RALPH DOUGLAS WEST II v. D. C., Appellee (2025)

OPINION

Reversed and Rendered and Opinion filed June 26, 2025.

“What is an infection and from whence did it come are matters determinable only by medical experts.” Kaster v. Woodson, 123 S.W.2d 981, 983 (Tex. App.—Austin 1938, writ ref'd).¹ In this case, we must address whether the same principle remains true today for a sexually-transmitted disease (“STD”).

Appellee D.C. filed suit against appellant Ralph Douglas West II for assault, battery, intentional infliction of emotional distress (“IIED”), fraudulent concealment, and fraudulent misrepresentation based on West's alleged transmission of genital herpes to D.C. during their relationship. The jury returned a verdict in D.C.'s favor.

Although West raises nine issues on appeal, we address only his second issue because it is dispositive. See Tex. R. App. P. 47.1. In his second issue, West argues that expert testimony was required to establish proximate causation, i.e., that West caused D.C. to contract genital herpes. Concluding that expert testimony was required to establish causation in this transmission-of-disease case, and that D.C. presented none, we reverse and render judgment that D.C. take nothing on her claims.

I. BACKGROUND

West is a pastor at a church. D.C. is a “model and entrepreneur.” The following represents a summarized timeline of the pertinent facts:

• In February 2017, D.C. and West met via social media.

• The two communicated via social media and text messages until they met in person for the first time in May 2017 and had protected sex.

• At some point between February 2017 and May 2017, D.C. alleges that West told her that he had been tested for STDs and that his results were all negative.

• Between August 2017 and February 2018, the parties hardly met or communicated.

• On March 30, 2018, the parties met again for the first time in several months and had unprotected sex.

• Two days later, on April 1, 2018, D.C. accused West of giving her herpes based on Googling the symptoms she was experiencing. West responded that the herpes must have come from the mother of his son.

• In March 2020, D.C. filed suit against West.

• In October 2023, a jury returned a verdict in favor of D.C. on all of her claims, awarding her $1,450,000 in physical pain and mental anguish and $1,000,000 in exemplary damages.

This appeal followed.

II. NECESSITY OF EXPERT TESTIMONY

In his second issue, West argues there was no evidence of causation.² More specifically, he argues that expert testimony was required to establish proximate causation, i.e., that West caused D.C. to contract herpes.

A. Standard of review

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 821–22, 827 (Tex. 2005); see also Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). The evidence is legally sufficient if it would enable a reasonable and fair-minded person to reach the verdict under review. City of Keller, 168 S.W.3d at 827. But the evidence is legally insufficient if there is a “complete absence of evidence of a vital fact.” Id. at 810.

“If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so.” Id. at 822. “A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” Id.

B. Applicable Law

To establish causation in a personal injury case, a plaintiff must prove the conduct of the defendant caused an event and this event caused the plaintiff to suffer compensable injuries. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). “The general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007); see Kaster, 123 S.W.2d at 983 (concluding that without expert testimony, the trial court and jury are not qualified to answer questions regarding the causation of infections).

As an exception to the general rule, expert testimony is not required in certain, limited cases:

We have allowed lay evidence to establish causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition․

When lay testimony is credited as evidence of causation, it usually highlights a connection between two events that is apparent to a casual observer. In Morgan, for example, a previously healthy employee, upon exposure to leaking chemicals, suffered watering of the eyes, blurred vision, headaches, and swelling of the breathing passages. In such a circumstance, lay testimony sufficed to connect the specific injury to the negligence with no evidence of causation beyond the leaking chemicals. Likewise in Guevara, we stated that determining causation of certain types of pain, bone fractures, and similar basic conditions following an automobile accident was within the competence of lay jurors. But we held that expert testimony was required to prove that a patient's medical expenses resulted from the accident, noting that patients in hospitals are often treated for more than one condition brought on by causes independent of each other. These cases illustrate this basic premise: non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.

Jelinek v. Casas, 328 S.W.3d 526, 533–34 (Tex. 2010) (internal citations and quotation marks omitted).

