Sheryl Smith of Pennsylvania accused Andrew McGill Whelan of knowingly having herpes type 2 when they met in 2008. Instead of telling her he had the virus, she claims, he actually encouraged her to have unprotected sex with him, saying ‘there was no reason for us to use condoms’

In a decision that will surely disappoint poverty-stricken porn pariah Monica Foster, a federal appeals court has rejected a Pennsylvania woman’s lawsuit appeal against an ex-boyfriend she claims knowingly gave her herpes and then hid it from her for two years.

Sheryl Smith sued Andrew McGill Whelan in 2011. They met in May of 2008, and had two years of unprotected sex, according to court documents.

When the couple met, Smith claims, Whelan knew he had herpes type 2 after contracting it “many years” before, but despite this knowledge, he actually encouraged her to have unprotected sex with him, telling her “there was no reason for us to use condoms.”

It wasn’t until approximately five months after they had become sexually active that a trip to the gynecologist revealed the horrifying news.

Smith defended that she hadn’t been sexually active with anyone else since 2006 — two years before meeting Whelan — but when she confronted him about it he did not admit to having the virus.

Smith argues that it wasn’t until two years later, in June of 2010, that Whelan admitted for the first time to knowing he had had herpes all along.

Unfortunately for Smith, a federal judge in Delaware ruled last year that her claims of negligence and misrepresentation had passed their respective statutes of limitations.

The judge further argued that even if Whelan only admitted to having the virus for the first time in 2010, by the time of her diagnosis she should have had sufficient evidence to know it came from him and immediately press charges.

The judge ruled against her suit on those grounds, and a federal appeals panel in Philadelphia upheld that lower court’s ruling on Wednesday.

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