Case Number: BC491232 Hearing Date: May 27, 2014 Dept: 91

Plaintiff’s Motion for Physical Examination of Defendant, Kris Humphries, filed on 4/30/14 is DENIED. Plaintiff has not demonstrated either that the test results are directly relevant to a material issue raised in this case or a compelling need to justify the intrusion into Defendant’s privacy rights.

There is no material dispute that blood testing is “an invasion of bodily integrity [that] implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” Missouri v. McNeely, 133 S. Ct. 1552, 1558 (U.S. 2013).

Defendant has placed his exposure status in controversy as he asserted it as a basis for his motion for summary judgment, filed on 5/1/14.

“First, Plaintiff is admittedly without facts or evidence to demonstrate that Defendant knew or should have known of any herpes virus infection at the time of engaging in sexual contact with Plaintiff (let alone that Defendant actually was infected with the virus). Indeed, Defendant never experienced symptoms of the virus, tested positive for it, nor has had any other reason to know of any alleged herpes infection.” Defendant’s Motion for Summary Judgment, 1:18-22.

As such Defendant asserted his condition in defense of a claim. Vinson v. Superior Court, 43 Cal. 3d 833, 839 (Cal. 1987).

Because a privacy issue is implicated, Plaintiff has to show that the results from the blood test are directly relevant and essential to a fair resolution of the lawsuit. Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1854 (Cal. App. 5th Dist. 1994). Plaintiff’s need for the discovery must be compelling to overcome Defendant’s right of privacy. Lantz at 1853-1854.

In weighing one party’s right to discovery versus another party’s right to privacy, the court considers a number of factors including the purpose of the information sought and the effect that disclosure will have on the parties and on the trial. Valley Bank of Nevada v. Superior Court of San Joaquin County (1975) 15 Cal. 3d 652

Plaintiff has not demonstrated either direct relevance or compelling need to justify the intrusion into Defendant’s privacy rights. Among other claims, Plaintiff alleges a claim for sexual battery which requires proof of Defendant’s intent to cause a harmful or offensive contact. Cal Civ Code § 1708.5

Intent necessarily requires that Defendant had knowledge that he had the potential to infect the Plaintiff at the time of contact in August and September of 2010. FAC ¶ 37. In order to prevail, Plaintiff must show Defendant knew or should have known he had the virus and failed to disclose it, or misrepresented that he was disease free. Behr v. Redmond, 193 Cal. App. 4th 517, 525 (Cal. App. 4th Dist. 2011).

A positive blood test for the antibody taken in 2014 would not lead to a fair resolution of Plaintiff’s claims as it is not probative of whether Defendant was positive in 2010. The test result does not establish Defendant’s condition or knowledge in 2010. Plaintiff’s expert, Greg Filice, M.D., avers that the test will determine whether Defendant has ever been infected. The test detects the presence of antibodies. Filice ¶ 2. Dr. Filice does not state whether the test result would show when Defendant was infected.