C. Analysis

At trial, no medical experts testified.³ D.C. did not introduce any medical records or test results to prove she actually tested positive for genital herpes; instead, she simply testified about her symptoms and claimed she saw a doctor, who allegedly ordered lab tests that revealed she had herpes. Because of the complete lack of expert testimony (and medical evidence), West argues that there was no evidence of causation, and that D.C. merely raised a “suspicion” that he gave her herpes. See Guevara, 247 S.W.3d at 668 (“Evidence of an event followed closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion that the event at issue caused the conditions. But suspicion has not been and is not legally sufficient to support a finding of legal causation.”).

The specific question of whether expert testimony is required to establish causation in a case involving the transmission of an STD is a question of first impression for our court. The only three courts of appeals that have specifically addressed this question have all done so in the affirmative, stating that expert testimony is required to establish causation. See N.F. v. A.S., No. 05-16-00254-CV, 2017 WL 3276452, at *2 (Tex. App.—Dallas Aug. 2, 2017, pet. denied) (mem. op.) (“The nature of A.S.'s injury [i.e., herpes] is such that expert medical testimony was required to establish causation.”); Verhage v. Verhage, No. 12-04-00309-CV, 2006 WL 1791565, at *7 (Tex. App.—Tyler June 30, 2006, no pet.) (mem. op.) (“[W]hether Melody or John caused the other to contract genital herpes is not a question that can be answered by general experience and common sense.”); L.W. v. L. S., No. 03-96-00535-CV, 1997 WL 634343, at *2 (Tex. App.—Austin Oct. 16, 1997, no pet.) (“Medical causation is an appropriate matter for expert opinion in a suit for damages arising from the transmission of a disease.”).

D.C. insists that this case is distinguishable from N.F., Verhage, and L.W. and instead is more similar to Morgan; thus, according to D.C., she did not need an expert to prove causation because “[l]ay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.” Morgan, 675 S.W.2d at 733. D.C. asserts she established a sequence of events that constituted sufficient evidence of causation: she had no STDs before meeting West and she first started experiencing symptoms of herpes several days after having sex with West.

However, D.C.'s reliance on Morgan is, perhaps, misplaced. It is worth noting that Morgan was issued in 1984, years prior to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995), and Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). Thus, given how drastically the legal landscape has evolved regarding expert testimony, it is not certain that Morgan would be decided the same if it were issued today. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 n.23 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Anderson's reliance on Morgan ․ is misplaced. Lay testimony sufficed in Morgan because a default judgment left no evidentiary dispute as to whether “general experience and common sense” could allow a lay person to determine causation․ Moreover, Morgan predates Robinson and Havner.”); Qualls v. State Farm Lloyds, 226 F.R.D. 551, 557 n.4 (N.D. Tex. 2005) (“Query whether Morgan would be decided the same way today following the Texas Supreme Court's more restrictive view of reliable expert testimony in toxic exposure cases. See, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).”).

As evidence of how the legal landscape has shifted since Morgan, it is now well-established that expert testimony is required to establish causation in chemical-exposure cases. See Abraham v. Union Pac. R. Co., 233 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (“The existence of a causal connection between exposure to a certain chemical and injury or disease requires specialized expert knowledge and testimony because such matters are not within the common knowledge of lay persons.”); Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36 (Tex. App.—Houston [1st Dist.] 2004, pet. denied), (opinion on rehearing) (“Expert testimony is particularly necessary in chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony.”).

And although N.F. and Verhage are not binding on us, we find them to be illustrative of precisely why experts are necessary in transmission-of-disease cases, just as experts are necessary in modern chemical-exposure cases, Morgan notwithstanding.

In N.F., a woman sued a man, alleging he infected her with genital herpes. See N.F., 2017 WL 3276452, at *1 Her medical expert testified that his opinion of causation was based on his clinical experience, the woman's lab results, and the woman's symptoms:

According to [the expert], it was not just A.S.'s symptoms, but the type of symptoms and length of her first outbreak that had “clinical significance.” He noted A.S.'s “constitutional or systemic” symptoms like body-wide, flu-like symptoms including fever and muscle aches that began on May 2 or May 3, as well as her very severe local symptoms, and the existence of bilateral lesions in her genital area, were indicative of a first outbreak of herpes. He also noted her extremely long first outbreak was strongly associated with an initial outbreak as opposed to a recurrent outbreak[,] which might last a week to ten days.

