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Encarnacion Was Sued After He Refused to Get Tested for STDs, Plaintiff's Lawyer Tells VICE Sports

We talked to Robert Hiltzik, the lawyer of the woman suing Edwin Encarnacion, and a sports attorney about the lawsuit filed against the Blue Jays slugger.
Photo by John E. Sokolowski-USA TODAY Sports

The case against Edwin Encarnacion is a sordid saga, describing who allegedly did what with whom and when, the details filling a 22-page document filed this week in a New York district court.

In that regard, it is similar to cases involving such celebrities as football players Michael Vick and Cam Thomas, and actor Robin Williams. Like Encarnacion, they were sued for allegedly infecting partners with sexually transmitted diseases at a time when they knew they themselves were infected.


In the Encarnacion case, New York model Ashley Lebron says the Blue Jays star knew he had two STDs when they had unprotected sex three times in February after he invited her to visit him at his home in the Dominican Republic. As a result, she says, she contracted genital herpes—an incurable STD requiring ongoing medication—and chlamydia.

READ MORE: Edwin Encarnacion's Agent Calls STD Lawsuit 'Meritless'

Lebron is suing Encarnacion for $11.5 million because he refused her request to get tested for STDs and produce the results for the benefit of everyone involved, including their past and future sexual partners, says her lawyer, Robert Hiltzik.

"All we wanted was for him to get tested, and we were rebuffed," Hiltzik told VICE Sports in a telephone interview. "My client's request certainly wasn't unreasonable."

In a statement released earlier this week, Encarnacion's agent Paul Kinzer called the lawsuit "completely inappropriate and meritless," and said the player "will take every legal measure to defend himself against this frivolous claim, and will bring appropriate claims in the appropriate forums against all of the individuals seeking to exploit his financial position."

Emotionally, Lebron "is a wreck," Hiltzik said. She believes she deserves compensation but she also knows some observers will accuse her of trying to fleece a wealthy athlete of his money.

"Who wants to go through this? The public sentiment is sometimes with her and sometimes against her," Hiltzik said.


However, he added, "It's like any other personal injury. She's been injured permanently. This is something she is going to have to live with for the rest of her life. When you inflict an injury on somebody, you're subject to liabilities. We'll let the jury decide what, if anything, she's entitled to."


Among other things, the lawsuit against Encarnacion presents a salacious peek into the private life of a rich and famous athlete and one of his Blue Jays teammates, who is unnamed in the lawsuit. Few will be surprised that the details include sex, marijuana and lots of alcohol.

None of the foregoing would be particularly remarkable except for Lebron's allegation that her fun with a prominent athlete took an ugly turn that shattered her life.

A three-time All-Star, Encarnacion has reached the 30-homer mark in five consecutive seasons. Photo by Kevin Sousa-USA TODAY Sports

Encarnacion has 21 days to respond after being served with the lawsuit. His defence team will try to bring the case to a quick conclusion by filing a motion for dismissal, asserting that the New York federal court lacks jurisdiction over events that took place in the Dominican Republic.

"Typically, courts in the U.S. don't hear cases that involve actions that took place outside of the United States," said sports attorney Dan Werly, editor of The White Bronco and a frequent media commentator on sports-related legal matters.

Werly said in an interview that he expects the case to be dismissed for that reason. If the dismissal motion prevails, Encarnacion would not have to answer Lebron's allegations—at least not in a U.S. court.


"Our argument is we have jurisdiction where we filed," Hiltzik said. "The details will be presented based on the law and the facts."

He said he expects Encarnacion's defence team to file a dismissal motion within five to seven weeks, with a decision handed down about six months later. The side that loses will likely appeal, Hiltzik said.


The court documents say Lebron, 24, was diagnosed with the two STDs at a New York hospital soon after having sex with Encarnacion. The success of her lawsuit, if it proceeds, would likely hinge on whether proof exists that Encarnacion knew he was infected before he infected her.

Werly, a sports attorney who is not involved in this case, said it's possible Lebron could seek proof via subpoenas for Encarnacion's health records or by calling Encarnacion's previous sexual partners to testify.

The burden of proof is on Lebron. Her lawsuit accuses Encarnacion of battery, which means he infected her with intent, Werly said. It also accuses him of negligence, which means he knew or should have known he might infect her through unprotected sex.

