Now, in the high-stakes battle over the mental competence of
Viacom Inc <VIAB.O> Executive Chairman Sumner Redstone, the two
doctors are on opposite sides.
At issue in a Los Angeles County probate court is whether the
92-year-old media mogul knew what he was doing when he changed a
document known as an advance healthcare directive, removing
ex-girlfriend Manuela Herzer as his designated agent and
installing Viacom Chief Executive Philippe Dauman.
Read, in a declaration filed on behalf of Herzer, says no; Spar,
hired by Redstone, says yes. Their opinions are playing to at
least two audiences: The judge who may make a legal
determination of the billionaire's mental state, as well as
investors, some of whom have questioned whether Redstone, who
owns about 80 percent of the voting shares of Viacom and CBS <CBS.N>,
is a capable corporate steward.
The doctors declined to comment for this article.
That Read and Spar, two respected and similarly trained
specialists in geriatric psychiatry, could come to such
different views illustrates the intrinsic challenge in
evaluations of mental capacity, experts said.
Doctors’ assessments can vary because they work from different
sources of information. In Redstone’s case, Spar examined
Redstone several times in person, while Read based his opinion
on reports from Herzer and other witnesses.
Herzer asked the court to allow Read to examine Redstone in
person and her lawyers asked to depose Redstone. The judge
rejected the requests, citing Redstone’s privacy and dignity;
Herzer has appealed.
The law requires the court to presume Redstone is competent,
putting the burden of proof on Herzer. The judge may use the
doctors' evaluations, as well as other testimony, to decide if
the case should proceed.
A variety of factors can affect the assessment of mental
capacity, such as the time of day, said Dr. Daniel Plotkin, an
expert in geriatric psychiatry who co-wrote a forthcoming
research paper with Spar. A person may appear perfectly capable
at one hour, only to seem befuddled later on, he said.
“It can be very difficult to determine,” said Plotkin, who has
worked on hundreds of competency cases.
The Redstone controversy began last fall when Herzer was thrown
off his advance healthcare directive and escorted out of his
sprawling hilltop estate. She sued, contending the mogul was in
no position to make such decisions.
The suit focuses on Redstone's alleged mental decline and it
suggests that this may have made him susceptible to undue
It portrays Redstone as a “living ghost” who communicates in
grunts and is obsessed with having sex and with eating steak,
even though he is on a feeding tube and no longer able to chew
or even swallow his own saliva.
Redstone is no longer able to write, his signature "almost a
straight line, appearing as if someone moved the paper under his
pen," Read said in a court declaration.
"In my professional opinion," he wrote, "Mr. Redstone lacked the
mental capacity to make a change in his appointed health care
Redstone’s lawyers declined to comment. In court filings, they
acknowledge Redstone has a speech problem but insist he knew
exactly what he was doing when he changed his healthcare
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The company and CEO Dauman declined to comment for this article,
according to a Viacom spokesman.
Spar said in a supporting declaration that, based on his evaluation
on the day of the advance directive change, Redstone "retained the
capacity" to execute the document and that it "appeared to reflect
his own, authentic wishes, and not the influence of his staff
members, or anyone else."
Redstone's lawyers' say in the filings that the salacious nature of
Herzer’s claims demonstrate her lack of concern for Redstone’s well
being, and show she is out for personal gain.
Herzer’s attorney, Pierce O’Donnell, said his client is concerned
only for Redstone’s health.
“It’s not about money,” he said.
SCORES OF CASES
Redstone’s advance healthcare directive makes his personal
physician, internist Richard Gold, responsible for gauging whether
he can manage his own care or whether his designated agent should
take over, court filings show.
Gold visits Redstone two or three times a week and said in a court
declaration that Redstone was getting “exceptional medical and
personal care” under the media executive’s “own direction.” He
declined to comment for this article.
Read and Spar have each been hired as experts in hundreds of cases.
Two years ago, Spar was a key witness in the suit over the sale of
the Clippers, testifying that Donald Sterling lacked the mental
capacity to override his wife Shelly’s decision to sell the team.
Read, also hired by Shelly Sterling, backed Spar up. The judge
agreed and allowed the sale.
The ranks of geriatric psychiatrists are thin, and the specialty is
outmatched by burgeoning demand, said Dr. Gary Small, who directs
the geriatric psychiatry division at UCLA’s David Geffen School of
Medicine, where both Read and Spar teach.
"There are not a lot of people around, so there are going to be a
few stars, and they are going to be called upon a lot," he said.
Redstone's motion to dismiss Herzer’s suit is set for hearing on
Feb. 8. Herzer’s lawyers deposed Spar and Gold last week.
O'Donnell, the lawyer for Herzer, said that Spar evaluated Redstone
at least four times: Twice in 2014, once last September and again on
the day in October when Redstone removed Herzer from his healthcare
"He’s a very fine doctor but he’s not infallible,” said O’Donnell,
who hired Spar in the Sterling case. “We believe he got it wrong
O'Donnell may try to demonstrate that Spar’s last evaluation of
Redstone differed in some way from his previous exams, using any
variation to cast doubt on his opinion, said Keith A. Davidson, a
probate lawyer who teaches at Chapman University and who is not
involved in the case.
If the judge declines to dismiss, Herzer's lawyers could try to
force Redstone to submit to a deposition, putting pressure on him to
settle, Davidson said.
(Reporting by Dan Levine in San Francisco and Lisa Richwine in Los
Angeles; Editing by Peter Henderson and Lisa Girion)
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