Id. Without the testimony of the medical expert, a jury could not be reasonably expected to know the symptoms of herpes, appreciate the “clinical significance” of the type and length of the woman's symptoms, or understand the difference between an initial outbreak and a recurring outbreak.

In Verhage, a man and a woman both had genital herpes, and each accused the other of transmitting the virus. See Verhage, 2006 WL 1791565, at *1. The court of appeals noted there was no medical expert testimony to show “the incubation period, rates of transmission, or how transmission occurs in genital herpes.” Id. at *7. Thus, the court concluded that expert testimony was required because those are not “question[s] that can be answered by general experience and common sense.” Id.

N.F. and Verhage both reflect the reality that it is simply not within the competence of lay jurors to answer the types of questions necessary to establish causation in a transmission-of-disease case, such as: What are the symptoms of genital herpes? Were the symptoms D.C. experienced unique to herpes or are there other medical conditions that share similar symptoms? How does transmission occur? Can herpes be contracted non-sexually, and if so, what are the rates of transmission? What is the incubation period? What is an incubation period? How does an initial outbreak differ from a recurrent outbreak? How long and severe are outbreaks? Answering any of these questions requires specialized expert knowledge and testimony.

In summary, knowledge concerning the transmission of diseases, particularly STDs, is simply outside the common experience of jurors. D.C. needed expert testimony to establish that West caused her to contract genital herpes. Without expert testimony, D.C. did nothing more than raise a “suspicion” of causation, which is legally insufficient. Accordingly, we must reverse the judgment of the trial court and render judgment. See Heritage Res., Inc. v. Hill, 104 S.W.3d 612, 619 (Tex. App.—El Paso 2003, no pet.) (noting that when a legal sufficiency challenge is sustained on appeal, “it is our duty to reverse and render”).

We sustain West's second issue.⁴

III. CONCLUSION

We reverse the judgment of the trial court and render judgment that D.C. take nothing on her claims.

FOOTNOTES

1.   A ruling of “writ ref'd” signifies that the “[j]udgment of the court of civil appeals is correct and the Texas Supreme Cour is satisfied that the opinion has correctly declared the law. Such cases have equal precedential value with the Texas Supreme Court's own opinions.” Texas Rules of Form: The Greenbook Appendix E, “Writ refused.” (Texas Law Review Ass'n ed., 14th ed. 2018).

2.   Although we only address West's second issue, West's raises a total of nine issues on appeal, as follows: (1) the judgment on D.C.'s IIED claim should be reversed because other theories of redress were available to her; (2) there was no evidence regarding proximate causation; (3) there was legally and factually insufficient evidence that West knew that he had herpes or that he was likely to transmit herpes to D.C.; (4) under Texas law, there is no affirmative duty to disclose a prior diagnosis for an STD; (5) the evidence supporting the jury's physical pain and mental anguish awards is legally and factually insufficient; (6) there is insufficient evidence to support a finding of gross negligence and exemplary damages; (7) the improper jury argument by D.C.'s trial counsel, combined with the erroneous exclusion of text messages West attempted to introduce, constituted harmful error; (8) the award of exemplary damages in this case violates the U.S. and Texas Constitutions; and (9) alternatively, even if the judgment is not reversed, the judgment is excessive and should be reduced.

3.   D.C. attempted to have a medical expert testify, but the trial court sustained West's objection that D.C. had failed to timely disclose the expert prior to trial. See Tex. R. Civ. P. 193.6(a) (stating that, except for certain exceptions, a party may not “offer the testimony of a witness (other than a named party) who was not timely identified[.]”).

4.   Because we sustain West's second issue and the issue is dispositive, we need not reach his other eight issues.

Tonya McLaughlin Justice