(concurring and dissenting). I concur in the majority's conclusion that it is within the circuit court's equitable powers to order the defendant in an appropriate case to submit to an AIDS test. I dissent from the court's decision to order the test in this case because I believe that the case should be remanded to the circuit court for the exercise of its equitable and discretionary powers. It is inappropriate for this court to exercise the circuit court's powers.
In determining whether to order a defendant to submit to an AIDS test, the circuit court must determine whether the evidence obtained would be relevant. A determination of the relevancy of the test in this case is within the discretion of the circuit court, reviewable by this court under the erroneous exercise of discretion standard. In making this determination the circuit court should hear expert testimony of up-to-date medical knowledge about AIDS and should not rely simply on secondary legal sources as the majority does here. With the proper medical information, the circuit court may conclude that the evidence is not relevant in this case because the defendant's test will have little, if any, probative effect.
On the basis of the secondary legal sources about AIDS, the relevance of testing the defendant in this case may be questioned for two reasons. First, in the six years since the defendant bit the plaintiff, the plaintiff has apparently tested negative for the HIV virus. The great weight of scientific evidence indicates that a person infected with HIV will develop antibodies and test posi*814tive within six months of the infection.1 Furthermore, the likelihood of transmission by biting is minimal.2 Thus, the likelihood that the plaintiff was infected by the defendant is remote.3
Second, testing the defendant will add little, if anything to the results of the plaintiffs tests. If the defendant tests positive, it will be impossible to determine whether the defendant became infected since biting the plaintiff or was infected at the time of the biting. If the defendant was infected at the time of the bite, it is likely, because of the plaintiffs negative test result and the minimal likelihood of transmission by biting, that she failed to transmit the virus to the plaintiff. On the other hand, if the defendant tests negative, a negative test *815result tells the plaintiff nothing more than the plaintiffs own negative test result.
In determining whether to order the test, the circuit court should also consider the stigma attached to HIV infection. Unjustified fears about transmission of AIDS have caused our society to discriminate against persons who have, or are suspected of having, AIDS. The legislature has recognized the seriousness of this problem. In light of the legislative policy evidenced in the statutes, a court should be reluctant to require testing or to divulge an individual's HIV status when such actions may subject that person to the unfortunate consequences of being labelled "an AIDS carrier." This caution to proceed with reluctance may not be warranted in this case, however. Since the defendant labelled herself as HIV infected by declaring that she "had AIDS," a court-ordered test can disclose no information about her HIV positive status that she has not volunteered.
Because these are matters for the circuit court, I would remand the case.
I am authorized to state that Chief Justice NATHAN S. Heffernan joins this opinion.
AIDS and the Law at 35; AIDS Practice Manual at 2-13; Barlow v. Ground, 943 F.2d 1132 (9th Cir. 1991); Glover v. Eastern Neb. Com. Office of Retardation, 867 F.2d 461 (8th Cir. 1989); Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 267 Cal. Reporter 666 (Ct. App. 1990).
I acknowledge that some legal writing indicates that a person could become infected and fail to test positive within the six-month period. See Herman and Schurgin, Legal Aspects of AIDS, § 1.30 (1991).