I have to wonder, if the lawsuit had been within the proper timeframe, how this case might have turned out.
Personally, I think it would be very difficult to prove negligence unless each person had solid proof of pre-relationship STD testing and could prove neither one engaged in sexual activity with anyone else during the course of their relationship.
Sheryl Smith sued Andrew McGill Whelan in 2011 for negligence, fraud and misrepresentation, claiming he didn’t disclose before they began having sex in 2008 that he had genital herpes.
A federal judge in Delaware granted summary judgment to Whelan last year, ruling that Smith did not file her lawsuit within the allowable time frame.
A federal appeals panel on Wednesday upheld the lower court ruling.
The panel ruled that, even if Whelan had fraudulently concealed the fact that he had herpes, Smith was not excused from the time requirements for filing a lawsuit because she still had sufficient information to alert her that he was the likely source.