UPDATED: A Los Angeles Superior Court judge on Monday rejected a motion to end the heated legal battle over the mental competency and health care of Sumner Redstone, ordering a full trial in May into whether the media baron is capable of making decisions about his own care — and, by extension, about his business empire.
The ruling by Judge David J. Cowan is a victory for Manuela Herzer, Redstone’s longtime companion, who went to court three months ago seeking reinstatement as Redstone’s health care agent and to have him declared mentally unfit to care for himself.
Redstone recently stepped down as chairman of Viacom and CBS.
In his 21-page ruling, Cowan said a trial was necessary because “there are numerous factual disputes” that had to be settled, which could result in reinstatement of Herzer’s oversight of Redstone’s care, more than four months after she was thrown out of the magnate’s Beverly Park mansion.
The judge also said it was not clear that the care of Redstone, 92, was receiving proper oversight from either his daughter, Shari, or Viacom CEO Philippe Dauman, who replaced Herzer as Redstone’s health care agent in October. Cowan said in his ruling that he found it “perplexing” that Redstone had entrusted his ultimate health care decisions – in the event he became incapacitated – to corporate officials on the East Coast.
A December agreement that gives daughter Shari Redstone some input into medical decisions for her father did not make the judge feel any better. A fraught family history, with repeated bickering over many years, “does not give the court confidence that things are all as ‘patched up’ as claimed – even if improved since Herzer’s depature,” the judge wrote. “It has to be an unusual situation where a parent still at this late date puts East Coast business colleagues ahead of an adult child, or for that matter adult grandchildren, in terms of his care.”
The judge also questioned how Viacom boss Dauman, “in charge of a public company in New York, has the time or ability to look after Redstone even assuming his best intentions.”
In his opinion, Cowan also wondered how Shari Redstone and Dauman could work together in her father’s best interest when they have been bickering publicly over Dauman’s continued tenure at the head of Viacom. Recently Shari Redstone was the lone Viacom board member to vote to oust Dauman from the top of the company. “The court does not know if, with those seemingly strained relations, they can or do work together on the pressing issue of (Sumner) Redstone’s present medical needs,” Cowan wrote.
Added the judge: “What is more apparent is that nobody is sufficiently in charge of the ongoing care Redstone needs, again whether he does or does not have capacity.”
Redstone’s lawyers had asked Judge Cowan to throw out the case filed three months ago by Herzer, 52. They said declarations to the court from Redstone doctor Richard Gold made it clear that the one-time CBS and Viacom chief was mentally capable of guiding his own care. They accused Herzer of being motivated solely by a desire to be reinstated in Redstone’s estate; she had once been designated to receive $50 million and his $20 million home.
Redstone’s attorneys, from the firm of Loeb & Loeb, said the law allowed a primary care physician to make determinations about mental competency, which should not be questioned, except in the most extreme circumstances. But Judge Cowan rejected that argument, writing in his opinion that the law “does not state that a primary care physician’s capacity determination is conclusive in a judicial proceeding.”
Herzer’s lawyers suggested in their original November filing that Redstone was a “living ghost,” who needed a court to intervene to restore Herzer as his health care overseer.
Judge Cowan did not rule on Redstone’s mental state. But he seemed moved in his opinion by a 37-page report written by a geriatric psychiatrist hired by Herzer to examine Redstone. Dr. Stephen L. Read found that Redstone lacked mental capacity to make his own decisions both now and in October, when Herzer was thrown out of Redstone’s home.
“This report provides considerable factual details, which are part of the record,” Cowan wrote, “sufficient to raise a reasonable question about whether Redstone lacks capacity.”
It appeared Redstone’s bid for an early dismissal of the case was also harmed by the fact that his own doctor, Gold, initially said in a declaration that he was not sure what his responsibilities were in relation to Redstone’s Advance Health Care Directive. The fact that Gold felt it necessary to consult with a neurologist “shows that Redstone’s mental status is not as clear as it could be,” the judge wrote.
Cowan also briefly addressed motions by three news outlets — Variety, the Hollywood Reporter and the Los Angeles Times – to open to the public documents in the case that have been sealed. While the media want the documents opened immediately, Cowan told them Monday that there were “very significant” questions about Redstone’s privacy that need to be addressed. He suggested in his written decision that documents would be opened or closed one by one, not wholesale. He set March 18 for a hearing on the matter.
Herzer lawyer Pierce O’Donnell called the judge’s ruling a “victory” for Redstone, saying the nonagenarian had essentially been “brainwashed” and “kidnapped” in his home — with nurses, Shari Redstone and Dauman not looking out for his best interests.
Redstone’s lawyers have rejected the conspiracy allegations as ludicrous. The magnate’s attorney, Gabrielle Vidal, issued a statement after Monday’s hearing saying that the preliminary ruling was not a significant setback. “It does not change the fact that Ms. Herzer’s motives are purely financial,” Vidal said. “We are confident that when the Court has evaluated the evidence it will determine that Mr. Redstone had capacity to change his health care directive and that Ms. Herzer should have no role in his life whatsoever.”
Cowan said in his ruling that his “primary task at trial,” now set to begin May 6, will be to determine which of the competing doctors give the most accurate representation of Redstone’s mental state.
The judge said it was unfortunate that Redstone, who suffers from a severe speech impediment, has not been able to speak for himself in the case. “A lot of things have been said about what Mr. Redstone wants,” Cowan said in court. “Unfortunately, we have no declaration from him. I have no evidence…This case is unusual also in that the person we are all concerned about is mute.”
Reflecting the complicated nature of the proceeding, though, Cowan said it remained unclear — even if he eventually determined that the Advance Health Care Directive naming Herzer is still operative — whether that would mean her return to the billionaire’s life.
“What role she would have, if any, will be an issue the court will have to address at trial,” Cowan wrote. “Though it would not necessarily entail Herzer returns [sic] to Redstone’s home, the court recognizes the situation is not so simple.”
Shari Redstone was in the courtroom Monday and though she did not address the judge, she later released a statement calling Herzer’s statements alleging financial motivations by her and other family members “a new low.”
“The family has no financial interest in the case and always understood and supported Sumner’s plan to honor his legacy by leaving his estate largely to charity,” the younger Redstone said, adding that the family had already been provided for in its holdings in the family’s National Amusements, Inc. She also noted that, in one of his last directives, Sumner Redstone appeared to ask for his daughter’s increased involvement in overseeing his medical care, “which is reflective of the strong relationship that exists between Shari and her father.”