UPDATED: A judge overseeing the court battle over who should control Sumner Redstone’s medical care ruled Friday that the 92-year-old magnate will not be forced to sit for a deposition, but that a psychiatrist representing his one-time companion should be able to examine him to determine his mental capacity.
Redstone’s ability to make decisions about his own care has been at issue since late November, when his one-time lover, Herzer, went to court to contest her removal as the corporate titan’s health care agent.
She contended that she had been forced out of Redstone’s life by people around him at a time when he was not competent to make such a decision. Lawyers for Redstone, chairman of both Viacom and CBS, said that Herzer only wanted to regain her post as health care advocate to position herself for an eventual fight over Redstone’s estate.
Superior Court Judge David J. Cowan will rule next month on a motion to dismiss Herzer’s action. But, first, he said he would allow the former companion’s expert a chance to examine Redstone. The one-hour examination will take place in the next 10 days, while an expert psychiatrist chosen by Redstone’s lawyers will also be allowed to review his condition.
“Redstone having to testify at a deposition is inconsistent with what a person his age and condition should have to undergo,” Cowan said in his ruling. “On the other hand, in order that there can be no question about the fairness or the evidentiary basis for the final decision on this petition (which may have collateral consequences beyond this case), each psychiatrist should have a similar opportunity to personally evaluate Redstone — where this case may rest in large part on their medical opinions.”
Herzer’s review will be conducted by Dr. Stephen Read, a psychiatrist who previously declared that Redstone was not competent at the time he removed Herzer as health care agent, in the fall. That earlier finding came without Read examining the corporate chief.
In Friday’s ruling, Cowan affirmed his earlier stance blocking a Redstone deposition but reversed his previous stance, also blocking an examination by Dr. Read.
He doubted the need for lawyers to depose Redstone for multiple reasons, including that the sickly corporate boss suffers from a severe speech impairment that could make his testimony difficult to comprehend.
Cowan said he reconsidered and would allow Read to meet with Redstone for an hour because the opinions of the billionaire’s regular doctor, Ronald Gold, did not provide adequate information about the patient’s medical abilities. Gold had conceded in his own deposition that, despite previous statements, he did not have the expertise to judge Redstone’s mental capacity, particularly in October, when the billionaire’s caretakers forced Herzer out of his mansion.
The judge said the ruling forced him into a difficult balancing act. He cited Redstone’s right to privacy and to avoid public embarrassment, on the one hand, against Herzer’s right to have enough evidence to argue her claim that she was improperly pushed out of the nonagenarian’s life.
“The Court balances Herzer’s need for information so she can present her side of the facts,” Cowan wrote, “with the interests of Redstone in his privacy and dignity as to his health care.”
The judge said he would not wade into the broader issues of Herzer or Redstone’s motivations, noting that the health care agent overseeing his needs is now Viacom CEO Phillipe Dauman.
“It is at least conceivable that Herzer might care about Redstone’s health care, even if she also has a personal financial incentive for the Court to find Redstone lacked capacity on October 16, 2015,” Cowan opined. “Also, Redstone has not yet addressed the counter-intuitive notion as to why someone would prefer to have a person across the country care for one’s medical needs in time of emergency as opposed to someone, if not in one’s home was at least in close proximity.”
Lawyers on both sides of the case claimed victory Friday.
“We are gratified that the Court continues to reject Ms. Herzer’s increasingly desperate and disingenuous attempts to depose Mr. Redstone,” said Gabrielle Vidal, the attorney for the firm of Loeb & Loeb, who is representing the billionaire.
Herzer’s attorney, Pierce O’Donnell, called himself “gratified” by the ruling, saying it “assures our client has a fair opportunity to prove that her beloved Sumner was not competent when the attorneys had him remove her as his health caregiver.” O’Donnell added that the ruling is a milestone toward Herzer fulfilling her promise “to care for and protect him for the rest of his life.”