieschmidt argued the cause for appellants.

David Zatuchni argued the cause for respondent (Zatuchni & Associates, LLC, attorneys; Mr. Zatuchni, on the brief).

PER CURIAM

Defendants Accurate Dental Group and C.Z., appeal a judgment for $26,000 and an award of counsel fees in the sum of $64,846.25. The judgment followed a jury verdict finding defendants liable to plaintiff B.F. on various theories of negligence, offset by twenty percent comparative fault on her part, as well as for wrongful discharge under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Plaintiff and the individual defendant commenced a dating relationship in February 2003, which ended that July, but resumed in February 2004 when defendant hired plaintiff as an assistant in his dental practice. The parties engaged in unprotected sex throughout their romantic involvement. Defendant also had unprotected sex with other women during the course of his relationship with plaintiff. Plaintiff testified that before they first engaged in sexual relations, defendant showed her a laboratory report that he claimed proved he did not have sexually transmitted diseases (STDs). Unfortunately, unbeknownst to either party, the blood tests did not eliminate the possibility that defendant had been exposed to either chlamydia or human papillomavirus (HPV). Plaintiff's complaint sought damages, among other things, for the transmission of those diseases to her by defendant.

Plaintiff briefly dated two other men after the parties ended the first span of time during which they dated. She testified she did not have sexual intercourse with either man. Defendant's expert testified to the contrary, stating that plaintiff had told him it had occurred with one of the men, despite that man's erectile dysfunction disorder. Although plaintiff engaged in other sexual activity with this individual and one other person, the medical testimony and circumstantial evidence, while arguably equivocal, supported a reasonable inference that the greater likelihood was that she contracted chlamydia and HPV from defendant. In other words, a jury could reasonably find, by a preponderance of the evidence, that defendant, not the other two individuals plaintiff briefly dated, was the source of these infections.

Plaintiff discovered that she had both chlamydia and HPV in May 2004, following a routine check-up. When she informed defendant of her condition, he told her that he had once dated a woman who had HPV and that it "went away" on its own. Defendant, who began undergoing treatment for chlamydia once informed by plaintiff that she had contracted the STD, still declined to be exclusive in his relationship with plaintiff.

Following plaintiff's diagnosis, the parties stopped dating. They experienced conflict in the workplace stemming from their personal difficulties and, from defendant's perspective, plaintiff's job performance. Defendant insisted that when he terminated plaintiff on July 9, 2004, shortly after her decision to stop seeing him, it was the result of her poor job performance. He acknowledged telling her that he could not date her and work with her at the same time: on August 9, 2004, in fact, defendant sent plaintiff an email to that effect.

Plaintiff testified that, post-termination, the parties engaged in sexual relations on one additional occasion, as a result of which she was allegedly reinfected with chlamydia. Defendant disputed the claim, stating that the parties did not resume sexual relations once he fired plaintiff. In any event, defendant asserted that he was either reinfected by plaintiff or that the medicine he took was ineffective, as that year he and his new wife contracted chlamydia.

On appeal, defendants contend that the trial court erred in denying their: (1) two summary judgment applications, (2) motion for leave to file a defamation counterclaim, and (3) motion for directed verdict on causation and economic wage loss. Defendants also contend the court's award of fees to plaintiff's counsel erroneously set the "lodestar," as neither the number of hours nor hourly rate were reasonable. Lastly, defendants assert the court incorrectly entered judgment for $9000 in economic damages.

We have thoroughly considered the various points raised by defendants on appeal and conclude they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). The final judgment is supported both by applicable legal principles and by substantial credible evidence in the record.

New Jersey recognizes a cause of action for the negligent transmission of venereal diseases or HIV. See, e.g., Williamson v. Waldman, 150 N.J. 232, 249 (1997) (setting standards for emotional distress damages arising from fear of contracting HIV/AIDS); F.S. v. L.D., 362 N.J. Super. 161, 167 (App. Div. 2003) (allowing a claim by plaintiff against her former fiancé for emotional distress based on her exposure to HIV); G.L. v. M.L., 228 N.J. Super. 566, 571 (Ch. Div. 1988) (examining the question of whether plaintiff's claim survived the defense of interspousal immunity, court assumed cause of action for negligent transmission of herpes). As to causation, it was proper for plaintiff's treating physician in the present case to opine on that subject. See Stigliano ex rel. Stigliano v. Connaught Labs., 140 N.J. 305, 314 (1995).

No error was committed by the trial court in denying defendants' motion for leave to file a counterclaim for defamation. N.J.S.A. 2A:14-3 states: "[e]very action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander." Defendant alleges plaintiff defamed him in 2004 when she wrote to others informing them he had infected her with STDs; however, since he did not learn of the facts giving rise to the claim until 2007, the discovery rule should be revisited and expanded to include defamation. On this point, the Supreme Court has conclusively spoken. See Lawrence v. Bauer Publ'g & Printing Ltd., 78 N.J. 371, 375 (1979) (Pashman, J., concurring) (finding the discovery rule inapplicable as a matter of law to defamation actions). The statute does not define the limitation period in terms of the accrual of the cause of action, but the publication itself, thereby making the discovery rule inapplicable. Id. at 374-75. Notwithstanding the Supreme Court's comment in Williams v. Bell Telephone Laboratories, Inc., 132 N.J. 109, 120 (1993), that it might revisit Lawrence, in an appropriate case, to consider whether a discovery-rule exception should be allowed in "certain defamation actions," we are bound by the Lawrence precedent and will not consider challenging it.

As to the LAD claims and corresponding award of counsel fees, N.J.S.A. 10:5-27.1, we see no error in the jury's award of economic damages of $9000 nor in the calculation of attorney's fees. Plaintiff's counsel requested $101,182.50 in total fees as the proposed "lodestar," or "number of hours reasonably expended multiplied by a reasonable hourly rate." Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In calculating the award, the trial court deducted hours for causes of action abandoned by plaintiff pre-trial, and reduced the hourly rate of an associate. The basis for making these calculations is substantiated by the record. Because the LAD and the common law claims were intertwined, however, the court could not separate out time invested in one from the other. This decision also seems unexceptional.

We discern no reversible error in the trial court's rulings, nor is there any manifest injustice in the jury's findings of liability or in the modest compensatory damages that were awarded. The counsel fees awarded on the LAD claim, as to which plaintiff was a prevailing party, were reasonable.

1 Due to the sensitive nature of this matter, the court has decided to use initials for the parties analogous to N.J.S.A. 26:4-41.