By Lisa Richwine and Dan Levine
(Reuters) - Doctors Stephen Read and James Spar are collaborators on a chapter of a forthcoming psychiatry textbook, colleagues at UCLA's medical school and go-to court experts on the evaluation of mental fitness in the elderly. In the 2014 fight over whether owner Donald Sterling was fit to decide the fate of the Los Angeles Clippers basketball team, the two psychiatrists agreed that he was not.
Now, in the high-stakes battle over the mental competence of Viacom Inc (O:VIAB) 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 (N:CBS), 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.
ESCORTED OUT
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 influence.
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 agent."
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 directive.
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 directive.
"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 here."
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.
