5:18pm PT by Eriq Gardner
Sumner Redstone's Ex Wants Appeals Court to Intervene in Health Dispute
A California appeals court has been asked to weigh in on a heated dispute over the mental condition of 92-year-old Viacom and CBS Corp. executive chairman Sumner Redstone.
Manuela Herzer, who was thrown out of Redstone's home in October, is suing for restoration of her role as the one to make primary decisions about the executive's health care. That responsibility has now been given to Viacom CEO Philippe Dauman. In response to a lawsuit asserting Redstone is a "a living ghost," his lawyers have slammed Herzer for spreading "lies," and painted the allegations as financially motivated.
Represented by Pierce O'Donnell and Bert Fields, Herzer has been unsuccessful thus far in having her own doctors examine Redstone, so on Monday she aimed to get California's second appellate district interested by filing a writ petition. According to the court papers, the issue being presented is: "Where a prima facie case has been made, can a court determine that a person has capacity to make health care decisions without hearing directly from that person?"
Herzer wants Redstone to be deposed and have her own doctors make their own conclusions about his condition in advance of a judge's upcoming decision whether or not to dismiss her bid to be reappointed his health care agent.
Her attorneys believe that in the judge's attempt to balance Redstone's privacy with Herzer's due process rights, an error in applying legal standards was made.
"Ms. Herzer should not be required to litigate with one hand behind her back," states her new petition. "If the adversarial search for truth means anything, there must be a level playing field and the ability of both parties to have equal access to the critical facts upon which the controversy will be decided."
The gambit amounts to a long shot as appeals courts infrequently grant a writ of this nature, but Herzer is intent on asserting pressure any way she can in advance of the dismissal hearing currently scheduled for Feb. 8. She's now telling a California appellate court this is an issue of "first impression," meaning a first-of-its-kind case that will determine an important legal issue.
Regardless of whether a California appeals court elects to intervene, Herzer will get to depose Redstone's doctors after a judge lifted a stay on discovery. There is less uncertainty whether she'll also be able to depose Dauman, who previously reported to a court that Redstone was "engaged and attentive" during a home visit. The CEO was barely mentioned in Redstone's motion to dismiss. Nevertheless, Herzer's lawyers have noticed Dauman's deposition with an eye towards having it done on Jan. 26 in New York.
In lifting the stay on discovery, a judge noted that he didn't know if Dauman "is subject to an order for deposition," perhaps reserving that controversy for another day. Viacom hasn't yet indicated whether he will submit to questioning under oath. Dauman could attempt to quash a subpoena.