"If he didn't know, and shouldn't have reason to have known, or if she can't demonstrate that, then he didn't do anything wrong," Werly said.

According to the court filing, Lebron said she contacted Encarnacion after her diagnosis and urged him to get checked for STDs. She says he replied that he was "clean" and had "papers" to prove it. Later, when she persisted in questioning him about being tested, his replies became vague, she says. Then they stopped talking altogether.


"He shut her out," Hiltzik said.

The lawsuit says doctors at a New York hospital told Lebron that she "most likely contracted herpes from her last partner, which was Encarnacion."

Lawsuits involving public figures like Encarnacion typically begin this way. The public hears one side of the story because only the accusations are laid out in a public document. The defendant cries foul and says he will fight. The details of his defence may come out later.

Perhaps they never will. Such cases are often quietly settled out of court, the truth buried, the terms undisclosed, except that neither side admits anything and both parties agree not to talk about it in public. That's what happened in the Vick and Williams cases.

Occasionally, however, such cases go to trial and the complainant wins a large settlement. In 2011, a California millionaire had to pay $6.75 million to an ex-girlfriend he infected with herpes.

"Usually," Werly said, "these cases involve people that have deep pockets."

Encarnacion, one of the most proficient power hitters in the majors, is making $10 million this year. As an imminent free agent, he will make a lot more next season.


Encarnacion is not accused of a crime. This is a civil case. If it is successful, Lebron would be awarded damages—money to compensate her for what the lawsuit calls "physical, psychological and economic injuries." She wants at least $1.5 million in compensatory damages, plus at least $10 million in punitive damages because, she alleges, Encarnacion's actions were "wanton and malicious."

The standard of proof in a civil case is lower than in a criminal case. In a criminal case, a judge or jury must be convinced beyond a reasonable doubt before making a finding of guilt. In a civil action, the standard of proof is called "balance of probabilities." If a judge or jury believes it is more likely than not that a defendant caused damage to a complainant, the complainant wins. If the evidence is seen to shift the scale even slightly in favour of the defendant, the complainant loses.


Encarnacion, a free agent at the end of the season, is in line for a massive payday. Photo by Mark J. Rebilas-USA TODAY Sports

Lebron is seeking a jury trial, but the proceedings may never get that far. If the case is not dismissed for jurisdictional reasons, an out-of-court settlement seems more likely. The pretrial discovery process is typically long, tedious and expensive, involving detailed depositions from witnesses.

The court documents in this case suggest many witnesses could be deposed, including friends and relatives of both Lebron and Encarnacion who are named in the lawsuit.

Although the two first met in 2013, Encarnacion grew up near the home of Lebron's aunt in the Dominican Republic. Certain members of both families have long been friends.

"The families have known each other for years," Hiltzik said. "It wasn't her intention to hurt him. But she needs information and it wasn't forthcoming."


If the case reaches the deposition stage, it's unclear whether the witness list would include the mystery Blue Jays teammate referred to in the lawsuit. (Throughout the court documents, he is referred to only as "the Teammate.")

According to the lawsuit, Encarnacion introduced Lebron to the teammate after arranging to get tickets for her and several friends to a Blue Jays game in New York last September. Later that month, the lawsuit says, the teammate invited Lebron to Baltimore, where the Jays clinched the division championship.

During Lebron's visit to Baltimore, the lawsuit alleges, she and a female friend partied several times with Encarnacion and his teammate. Lebron and the unidentified teammate drank cognac and smoked marijuana, and on three occasions had protected sex, the lawsuit says.


Lebron says she tested negative for STDs between the time she had sex with the teammate and her sexual encounters with Encarnacion.

In February, when Lebron visited the Dominican Republic and became sexually involved with Encarnacion, she told him she'd had sex with his teammate in September, the court document says.

Encarnacion's reply, according to the court filing: Don't tell my teammate that we had sex, too.

As a result of the family friendships, the lawsuit says, Lebron trusted him to be honest with her and tell her he had STDs. Their sex was consensual, but consent "was obtained by fraud," the suit alleges.

Encarnacion refuses to talk about the case. The Blue Jays are taking the same stance.

"That's a very personal issue that I'm not going to get involved in," general manager Ross Atkins said Tuesday. "He's been a great teammate, a great person to work with. We fully support Edwin, and we'll continue to."