[UPDATE] You Got It Bad: Usher, New Herpes Lawsuits & Confidentiality Clauses

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Yesterday, July 21, R&B singer Usher Raymond (38) was hit with a $10 million dollar civil lawsuit claiming Raymond knowingly exposed the Plaintiff to the incurable sexually transmitted disease herpes. The lawsuit was filed just days after documents from a 2008 out of court settlement hit the internet revealing that Raymond paid a $1 million dollar settlement from another woman claiming the singer gave her herpes.

Usher Raymond is having a bad week. On Wednesday, GCE reported breaking news that Raymond paid out the substantial sum of $1 million dollars to a woman who sued him for knowingly infecting her with herpes. The documents, first obtained by RadarOnline, show that the settlement took place in 2008. The details of the suit were graphic, unambiguous and potentially embarrassing. It is now public knowledge that the “Confessions” singer is allegedly infected with a condition that causes his sexual organ to ooze a green discharge.

Apparently there was one individual in particular who took notice of the salacious headlines concerning Raymond’s settlement. An unknown and undisclosed woman, labeled as “Jane Doe” in court documents, filed suit in a Los Angeles superior court yesterday alleging similar details. She is suing Raymond for emotional distress, negligence and battery for potentially exposing her to genital herpes. The facts of this particular lawsuit are just as lurid and specific as the 2008 settlement.

During their initial alleged sexual encounter, the woman states she performed oral sex on Raymond and engaged in sexual intercourse. The suit states that Raymond wore a condom during the first encounter, but that they engaged in unprotected sex during a second encounter. The second time apparently took place in a New Orleans hotel room nearly two weeks later. However, the intriguing thing about this particular lawsuit is that the woman acknowledges that she has not been diagnosed with herpes or any other sexually transmitted disease. Rather she is basing her lawsuit solely on the fact that she found out that Raymond had the disease through the 2008 settlement documents that hit the blogosphere this week.

It is now common knowledge that an individual can sue a sexual partner for transmission of an STD under several legal theories. Those theories include; negligence, battery, or fraud. Under a negligence cause of action, the plaintiff must prove that the defendant owed a duty to the plaintiff and that the defendant knew or should have known that he or she had an STD that was likely to be passed on to the plaintiff.

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A judge will almost always find that a defendant owes a duty to disclose to a sexual partner that he or she has an STD. So, if the defendant should have known about the STD, had intercourse with the plaintiff, and transmitted the disease, the defendant’s liability is likely. Note that it is also possible, in some circumstances, to sue for exposure to an STD, although no transmission occurred. This kind of case can be based on negligence or intentional infliction of emotional distress. This is the case in the aforementioned lawsuit.

A battery cause of action for transmission of an STD is similar to other civil battery actions, which involve the defendant’s intentional, unconsented harmful contact with the plaintiff. With an STD case, although the plaintiff may consent to intercourse, he or she is not consenting to intercourse accompanied by the known risk of contracting an STD. Additionally, it is not necessary that the defendant specifically intended to transmit the STD. Going forward with intercourse with the knowledge that transmission could occur is enough.

For a civil battery claim to work, it is generally necessary that the defendant have actual knowledge that he or she is infected with an STD, or is likely to have one. Finally, a fraud cause of action is possible where the defendant knew he or she had, or was likely to have, an STD, but hid that information from the plaintiff in order to have intercourse.

As mentioned, if the allegations against Raymond prove true he may be held liable for exposing  “Jane Doe” to herpes regardless if she actually contracted the disease or not. This could prove to be a precarious situation for the multi-platinum singer. This is because Raymond could now potentially be exposed to innumerable lawsuits against him by anyone who has had sexual intercourse with the pop star since he contracted the disease. Raymond is an internationally known, wealthy superstar who could potentially pay out millions of dollars in lawsuits. The entire world now knows potentially damaging information due to a civil suit settlement that almost certainly included a confidentiality clause. In other words, the flood gates may have been opened.

A confidentially agreement, also known as a non-disclosure agreement, is legally defined as a legally binding contract in which a person or business promises to treat specific information as a trade secret and promises not to disclose the secret to others without proper authorization. When it is included as a part of another contract, it is called a confidentiality clause or non-disclosure clause. They are usually included in out of court settlements and when the contents of a lawsuit are potentially embarrassing, damaging or could open the plaintiff up to additional lawsuits. Therefore, it is more then likely that someone with intimate knowledge of Raymond’s 2008 settlement leaked the documents online in violation of the clause. It is also possible that the documents could have fallen in the hands of someone accidentally or illegally and they sold or gave the information away.

Logically, this brings us to the next question; how can Raymond be sued based on a settlement that was never intended to ever be seen by the public? The answer is murky at best and likely to be decided by a judge. Raymond’s attorneys will no doubt attempt to get the case thrown out based on the fact that payment of a settlement agreement is not an admission of guilt. Individuals settle cases out of court for a myriad of reasons including avoiding embarrassing and costly litigation. Further, the fact that “Jane Doe” never contracted the STD would show that the plaintiff has no actual knowledge that Raymond has the disease, rather she is merely relying on leaked documents in violation of a confidentiality clause. This does not mean that other individuals who may have been infected by the singer will not attempt to sue, and their lawsuits may be legitimate.

Nevertheless, Usher certainly has recourse to sue the leaker of the settlement document. In the situation of a breach of a non-disclosure agreement or clause, the damages are usually measured in terms of the harm done to the non-breaching party. That party will have to show what injuries it has suffered as a result of the breach, such as the cost to re-secure the lost secrets, the profits earned by the entity to which the secrets are divulged, etc. Of course, this assumes that Raymond could even identify the individual who has leaked the documents, which may prove difficult.

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Furthermore, Raymond may have basis for a civil suit against RadarOnline, the gossip website which obtained the documents. In most states, an individual or organization can be sued for publishing private facts about another person, even if those facts are true. The term “private facts” refers to information about someone’s personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person.

However, the law protects the publisher when the information is newsworthy, regardless of whether that individual would like to keep that information private. RadarOnline will certainly attempt to use this defense if sued. Courts have held that there is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as movie stars, politicians, and professional athletes. RadarOnline may also attempt to claim “freedom of the press”. This defense did not fair well for Gawker, another gossip website that was forced to pay Hulk Hogan $31 million dollars for publishing his sex tape on their website.

Regardless of whether or not this lawsuit moves forward, it will not shock anyone to see similar lawsuits against Raymond in the near future. Even though Raymond is a huge superstar this kind of legal situation is not unique to the rich and famous. Not only have people been sued for recklessly infecting sexual partners with diseases, some have even been charged criminally and gone to jail for doing so. The easy advice to avoid this situation is to have sexual intercourse safely and protect yourself. The less obvious advise is to get a good lawyer to protect you.

[UPDATE]

On July 24, it was revealed that the woman suing Raymond for exposing her to herpes has discovered that she has in fact contracted the disease. The woman, still known simply as “Jane Doe”, went to get tested after reading the aforementioned article about the $1 million dollar settlement. Apparently she received the results this weekend that she is positive for herpes simplex 2. Therefore, the plaintiff upped her damages demand to a whopping $40 million dollars. The money is for emotional harm, medical bills and punitive damages.

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