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IN THE COURT OF APPEALS OF IOWA No. 9-835 / 08-1815 Filed December 30, 2009

KARLY K. ROSSITER, Plaintiff-Appellee, vs. ALAN B. EVANS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Mark Smith, Judge.

Defendant appeals the $1.5 million jury verdict for negligent transmission of sexually transmitted disease. AFFIRMED.

Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, and Rand Wonio, Davenport, for appellant. Jeffrey R. Tronvold and Matt J. Reilly of Eells & Tronvold Law Offices, P.L.C., Cedar Rapids, for appellee.

Considered by Eisenhauer, P.J., and Potterfield, J. and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 POTTERFIELD, J. Alan Evans appeals from a jury verdict in this negligent-transference-of-asexually-transmitted-disease claim. We affirm. I. Background Facts & Proceedings. Alan Evans is a dentist. Karly Rossiter came to see Evans because

Evans had purchased Rossiters dentists practice. Evans and Rossiter entered into a sexually intimate relationship shortly after Rossiters first appointment with Evans. They discussed sexually transmitted diseases (STDs) prior to becoming sexually intimate and Evans claimed to be STD-free. Neither was a virgin.

Rossiter testified that after their first sexual encounter, Evans called her and suggested she should get tested for human papilloma virus (HPV). Rossiter did get tested and was diagnosed with HPV, and later, dysplasia or pre-cancerous cervical cells for which she had to undergo a surgical procedure. Additionally, Rossiter testified that Evans had bumps on his penis that were consistent with genital warts.1 She also testified that during the course of her relationship with Evans, she developed genital warts and was treated three times for bacterial vaginitis. When she asked Evans to be treated for bacterial vaginitis, Evanss response was that he did not have a vagina, so he did not need to be treated. Dr. Gregory Brotzman opined that it was more likely than not that Evans transmitted cancer-causing HPV and genital warts to Rossiter.

1

Dr. Gregory Brotzman, Rossiters expert witness, testified there is no FDA approved test to determine if a male carries HPV. However, "the most common way for someone to know they had HPV is if they have genital warts."

3 Evans disputed he ever had, knew he had, or should have known he had HPV or bacterial vaginitis, such that he had a duty to warn or to avoid transmitting either to Rossiter. He denied ever having genital warts. Although Evans denied knowledge of being exposed to any STDs, he testified that when he began seeing Rossiter, he was also seeing two other women, one of whom eventually gave birth to his child. He described that woman to Rossiter as having a distinct odor related to bacterial vaginitis. Evanss expert, Dr. Kenneth Naylor, opined that unless one of the partners was a virgin, it is impossible to say whether the other introduced HPV. Naylor opined that it was "very unlikely that Alan Evans transmitted an HPV infection" to Rossiter. The case went to the jury for consideration of Rossiters claims of negligence, battery, assault, and fraudulent misrepresentation and damages, including punitive damages. The jury was instructed that punitive damages could be awarded "if the plaintiff has prove[d] by a preponderance of clear, convincing and satisfactory evidence the defendants conduct constituted a willful and wanton disregard for the rights or safety of another." Evans did not object to the instruction or verdict forms submitted. The jury found Rossiter had proved her claim of negligent transference of HPV. However, the jury found Rossiter had not proved her claims of battery, assault, and fraudulent misrepresentation. They awarded Rossiter damages in

4 the amount of $700,000.2 The jury answered the punitive damage interrogatory in the affirmative and awarded $800,000 in punitive damages. Evans now appeals. He contends there was insufficient evidence that he knew or should have known that he had human papilloma virus (HPV) or bacterial vaginitis such that he had a duty to warn about or avoid transmittal of those diseases to Rossiter. He also contends there was insufficient evidence that he was the source of Rossiters dysplasia. Evans contests the propriety of punitive damages in light of the jurys findings on Rossiters claims of battery, assault, and fraudulent misrepresentation. Finally, he argues the damages

awarded were excessive and unsupported by the evidence. II. Analysis. A. Sufficiency of the evidence. The court reviews a challenge to the denial of a motion for a directed verdict for correction of errors at law. The evidence is considered in the light most favorable to the nonmoving party. If there is substantial evidence in the record to support each element of a claim, the motion for directed verdict must be overruled. Additionally, if reasonable minds could reach different conclusions based upon the evidence presented, the issue is properly submitted to the jury. Wolbers v. Finley Hosp., 673 N.W.2d 728, 734 (Iowa 2003) (citations omitted). Evans moved for directed verdict and judgment notwithstanding the verdict or for new trial. He argues: [T]here was insufficient evidence that he had, or knew he had, or should have known that he had, either HPV that could cause dysplasia or genital warts, or bacterial vaginitis. Without such knowledge, Evans had no duty to warn Rossiter or otherwise
2

The verdict form indicates the jurys award was broken down as follows: $50,000 for past physical pain and suffering, $150,000 for past mental pain and suffering, and $500,000 for future mental pain and suffering.

5 protect her from the transmission of these sexually transmitted diseases. We believe this statement is indicative of the confusion concerning the role of foreseeability of risk in the assessment of duty in negligence actions, which our supreme court has recently addressed in Thompson v. Kaczinski, ___ N.W.2d ___, ___ (Iowa 2009). "An actionable claim of negligence requires the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages." Thompson, ___ N.W.2d at ___

(citations omitted). Whether a duty arises out of a given relationship is a matter of law for the courts determination. Id. at ___. "An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical harm." Id. at ___ (quoting Restatement (Third) of Torts: Liab. for Physical Harm

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