November 21, 2012 9:43am PT by Eriq Gardner
'NCIS' Creator's 'Severe Brain Condition' Becomes Issue in CBS Lawsuit (Exclusive)
One of Hollywood's most high-stakes legal disputes has taken a turn toward the macabre.
Donald Bellisario, the 77-year-old legendary creator of two of CBS' biggest hits, NCIS and JAG, is suffering from hydrocephalus, a neurological condition known as "water on the brain." According to Bellisario's doctor, in the past year, the TV legend has suffered memory loss, disorientation, unsteadiness and lack of coordination.
On Jan. 14, Bellisario is scheduled to go to trial against CBS in a major lawsuit that contends he's been cheated out of revenue from NCIS: Los Angeles -- which he alleges is a spinoff of his NCIS and JAG -- because his contracts with CBS and predecessor Paramount Television entitle him to either a "first opportunity" to work on any spinoffs or receive millions in payments. The case is a very big deal for the network. Bellisario has been compensated to the tune of $116 million already, according to court documents, and he alleges in the lawsuit that he's owed many tens of millions of dollars more in revenue he would have earned from working on the hit series.
But now that Bellisario has revealed a serious brain condition, CBS wants an emergency trial continuance and is attempting to subpoena Bellisario's medical records and depose his physicians. The network, to put it simply, wishes to investigate whether the man who executive produced such classic shows as Magnum P.I. and Quantum Leap would have been medically fit to be the showrunner of a hit network drama, as he argues was his contractual right.
On Aug. 17, two weeks after CBS lawyers were told about Bellisario's condition, he underwent surgery to insert an implant into his skull to draw liquid away from his brain. Bellisario's doctor advised that the surgery typically had a 75 percent success rate, but he implied that his chances actually were lower because the procedure typically is performed on young children, not men of Bellisario's age.
In legal papers, CBS now asks:
"How long has Bellisario been suffering from this severe brain condition or other severe medical conditions? Are those conditions debilitating? When would they have become debilitating? Would this severe brain condition have prevented Bellisario from adequately performing his duties and responsibilities as showrunner, executive producer and writer of NCIS: Los Angeles? And when would that have occurred?"
Last month, Bellisario asked the court for an expedited trial and gave the judge a declaration from his physician. (Read the papers.) CBS didn't oppose the motion, but on Nov. 1, Los Angeles Superior Court Judge Gregory Alarcon denied it anyway. The judge ruled that he didn't have sufficient medical testimony to make the timing of the trial a top priority. Alarcon wrote, "The testimony is too vague for the Court to ascertain Bellisario's [surgical] success rate, which could theoretically range from 1% to 74%."
Just a few days before the judge made his decision, CBS served subpoenas on three of Bellisario's treating physicians.
In response to requests for documents and depositions, one of Bellisario's attorneys proposed to CBS' counsel a compromise whereby the network would be given records of Bellisario's hydrocephalus diagnosis. The attorney cautioned CBS' lawyer, "A person's medical records are as personal and private as they come, and I am sure that you would not want your medical records released (as I would not want mine released) if a client sued you for breach of contract. If our proposal is not acceptable, you will need to file a motion."
CBS rejected the proposed compromise and now is looking to delay the trial so it can gain more medical information. And Bellisario is seeking to torpedo the network's subpoena requests.
CBS' position is that Bellisario is "stonewalling" its attempts to obtain medical records and "trying to leverage Bellisario's medical condition in their own favor." (Read CBS' application for an order continuing the trial date.)
The network points to Bellisario's request for a quicker trial and says his refusal to detail more about his medical condition "can only be designed to prevent CBS from discovering evidence that Bellisario was, in fact, unable to perform as a showrunner, executive producer and writer for NCIS: LA during the 2008 [to] present time frame relevant to this litigation."
CBS adds that it is entitled to documents and testimony "relating to any medical condition -- including, not limited to, hydrocephalus" that might have prevented Bellisario from performing his services.
CBS previously had asserted that it didn't owe Bellisario any more money under the "first opportunity" provision of his contract because NCIS: Los Angeles was not a spinoff of JAG or NCIS. The network now appears to be building the additional defense that even if Bellisario contractually had the right to work on NCIS: Los Angeles, he wasn't physically capable of doing so. "The completion of this discovery is critical to CBS' case," the network's lead attorney Scott Edelman told the judge last week.
Jessica Kornberg, Bellisario's lawyer, responded in court by blasting CBS' moves as a "blatant attempt to harass, intimidate and burden" her client. Kornberg says the information being sought is protected by both constitutional privacy rights and the physician-patient privilege. (Read Bellisario's opposition papers.)
"With these subpoenas, CBS seeks not just to peek over the shoulders of Bellisario's physicians, it wants full and complete access to every document that is in any way related to Bellisario's health. Then, armed with these most personal and private documents, CBS will proceed to ask Bellisario's physicians to reveal further sensitive details -- moving from the doctor files into the examining room. And, of course, this would all be a prelude to the next phase of attack on Bellisario's privacy: CBS' demand for an independent medical examination of his body and mental capacity -- a demand CBS has already made and which is the subject of a separate discovery request."
CBS and Bellisario's lawyers declined to comment on their legal strategy.
UPDATE: A CBS rep says in a statement: "Mr. Bellisario's medical condition was raised for the first time in his own lawyers' public filings, not by CBS. We have never attempted to advance our position based on Mr. Bellisario's health, and any suggestion to the contrary is both regrettable and baseless."
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner