Family Says Mom's Job Caused Son's Cancer

By Jennifer Auther
(CNN)

Several lawsuits have been filed in Southern California alleging that former nuclear power plant workers unknowingly brought home radiation. Attorneys say that the positively charged fuel particles attached themselves to clothing.

The Rock family thinks Vicki Rock's former job at the plant caused her son's cancer.

Joshua Rock, 19, once dreamed of becoming a firefighter. But in 1994, Joshua learned that he had developed a rare form of Leukemia.

His mother, Vicki Rock, says she thinks she brought home cancer-causing radioactive particles from defective fuel rods at the San Onofre Nuclear Power Plant in California, where she worked 10 years ago. "My responsibility was to record and monitor exposure of other employees to radiation and to document that. I also inspected and repaired respirators," Rock said.

Dr. Harry Demopolis, a cancer origin expert, said the hazards of working in those conditions are sometimes underestimated. "It's like handling a spill of AIDS-infected blood. The toxic element was there," he said.

The Rock family is suing the San Onofre Nuclear Power Plant. But the vice president of the company that owns the plant, Southern California Edison, says that they are not responsible. "There's no way we could have harmed Joshua Rock," Dick Rosenblum said.

Although Vicki Rock has not been diagnosed with cancer, Dr. Demopolis will testify that by washing her clothes with the rest of the family's, she exposed them to radiation. He will say that is how Joshua got his rare form of leukemia. "The overwhelming cause of AML, acute myelogenous leukemia, is radiation," Demopolis said.

Don Howarth is representing Joshua Rock's family in the suit and he's filed at least five other lawsuits on behalf of former San Onofre workers. He'll argue that San Onofre workers in 1985 and 1986 carried home tiny radioactive particles called "fuel fleas."

"We have documented examples of them getting out of the plant during the '80s, onto somebody's carpet who worked in the plant; going off on somebody's shoe," Howarth said.

Rosenblum doesn't deny the claim, but he denies that the plant caused leukemia in families that have brought suits against the company. He says that San Onofre gets high marks from the Nuclear Regulatory Commission on radiation monitoring and on worker safety.

"In fact, we showed that (the NRC report) to a jury here a couple of months ago in a lawsuit we just completed and a jury unanimously voted for our side," Rosenblum said.

The Rock family suit will wait to go on trial after another suit against Southern California Edison is completed. The family expects Joshua's health to hold out till then.

Winning on Appeal

by Lois Romano
(Redbook)

Marcia Clark isn't the only lawyer out there who's smart, strong, and female. These legal eagles aren't afraid to use what comes naturally to a woman ... and it's working.

A few months ago you probably saw O.J. Simpson prosecutor Marcia Clark grill Brian "Kato" Kaelin into a sweat and reduce defense attorney F. Lee Bailey to a trembling fury. You re probably also familiar with lawyer Leslie Abramson, whose defense of Erik Menendez, who confessed with his brother to the murder of their parents, was so compelling that the trial ended in a hung jury.

When Abramson defended Menendez two years ago, she was one of few women to have achieved stardom in criminal law. But today some of the biggest names in criminal law—and civil litigation—belong to women. Although talented, ambitious women in other professions have had a tough time rising to the top, female lawyers have been landing more and more of the hot cases.

Their arrival in the forefront of the legal world is partly a result of numbers, Twenty-five percent of lawyers and 115 percent of law school students are women.

But unlike their counterparts of 20 years ago, many of today's experienced female lawyers are trusting what's often referred to as their female traits instead of copying those of male lawyers A number of these legal eagles believe that being a woman makes them particularly suited to practicing criminal and civil law, "Everything I am as a woman can work for me in the courtroom," says Suzelle Smith, a prominent Los Angeles litigator. "I have the advantage of having been better trained than my male colleagues in relating to people. It's easier for me to question a witness without being condescending, Juries pick up on the tone of your voice and your body language. The model of a shoot-‘em-up aggressive courtroom style as a surefire way to win is a myth. I make just as much headway being firm without being threatening."

Many female lawyers say they have also benefited from what could be called an outsiders mentality, which has kept them focused on their clients best interests and riot on what their male colleagues think of them, Victoria Toensing. The Washington. D.C. lawyer who recently negotiated a landmark discrimination case for a female client against the CIA. claims that male lawyers are too caught up in being one of the guys,"Women do not have a stake in perpetuating the old-boy network," she says, "because the old boys are never going to help them. This empowers women to go for the jugular. All men do is pat each other on the rear end --and this does nothing for the client."

If the old boys tend to look out for one another, some also like to play out their egos in the courtroom. When this happens, according to University of Pennsylvania law professor Loni Guinier, it can distract from the issues of a case, "F. Lee Bailey is the classic male lawyer who, with enormous bravado, keeps the attention on himself," she says. "Some cases cannot be won if the jury is diverted from the evidence by lawyer theatrics."

Guinier, who recently cowrote a study that examined the effect of her law schools teaching methods on female students, believes some women have a distinct advantage in the practice of courtroom law. "Many have been socialized to do well as listeners, to establish rapport, and to be caring interviewers," she says, "Since all lawyers are trained to be performers and aggressors, empathetic women can have an advantage over those who have learned how to talk, but not how to listen"

And when it comes to dress, today s high-powered female lawyers have to some extent rewritten the code. Gone are the mannish pinstripes and bow ties. Now they wear bright, stylish suits and dresses that they believe send a positive message to the judge and jury. Nancy Hollander, a criminal defense attorney in Albuquerque, New Mexico, says that when she faces off against male lawyers in blue suits, her feminine dresses "perk up jurors, and they pay more attention to what I have to say." Rikki Klieman. a Court TV anchor and longtime litigator, always wears white for her opening and closing statements, "It subliminally signals to the jury a certain purity, an innocence."

As women lawyers bring their own sensibilities to the profession. are the old boys running scared? Not exactly, but they are looking over their shoulders. As they should be. Because six women we talked to (and a good many others) are giving them a real run for their money in the courtroom.

The Right Touch

Suzelle Smith, half of the Los Angeles firm of Howarth & Smith, wins multi-million-dollar settlements for her clients by unabashedly playing the gender card. In a successful 1988 damage suit brought against a shopping mall from which a 26-year-old woman was abducted, raped, and later murdered, the civil litigator bet on a strategy that would make the jury identify her with the slain woman. A key move was to seat herself alone at the attorney's table and place her clients—the victim's parents and husband—behind her in the public seats.

When she recently represented workers at a nuclear plant who claimed to be contaminated by radiation, she relied on her experience as a mother.

"In legal circles, it's said that a lawyer should talk to a jury as if it were a class of sixth graders," she says. "That's not meant as an insult. The fact is juries have to deal with issues and technicalities of which they have little or no knowledge. Complex cases have to be broken down into their components—even for judges. As a woman and the mother of a 5- and 8-year-old, I am used to teaching and explaining."

Smith has also found touching to be an effective tactic. "I will walk around an opposing lawyer and put my hands on his shoulder" explains the 41-year-old Birmingham, Alabama, native. "I am signaling the jury that I am in control of this situation, it works for me, but could backfire for a male lawyer because men are seen as predators. His touching me is viewed as a violation of my space."

Court Revisits The Last Days Of Doris Duke

By James C. McKinley, Jr,
(New York Times)

On April 5, 1993, the woman once called "the richest girl in the world" lay feverish and emaciated in a luxury hospital suite in Beverly Hills, suffering, of all things, from starvation.

Doris Duke, 80, the legendary tobacco heiress, looked more like a blond skeleton than the athletic debutante who had made her society debut in the 1930's at Buckingham Palace or the stately and private woman who only a few years before was socializing with Jacqueline Onassis and Imelda Marcos.

Her circle had shrunk to a few servants and a group of doctors and lawyers she had known only a short time. As she signed her last will that day with a shaky hand and turned her fortune over to her butler, not a single close friend or family member was present.

Her doctors and lawyers say they helped Miss Duke realize her final wish in a lifetime of unorthodox choices. The will gave control of her $1.2 billion fortune to her butler, Bernard Lafferty, a barely literate man with a drinking problem who had become Miss Duke's sole confidant.

But since her death October 28, 1993, Miss Duke's last will has been the center of a legal fight in Surrogate's Court in Manhattan and a criminal investigation in Los Angeles, tying up what Miss Duke intended to be a $1 billion fund for charity.

In the next few days, Surrogate Eve Preminger is expected to make the first in a series of crucial decisions that will determine who will run a charitable foundation that will rank among the nation's largest.

First she has to rule on whether Mr. Lafferty is responsible enough to be executor. Then she has to decide whether one of Miss Duke's former physicians has legal standing to challenge the will. Finally, the Surrogate has to decide whether to validate the final will -- and whether Miss Duke was coerced into signing it.

Several people who were named executors in earlier wills have accused Mr. Lafferty, a soft-spoken man with a ponytail and a penchant for diamonds and Italian suits, of worming his way into Miss Duke's confidence while her mind was crippled. And in Los Angeles, the District Attorney is investigating allegations by one of Miss Duke's private nurses and one of her former doctors that the butler conspired with other doctors and lawyers to murder Miss Duke with a drug overdose.

Aside from the question of foul play, hospital records and court papers paint a disturbing portrait of Miss Duke at the end and raise serious questions of how much control she had over her decisions.

The records show she was taking several medicines -- antidepressants, painkillers, sleeping pills -- which at least three doctors have said in affidavits might have interfered with her thinking. Also, two former servants now say that Miss Duke was often dazed and confused in her last year.

Two weeks ago, a lawyer appointed by Surrogate Preminger to help sort out the battle concluded that Miss Duke's primary doctor, Charles F. Kivowitz, purposely cut her nutrition and hastened her death with a morphine overdose.

The lawyer, Richard H. Kuh, a former Manhattan prosecutor, also determined that her mental state was "questionable" when she signed the will. His report cited hospital records showing Miss Duke often had a mild drug-induced delirium.

Lawyers for Miss Duke's estate have challenged the Kuh report with reams of affidavits from friends and business associates attesting to her mental competency.

The stakes are high. If the will holds up, Mr. Lafferty will get a $5 million executor's fee plus $500,000 a year for the rest of his life. The law firm that drew up the final will, Katten, Muchin & Zavis of Chicago, has already billed the estate $13.5 million and stands to get millions more. Heiress Lonely, Suspicious And Reclusive

In interviews and court papers, Miss Duke's friends and former employees describe a lonely old woman who grew more and more isolated from others and dependent on Mr. Lafferty in her dotage. As her health declined, they said, her natural suspicion of people's motives grew, and she changed her will four times in the last three years of her life.

Ever since her father, James Buchanan Duke, told her on his deathbed to "trust no one," she had been suspicious of those around her -- many of whom were sycophants and fortune hunters, they said. Time and again, she had cut people off at the first sign of disloyalty.

"She once said to me that she often felt that whenever some people looked at her, they saw her face as a dollar bill," Annabelle Kenessy, an old friend from Hawaii, said in a court affidavit.

Miss Duke was born on Nov. 22, 1912, the only child of the American Tobacco Company president, who had built a $300 million fortune.

But her acquaintances say she craved the things money could not buy: talent, love, friends. She took jazz piano lessons religiously and studied dance until she was well into her 60's. She loved gospel music, rare animals and Islamic art. She kept a pair of camels on her 2,700-acre main residence, Duke Farms in Somerville, N.J.

Her money could never protect her from unhappiness; she had two failed marriages and several unsuccessful relationships. In 1940, she bore one child, who lived less than 24 hours. In 1966, Eduardo Tirella, an interior decorator who was a close friend, was killed in an accident when the car she was driving slammed him against a gate on Rough Point, the Newport estate.

As she grew older, she became more reclusive, dividing her time between homes in New York City, New Jersey, Beverly Hills and Hawaii.

It was in Hawaii, in early 1984, that Miss Duke met the woman who would eventually become the daughter she never had -- Chandi Heffner.

Ms. Heffner was a follower of Hare Krishna who had rejected her middle-class upbringing in Baltimore and was living on a communal farm when she was introduced to Miss Duke through a mutual friend. The two shared an interest in dance, Eastern philosophy and animals, Miss Duke's friends said. Before long, they became close.

In 1985, Ms. Heffner moved in with Miss Duke at Somerville. The next year, the heiress bought Ms. Heffner a $1.5 million horse ranch in Oahu. They traveled the world together at Miss Duke's expense.

"She always wanted a daughter," said Peggy Lee, the singer, a longtime friend of Miss Duke. "Chandi filled an empty spot in Miss Duke's life."

Ms. Heffner introduced Miss Duke to Bernard Lafferty, former employees said. Orphaned at 17, Mr. Lafferty had emigrated from Ireland to Philadelphia, where he worked in hotels and theaters. In the 1980's, he became a personal assistant to Miss Lee, who met him on a singing tour.

Little by little, Ms. Heffner took a bigger advisory role in Miss Duke's finances, Miss Duke's associates said. In 1987, she persuaded the heiress to dismiss her business manager and hire Irwin Bloom, a New York accountant. That year Miss Duke signed a will making Ms. Heffner executor. In 1988, the heiress adopted her as her only heir.

But the relationship between the women began to sour a year later when Ms. Heffner became romantically involved with one of Miss Duke's bodyguards, James Burns. "Chandi's loyalty became divided and Doris could never stand that," said Liz McConville, who served as Miss Duke's secretary for 18 years. "She had bought and paid for Chandi 100 percent."

Soon Ms. Heffner began to alienate many servants, including Mr. Lafferty, with bossy demands, some of Miss Duke's associates say. "The day after the adoption she changed and became the little tyrant she really is," said Colin Shanley, who said he quit as Miss Duke's cook in 1989 because of Ms. Heffner. He and Ann Bostich, a housekeeper for Miss Duke in Beverly Hills from 1989 until her death, have sued the estate, charging breach of contract.

By February 1991, Miss Duke's disenchantment with Ms. Heffner peaked. She ordered her lawyer to tell Ms. Heffner to get out. They never saw each other again.

Ms. Heffner declined a request to be interviewed for this article. After suing three times, she reached a $65 million settlement with the Duke Estate last month. Part of the agreement is that she not talk about Miss Duke's life, her lawyers said. Staff Ex-Servants Accuse a Butler

Mr. Shanley, the cook, came back to work for Miss Duke in March 1991; he says he hardly recognized her. In 1989, she had been a vibrant older woman who swam laps every day, but now she looked emaciated and pale. Miss Duke told him she believed Ms. Heffner had poisoned her.

"She was frail, very frail," Mr. Shanley said in a recent interview.

Mr. Lafferty's role also changed after the falling out between Miss Duke and Ms. Heffner, Mr. Shanley and Ms. Bostich said. Before 1991, he had been a traditional butler, serving tea and answering doors. Now, they said, he gave orders to the staff and often said he spoke for Miss Duke.

Mr. Shanley said Mr. Lafferty began to isolate Miss Duke. He intercepted her calls, and friends and relatives said in interviews and affidavits that it became nearly impossible to reach her on the telephone.

"He made it clear that everyone had to go through him first to speak to Miss Duke about anything," Mr. Shanley said.

Mr. Lafferty declined a request to be interviewed for this article. In affidavits, he has denied having exerted any influence on Miss Duke's decisions.

Over the next 12 months, Miss Duke changed her will three times, court papers say. After meeting several times in the spring of 1991 with Dr. Harry B. Demopoulos, a diet specialist from Scarsdale, N.Y., who had treated her for a decade, she hired the law firm that represented the doctor and signed a new codicil naming him and Chemical Bank as co-executors. Dr. Demopoulos and the bank were to get $25 million each.

"She was definitely motivated by a fear that Chandi or Burns were going to harm her," recalled Suzelle Smith, a lawyer for Dr. Demopoulos. Miss Duke went so far as to have tests run on the food and sherry at Shangri-La, her house on the coast of Oahu, she said. No poison was found.

In November 1991, Miss Duke had a new will drafted that made Mr. Bloom, the accountant, the executor. After a trip to Vietnam and Thailand in April, 1992, she changed course again, signing another codicil that made Mr. Lafferty co-executor along with Walker Inman, her half-nephew and closest relative. She confided to friends during the trip that she no longer trusted Mr. Bloom, court papers say. Health Spending Sprees And Operations

Miss Duke's medical disasters started in April 1992, when she decided to have a facelift and asked her servants to seek out Dr. Harry A. Glassman, a well-known Hollywood surgeon. Two days after the operation in his office, she fell out of bed and broke her hip, her employees said. She was taken to Cedars-Sinai Medical Center in Los Angeles, where Dr. Glassman recommended she seek treatment from Dr. Kivowitz and an orthopedic surgeon, Barry M. Braiker.

That summer while she recovered, Dr. Kivowitz and Dr. Glassman started visiting her frequently at home, Ms. Bostich and Mr. Shanley said. The cook said the two doctors would arrive in the late afternoon and drink $100 bottles of Louis Roederer Cristal champagne with Miss Duke. She grew especially fond of Dr. Glassman, her friends said.

Sometime that fall, Miss Duke decided to have her arthritic knees replaced with artificial joints. She told friends she wanted to dance again. The surgery was done in January 1993, and Miss Duke went to Shangri-La, in Hawaii, to recover.

Mr. Shanley said Miss Duke "did not know where she was or what day it was" while they were in Hawaii. She took strong narcotics for pain -- Percodan and Demerol -- plus several sleeping medicines and anti-depressants, court papers said. She also drank wine daily, and took laxatives to stay thin, her servants said.

By late February, she had become so malnourished and dehydrated that her life was in danger, court papers say. She flew back to Los Angeles and was admitted to Cedars-Sinai.

Her nurses noted she was intermittently disoriented and confused, sometimes hallucinating that she was in a noisy apartment in Brooklyn.

A staff neurologist, Dr. Clarke D. Espy, examined her on March 2 and said in his report that she suffered from a mild delirium "possibly exacerbated" by prescription drugs. He said later in an affidavit that once she was taken off certain medications, her mental state improved. Hospital records for the days on which she later signed documents suggest she was alert and oriented.

Whatever her mental state, in early March Ms. Duke called Angier Biddle Duke, her cousin and a former ambassador, and asked if he could recommend a lawyer. (Mr. Duke died three weeks ago.)

She also asked her plastic surgeon, Dr. Glassman, to put her in touch with Alan Croll, a neighbor of his. Mr. Croll referred her to William M. Doyle Jr., one of his partners in the Katten, Muchin firm. Mr. Doyle, their leading estate specialist, flew from Chicago to Los Angeles the next day.

"The only change she was making was to replace Irwin Bloom with Bernard Lafferty," Mr. Doyle said. "She said Mr. Bloom had lost his sense of territory and had violated the cardinal sin of somehow thinking that he had become Mr. Duke."

Mr. Doyle said he proposed other trustees and pointed out Mr. Lafferty's lack of education. "She told me that he wasn't college educated, but nor was she," Mr. Doyle recalled. "He had been by her side 24 hours a day for six years. He was intimately familiar with her view of life."

On March 9, 1993, Miss Duke signed the codicil, so weak that Mr. Doyle had to guide her hand, witnesses said. Mr. Doyle said he knew the will would be challenged. "It was clear she was disinheriting her daughter," he said. "Any third grader would realize this was going to be a contested estate." The Last Months No Extra Measure To Sustain Life

The months that followed her release from the hospital on April 15, 1993, were hard for her, her employees said. She was often forgetful and disoriented, and still had problems with her artificial knees. She made short trips to Hawaii and New Jersey before returning to Los Angeles to have another knee operation in July.

Dr. Kivowitz said in court papers that he advised her against the operation. So did Eleanor Lawson, her longtime friend and dance teacher. But Miss Duke insisted. Two days after she went home from the hospital, she had a stroke and nearly died.

She returned to Cedars-Sinai, where she stayed two months before being sent home on Sept. 20, for the last time.

Her bedroom was converted for intensive care, with two nurses on duty round the clock. She had a stomach tube for feeding and a tracheotomy tube for breathing.

On Oct. 7, Dr. Kivowitz said in court papers, Miss Duke told him that she did not want to go on living if her health could not improve. The next day, he ordered nurses to take no special measures to keep her alive.

From that point, Miss Duke was heavily sedated, the nurses' notes and court documents say. On Oct. 18, a nurse noted that Miss Duke had told her: "I want to die."

During this time, Mr. Lafferty was running up Miss Duke's credit card accounts, court records show, spending lavishly on gifts for nurses and, in October 1993 alone, buying $20,000 worth of clothes.

Mr. Lafferty and Miss Duke's business manager, George Reed, also doled out several large gifts to the doctors and to charity in the month before Miss Duke died, saying they had been authorized by Miss Duke, the records show. Dr. Glassman received $500,000, and Dr. Kivowitz got $10,000 in addition to his fees.

On Oct. 26, Dr. Kivowitz stopped Miss Duke's feedings and oxygen.

On Oct. 27, Dr. Kivowitz, Dr. Glassman and Mr. Doyle all visited the Beverly Hills house. Mr. Shanley said that when a package of medication arrived in the kitchen that afternoon, Mr. Lafferty grabbed it from him, saying: "Miss Duke is going to die tonight."

At 4 P.M. on the 27th, Dr. Kivowitz ordered her to receive a morphine drip, starting at 5 milligrams. His order said to increase the flow 1 milligram an hour as needed.

But for some reason, the dosage of morphine was increased to 10 milligrams per hour at 6:30 P.M., then 15 milligrams at 7:30, and finally, at 4 A.M., to 25 milligrams, according to the nurses' notes. Dr. Kivowitz also gave her an additional injection of 10 milligrams before he went home for the night, the records show.

The drug slowed her breathing. Her lungs filled with fluid. At 5:15 A.M. on Oct. 28, her nurses gave her an injection of 100 milligrams of Demerol. Their notes indicate Dr. Glassman ordered the extra painkiller over the telephone at the request of Dr. Kivowitz. At 5:48 A.M., Miss Duke stopped breathing.

Mr. Lafferty and Mr. Doyle were at her bedside. Soon afterward, Dr. Kivowitz's partner, Dr. Joshua Trabulus, signed a death certificate, saying the cause was fluid in the lungs and infection. A few hours later, the butler and the lawyer took the body to Westwood mortuary for cremation.

The Heiress

(The American Lawyer)

"At thirteen she inherited a $100 million tobacco fortune," exclaims the breathless back cover copy of The Richest Girl in the World, Stephanie Mansfield’s 1992 biography of Duke. "By the time she was thirty, she’d lavished millions on her lovers and husbands, ranging from a gold-digging sexual athlete to a member of British Parliament, from Hawaiian beachboys to Hollywood starts."

Duke, the notoriously eccentric daughter of American Tobacco Company tycoon J.B. Duke, led the life of the fabulously rich. And depending on her mood or the season, she spent her time shuttling among Beverly Hills, Newport, Rhode Island; and Shangri-La" and "Duke Farms," her Hawaiian and New Jersey estates.

The twice-divorced, childless Duke displayed some wandering spirit in choosing a caretaker for her fortune. After 1987, when she discarded her previous will to name her soon-to-be adopted daughter – the then-33-year-old Chandi Heffner – as her primary executor, there came a quick succession of codicils and wills. In March 1991, after a bitter falling-out with Duke, Heffner was replaced as executor by Duke physician and vitamin guru Harry Demopoulos. Demopoulos was ousted eight months later by Duke’s then-accountant, who in turn was bumped by three new co-executors – Duke’s butler, Lafferty; her half-nephew Walker Inman, Jr.; and The Bank of New York – in early 1992.

The dizzying changes in Duke’s wills were a high stakes game of musical chairs, given the hundreds of thousands of dollars in fees her executors would earn, not to mention the enormous power they would have in naming trustees to Duke’s foundations and in meting out her fortune.

The game, however, finally ended on April 5, 1993, with what would become Duke’s final will, drafted by Katten Muchin partner William Doyle. Both the bank and Duke’s half-nephew Inman were dumped as co-executors. Bernard Lafferty, Duke’s ponytailed Irish-born butler, walked away with nearly absolute control over her legacy.

Did Duke’s attending physician, for instance, increase her dose of morphine even though he now admits she wasn’t in pain? Why was Duke’s lawyer, Katten Muchin trusts and estate partner Doyle, at her bedside when she died? Did Doyle, as a former Duke nurse has alleged, disappear with Duke’s medical records shortly after her death?

Demopoulos has been relentlessly pursuing these and other questions related to Duke’s October 1993 demise. He has hired three law firms – New York’s Simpson Thacher & Bartlett, Newark’s McCarter & English and Los Angeles’ Howarth & Smith – and a private investigative agency in his fight to prove Duke’s will was a sham.

Katten Muchin has responded in kind, bringing in New York’s Wilkie Farr & Gallagher; Roseland, New Jersey’s Stern & Greenberg; New York’s Carter, Ledyard & Milburn; Rochester’s Nixon, Hargrave, Devans & Doyle. "They’re trying to hire every lawyer in America with estate money," declares Manhatten solo practitioner Raymond Dowd, who is representing the former chef and housekeeper in their contracts claim. "This is the lawyers’ full employment act."

There is no denying, however, that Katten Muchin, as both counsel and a defendant, may have the most to lose of any of the law firms involved in the snarl of Duke litigation. As Demopoulos lawyer Don Howarth puts it, Katten Muchin "is up to their hips" in trouble.

Doyle’s partner Croll, who was present when Duke signed the two March codicils, says he also remembers thinking that Duke was "very much with it."

"She was sharp and had a sense of humor," Croll now says. A distinctly different impression, however, comes across in medical records obtained by lawyers for former Duke executor Demopoulos. A March 12 report by pulmonologist Dr. Robert Wolfe, for instance, notes that Duke on admission to Cedars-Sinai February 25 "had poor mental status with confusion and lethargy." The report goes on to state that an MRI brain scan "showed evidence of cortical atrophy" (degeneration of a portion of the brain) and notes that Duke neurologist Dr. Charles Espy "felt that her abnormal mental status was possibly related to a toxic metabolic encephalopathy" (blood poisoning that damages the brain).

One explanation for the discrepancy in the signatures is that Duke, at least according to a July 1993 letter from physical therapist Ketty Lawrence to Kivowitz, had suffered several strokes during March, the very time she was executing the will documents. Demopoulos lawyer Howarth contends that this letter and other medical reports prove that Duke could not have been of "sound mind and memory" – as Katten Muchin’s Doyle swore in a 1994 affidavit.

Moreover, in papers filed by Howarth in New York surrogate’s court, Demopoulos alleges that "Lafferty and his accomplices" tried to hide this fact by attempting to "sanitize" Duke’s medical records. As proof, they point out that Kivowitz, Duke’s attending physician and witness to her April 1993 will, has admitted in depositions that he was aware that Glassman, Duke’s plastic surgeon, had temporarily removed – and later returned – part of her neurologist’s reports.

"It was clear to everyone that this was a dying person," stated Kivowitz in a January deposition with Howarth, the lawyer for former Duke executor Demopoulos, "and dying because of ... a long hospitalization that was – was punctuated by an extended period of respiratory failure."

Howarth, in questioning Kivowitz, though, drove home the point that Duke’s discharge records from Cedars-Sinai make no explicit reference to any "terminal" prognosis. That discharge summary, written by Kivowitz, states: "After this very long hospital course, the patient was felt to be reasonably suited for transfer and home care, and essentially a hospital situation was established at the home."

Howarth: Does it indicate that she was terminal or being sent home to die?

Kivowitz: It does not specify that she was being sent home to die.

Howarth: Does it say that she was terminal or was in critical condition when she was being sent home?

Kivowitz: I think it [implies] quite clearly that she was in a critical situation . . . and this is again a – certainly an understatement of her situation . . .

Howarth: I am asking you now a question about what the records that were made at the time say, Dr. Kivowitz. They don’t say "critical condition" or "terminal," do they?

Kivowitz: There is no reference to "critical condition" or "terminal." However, critical condition is inferred . . . [and] it is my contention and my testimony that she was in critical condition at the time she was sent home.

Howarth notes that that testimony doesn’t square with a report written by two pulmonary specialists after a September 15 consultation with Duke. Among their recommendations was a note to "continue aggressive measures to get patient out of bed, increasing activity level for rehabilitation."

When investigators "interview all the necessary people" they will "conclude that no crime was committed," claims Katten Muchin’s Weitzman. He dismisses the allegations as nothing more that "a straight squeeze to try to get money out of [Duke’s] estate. Ultimately, this is all going to go away."

Demopoulos lawyer Rodney Houghton of McCarter & English counters that Katten Muchin’s efforts to appeal the surrogate’s court’s investigation are a sure sign that the firm is worried. And if he and other Demopoulos lawyers hope for a fat settlement, they aren’t letting on. "I would be reluctant to crawl in bed with them," asserts Demopoulos lawyer Howarth.

Smokers Win Ruling to Bring Class-Action Suit; Millions get approval to join complaint seeking damages for health problems.

By Myron Levin
(Los Angeles Times)

A federal judge on Friday granted class certification to tens of millions of smokers in a lawsuit against cigarette makers, creating what may be the largest class action ever certified in U.S. legal history.

A national consortium of plaintiff lawyers won the key ruling when U.S. District Judge Okla Jones II in New Orleans cleared them to proceed on behalf of smokers in the United States and its territories who allegedly became addicted to nicotine.

The long-awaited ruling did not endorse the suit's central contention: that cigarette makers have long known their products are addictive but have concealed that information and manipulated nicotine levels to keep smokers hooked.

But by granting class certification to a vast number of current and former smokers--even those who have not been diagnosed with smoking-related ailments--the ruling raises the prospect of monumental damages should the plaintiffs ultimately prevail.

The decision makes the lawsuit "the largest class action ever certified in the history of the law," said Don Howarth of the Los Angeles law firm of Howarth & Smith, one of the plaintiff firms allied in the case.

"We're delighted," Howarth said. "This is absolutely 95% of what we wanted. It gives us the right to take on, in one action, the tobacco industry."

Industry officials voiced disappointment with the ruling and said they will appeal.

The two-year-old lawsuit is known as the Castano case, after Dianne A. Castano, one of four named plaintiffs and the widow of Peter Castano, a New Orleans lawyer who died of lung cancer that allegedly was caused by smoking.

Defendants include the Tobacco Institute and the seven biggest U.S. tobacco companies, who maintain that smoking is not addictive and those who want to quit can do so.

Industry lawyers had adamantly opposed class certification, contending, among other things, that the sheer number of potential claimants would make the case unmanageable.

"The court's decision to allow Castano to go forward as a class action, in our opinion, is inconsistent with class certification guidelines," R.J. Reynolds Tobacco said in a statement.

"If this case proceeds and is not reversed on appeal, it will prove to be an unwieldy burden on the court system."

Philip Morris Cos. said it also will appeal, but noted that Jones resolved some issues in the industry's favor--including rejecting an industry-paid fund to monitor smokers' health and fund their medical care.

And Philip Morris said that even if the industry is found liable, smokers will still have to prove damages on an individual basis.

On Wall Street, Philip Morris stock dipped $1.50 to $60.25, while RJR Nabisco, parent of R.J. Reynolds, fell 6.3 cents to $5.625. American Brands, parent of American Tobacco Co., dipped 12.5 cents to $37.50, while Loews Corp., owner of Lorillard Tobacco, was unchanged at $97.50.

Since the 1950s, cigarette makers have repulsed scores of lawsuits, preserving their record of never paying a nickel in settlements or judgments to those claiming injuries from smoking.

Juries generally have agreed that smokers accepted the risk, and armies of defense lawyers have vastly outmanned and outspent their opponents.

To overcome these obstacles, plaintiff attorneys have seized on the addiction argument and sought to even the odds through class-action claims.

A Florida law firm currently has two class actions pending in Florida state court: one claiming injuries to flight attendants from second-hand smoke, and the other on behalf of injured smokers generally.

However, the New Orleans case involves a powerhouse alliance of about 60 law firms, each committed to spending $100,000.

In his 34-page ruling, Jones said the class of "nicotine-dependent" smokers will include all smokers medically diagnosed as nicotine-dependent, as well as smokers who have been warned by their doctors that smoking is dangerous but who have not quit.

Invoking the Robert Frost poem, "The Road Not Taken," Jones acknowledged he was embarking "on a road certainly less traveled, if ever taken at all."

"This will be a daunting task with long, difficult days ahead," the judge said. "However, the court believes the resolution of these issues now will alleviate the constant need for duplicative resolution of these issues later in hundreds of courtrooms around the nation, a task unparalleled in scope."

Ailing Ex-Worker’s Suit Blames San Onofre

(San Diego Union Tribune)

For more than two years, workers at the San Onofre Nuclear Power Plant carried dangerous radioactive particles outside the plant on their shoe heels, their clothes and on their cars, a federal jury was told yesterday.

The microscopic but highly charged particles, called nuclear fuel fleas, were not detected by the plant’s exit-monitoring equipment or by badges that monitored the radiation level of employees, according to Los Angeles lawyer Suzelle Smith.

Smith contends that her client contracted a rare and deadly form of leukemia as a result of working at San Onofre.

The particles also posed a danger to the public, Smith contended yesterday in her opening statement in the case in San Diego’s federal court.

Smith is seeking millions in damages for Rung C. Tang of Pasadena, a former Nuclear Regulatory Commission inspector who worked at San Onofre in 1985 and 1986. Her lawyers had asked for at least $15 million during unsuccessful settlement meetings.

Attorney Smith told the jury yesterday that in early 1985 the company knowingly continued to operate its reactors with 105 leaking fuel rods. She said company officials also knew that personal monitoring badges were not detecting radiation caused by fuel fleas.

"If a flea jumped up and hit the badge it would register," Smith told the jury. People in charge of health and safety didn’t know that the fleas had spread throughout the plant. The fuel fleas infected the laundry so that employees were being given contaminated protective clothing."

At the same time, she said, Tang was being told that "she had less radiation exposure at San Onofre that she would have gotten in the sunlight on the courthouse steps."

Before her bone-marrow transplant last month, Tang, 44, had a life expectancy of six months, Smith said. If she survives the transplant, she will have a 50-50 chance of living five more years, the lawyer added.

Tang has been diagnosed with acute myelogenous leukemia, a cancer that Smith said has only one known cause: exposure to nuclear radiation.

Rosenblum said that if Tang’s lawsuit is successful, it will "obviously have an impact on our ability to manage the plant."

The suit also seeks damages from Westinghouse Electric Corp., Combustion Engineering Inc. and Bechtel Corp. – the companies that supplied the fuel rods to the plant.

Former San Onofre Inspector Sues Over Radiation Exposure

By Andrew Horan
(Orange County Register)

In a landmark case challenging the industry's limits, woman says radiative fuel fragments at the plant caused her leukemia.

For 18 months, R.C. Tang monitored the safety of workers at the San Onofre Nuclear Generating Station. She saw to it that they safely followed security, engineering and technical procedures.

Today she is in a Los Angeles-area cancer ward, recovering from leukemia treatments as jury selection begins on her landmark lawsuit that challenges the industry's position on safe radiation limits.

Tang's attorneys, Don Howarth and Suzelle Smith of Los Angeles, will argue that radiation-detection badges and monitors are adequate.

For instance, most monitors are not designed to detect the kind of radiation emitted by fuel fleas because it is assumed they will not escape.

IRVINE : City Found Partly at Fault in Boy's Death

By Rene Lynch
(Los Angeles Times)

An Orange County Superior Court jury Tuesday awarded $576,800 to the mother of a 14-year-old boy killed at a dangerous intersection in the city, which was found partly responsible for the boy's death.

Teen-ager David Leidal, an honors student at University High School, was struck and killed as he rode his bike in the crosswalk at Michelson Drive and Yale Avenue on his way to school in September, 1988.

The attorney for David's mother, Betty, argued to jurors that the city was aware of speeding cars at the intersection but failed to heed numerous complaints. Attorneys for the city contended that the intersection is safe, and argued that the city could not be held responsible for a driver who ran a stop sign at the crosswalk.

Jurors held the city 25% responsible for the death but put most of the blame--72%--on driver Pejman B. Alaghamandan, who was 17 when he drove through the intersection without heeding the stop sign. Jurors placed 3% of the blame on the victim.

Irvine must pay about $200,000 of the judgment but may appeal the jury award. The driver, who was convicted of misdemeanor manslaughter, had only $15,000 in insurance at the time and may have to file for bankruptcy, his attorney said.

Juror Wendy Ramsbott, 29, of Laguna Hills said the case was a difficult one in which jurors had to decide the financial worth of a child.

"I'm a mother, and I can tell you this was a very difficult case," said Ramsbott, who sided with the majority of jurors who felt the city was partly responsible for hazardous conditions at the intersection. "How do you put a value on the life of a child?"

Steve King, 43, of Costa Mesa was among the minority jurors who felt that the city was blameless.

"I believe the city did more than its share to do what was required at that intersection," King said. "Any time you put cars on the road, you have fatalities. Cities can't be held to blame for that."

Attorney Suzelle Smith, who represented the victim's mother, had suggested to jurors that an appropriate award would register in the millions. Smith admitted disappointment but said she was also pleased that the city was found partly responsible.

"I am personally, absolutely delighted that the jury recognized the city of Irvine was one of the causes," she said. "Candidly, I think the verdict is low for a 14-year-old boy with a promising future."

Attorney Bill Haggerty, who represented the city, said he is considering an appeal. Haggerty said the intersection in dispute is safe, and noted that a study determined that 83% of Irvine's intersections are more dangerous.

"I don't feel victory at all--the city of Irvine was not responsible at all," he said, adding that he believed the emotional issue of schoolchildren's safety blurred jurors' judgment.

Jury Holds City Partly Liable in Youth's '88 Traffic Death

(The Orange County Register)

A Santa Ana jury Tuesday decided the intersection of Michelson Drive and Yale Avenue in Irvine is dangerous and awarded $576,800 to the family of a boy killed by a car there in 1988.

But after three days of deliberations, the jury placed the bulk of the blame on Pejman Brian Alaghamandan, who barrelled through a stop sign at 40 mph and killed David Leidal, 14.

The city, sued along with Alaghamandan by Leidal's mother, Betty, will pay about $200,000. Suzelle M. Smith, Betty Leidal's attorney, contended that the city ignored residents' complaints that the intersection was dangerous before the accident. She had sought a multimillion dollar award.

"I am personally delighted the jury recognized that the city of Irvine was one of the causes of David Leidal's death," Smith said. "Candidly, I think the verdict is low for the life of a 14-year-old with a promising future."

"How do you put a value on the life of a child?" said juror Wendy Ramsbottom. 29, of Laguna Niguel. "We had a lot of debate on that."

Alaghamandan, now 23, pleaded guilty to manslaughter after the accident. The jury held him 72 percent responsible. But his insurance policy maximum is $I5,000, said Bill Haggerty, Alaghamandan's attorney.

While the remainder of the jury's decision could be entered against Alaghamandan, Haggerty said that would only force his client into bankruptcy.

Haggerty, while admitting his client's responsibility, had argued in court that Alaghamandan was a victim of the accident, too. Smith and Haggerty said drivers were not provided with enough warning of the stop sign.

David Leidal, who was riding his bicycle to school, was held 3 percent responsible and the city 22 percent.

While Smith said she hopes the decision will spur the City Council to install safety devices, Rick Quinlivan, who represented the city, said he doubts such steps will be taken.

"Eighty-three percent of the intersections in the city have accident rates higher than this one," Quinlivan said. "I don't feel the city had any responsibility at all."

Jury Awards $3.5 Million in '88 Murder of Woman Leaving Mall

By Amy Louise Kazmin
(Los Angeles Times)

The family of a woman who was raped and murdered after being abducted from a Pasadena shopping mall has been awarded $3.5 million by an Alhambra Superior Court jury, which found that security at the facility was inadequate.

After about a day of deliberations, the jury decided Monday that the owners of Plaza Pasadena did not take sufficient steps to ensure customers' safety in the mall's vast underground parking lot. The jury also found that the lack of security was a direct cause of the crimes that led to the death of Lois Haro.

The 26-year-old college student, who planned to be a marriage and family counselor, was leaving the mall on Oct. 18, 1988, when two teen-agers confronted her at gunpoint in an escalator leading to the parking lot. She was taken to an area under Pasadena's Colorado Street Bridge, where she was raped and then shot once in the head, detectives said.

Ronald Anthony Jones and George Marvin Trone Jr., now both 21, were convicted by Pasadena Superior Court juries of first-degree murder, rape, kidnaping and robbery. Jones was sentenced to death. Trone was sentenced to life in prison.

Attorney Rene Kern, who represented Plaza Pasadena, said an appeal of the decision is being considered. He denied that mall officials had skimped on security and said, "the best security program that could be put together" was provided.

"This is not a coldhearted, unthinking corporation," Kern said. "They are conscientious, and they make every effort to provide the best possible atmosphere."

Haro's husband, Tony, 27, said he and his wife's parents, Elsie and Herbert Purnell of Pasadena, sued Plaza Pasadena to force the management to upgrade security and to deter similar crimes. Ten months after his wife's murder, another woman was abducted at knifepoint from the parking lot and raped off the premises, Haro said.

"The whole point of this lawsuit was certainly not the money," he said. "It was for the mall to prevent other women from going through what my wife went through.

"Hopefully this will send a message to them to take security a lot more seriously than they have been, and that the people that come to their mall to shop are much more important than their profits."

Plaza Pasadena is owned and operated by H-CHH Associates, a general partnership, and Ernest W. Hahn Inc., a San Diego-based firm that owns at least 47 shopping malls across the country.

During the monthlong trial, the family's attorney, Suzelle Smith, said that in the years before Haro's kidnaping, the Plaza Pasadena parking lot was the scene of numerous crimes, ranging from purse-snatchings to car thefts, armed assaults, robberies and the 1982 murder of a 9-year-old girl.

Despite that, the two-level underground parking facility, which stretches under two city blocks, was patrolled by only a single guard, Smith said. Kern denied that, but refused to elaborate.

When the mall was built in 1980, the parking lot and the escalators leading into it were monitored by video cameras. However, the cameras fell into disrepair after about 1 1/2 years and were never fixed, despite the recommendation of the Pasadena Police Department, Smith said. One of the non-working surveillance cameras was located at the escalator from which Haro was abducted.

After the camera system broke down, Smith said, the mall's director of security wrote a memo stating that, to provide the same level of surveillance, he needed four guards patrolling the parking lot.

But, Smith said, the mall owners "had a budget for security. And that was all they were going to spend."

Kern, the mall's lawyer, said the management decided not to fix the video cameras because they were not as effective as "well-trained, conscientious security guards." As to the number of guards, the lawyer said, "there are enough. There were enough."

Unfortunately, he said, no matter what security precautions are taken, some crime is bound to occur.

"I'm not aware of an area of Los Angeles County that's crime-free," he said.

Sears Loses $7M Liability Case

By Marie Vasari
(Alhambra Post-Advocate)

The verdict, rendered Jan. 30 by an Alhambra Municipal Court jury, held that Sears, Roebuck & Company was at least partially responsible for the 1984 incident which left Scott Garland a quadriplegic. Garland, now 35, was injured when the Sears extension ladder he was using slipped out from under him, throwing him approximately 15 feet and damaging his spinal column.

Attorney Suzelle M. Smith said the 1984 accident left the Monrovia resident paralyzed from the chest down, without the use of his arms or legs and with only marginal use of his fingers. Because of his injuries, Smith said her client was unable to continue working at a time when his reputation was becoming established and he was preparing to start his own business. Smith, an attorney from the Los Angeles-based law firm of Howarth & Smith, represented Garland in the suit against Sears, along with partner Don Howarth.

"This is certainly the largest ruling against Sears in any ladder case that I'm aware of," Smith said.

Garland was working as a volunteer for a church play at the Sierra Madra Congregational Church when he and another volunteer used a Sears Heavy Duty 36-foot extension ladder, to retrieve pipes stored in the rafters of the church gymnasium. The two set up the ladder against one of the rafters, Smith said, and although Garland tested the ladder, it slipped out from under him as he stood six rungs from the top. The ladder, manufactured in 1970, was purchased by the church through Sears' catalogues.

The jury, after deliberating for four and one-half days, ruled that Sears was negligent in the design of the ladder and in failing to provide adequate consumer safety warnings. The silver-colored ladder equipped on its inside with a label of the same color and white lettering which read, "Safest, strongest for all home, farm, commercial, industrial uses," and stated the ladder should be set up at a one-to-four ratio from the base to the wall, or a 75 degree angle. Garland's attorneys argued that the warning was inconspicuous, inadequate and did not state the consequences of improper set-up.

Attorneys for Sears had argued that the ladder was not defective because it violated no existing standards at the time of it was manufactured, and that Garland failed to use common sense or heed the warnings of his co-worker.

Hey, Dude. I OBJECT.

By David J. Jefferson
(The Wall Street Journal)

People who start small law firms also like to do things their way. In Los Angeles, this can take on a California cast. When Don Howarth left a big Los Angeles law firm seven years ago to start up a trial law firm, Howarth & Smith, he brought his surfboard with him. And he wasted no time immersing his staff in California surf culture.

Copies of "Surfer" magazine are strewn about the office, and seascapes painted by Mr. Howarth's wife hang on the walls. Mr. Howarth proudly points out to visitors that the "wave action" in the paintings is technically accurate from a surfer's viewpoint. Mr. Howarth, 45, had a huge saltwater aquarium with a living reef constructed in the office.

In court, the attorney often peppers his closing arguments with surfing metaphors; one recent courtroom speech about a missed opportunity became the tale of "a wave that passed you by," he says. And the firm's 22 lawyers and their spouses attend an annual retreat in Cabo San Lucas, Mexico, where Mr. Howarth arranges group surfing activities and shows beginners how to hang 10. "I tried surfing with him once and I almost got killed," says partner Suzelle Smith.

Ex-Employee, Awarded $9 Million, Must Pay $600,000 to Company

By Mayerene Barker
(Los Angeles Times)

A former employee of a Tarzana medical testing firm, who last week was awarded $9 million in a lawsuit against the company, was ordered Monday to pay his ex-employer $600,000 in damages.

Jurors had sided with employee Harvey J. Lippman in the suit, which argued that he was entitled to a 20% share of the company at the time he was fired. The $9-million verdict last Tuesday was one of the largest awards in Van Nuys Superior Court history, said Judge Thomas Schneider.

But on Monday, jurors also decided that Lippman had misappropriated trade secrets and unfairly competed against his former employer, Central Diagnostic Laboratories, and ordered him to pay $600,000.

The decision was the culmination of a trial that has lasted since Jan. 18.

Lippman filed the suit against the company in October, 1985, after he was fired by the firm's owner, Dr. Allen M. Levy. Lippman, who had worked for the firm for 14 years, claimed that he was entitled to 20% of the company because of an oral agreement with Levy.

In turn, Levy's attorney, Allan Browne, filed a cross complaint against Lippman alleging misappropriation of trade secrets and unfair competition. The jury ruled against a slander charge Levy filed against Lippman.

Don Howarth, Lippman's attorney, maintained that Levy fired Lippman to avoid giving him 20% of the company, an oral commitment the attorney said Levy agreed to in 1976.

Lippman described his relationship with Levy as one of father and son. "He made a promise to me and I trusted him," he said Monday outside of court.

Browne, argued that since Lippman, 46, could produce no written document, the oral agreement was not valid. He also maintained that his client fired Lippman when he discovered that his employee was using the firm's client lists and other assets to establish his own company.

Lippman said he has since founded another medical testing firm, Clinical Science Laboratory of North Hollywood, but denied doing so while working for Levy.

Howarth said that as head of marketing for the firm, Lippman had build the company from one that employed only nine workers in 1970 to a major business that has about 900 employees and grossed $45 million in 1985, the year his client was fired.

"I now feel that justice has been served," Lippman said after the verdict. "I'm very happy."

Appeal Planned

Levy was not in court Monday afternoon and was unavailable for comment. But Browne indicated his client will appeal the $9-million award. "This is only round one of a 10-round battle," he said.

Browne said he found the $9-million award "hopelessly inconsistent" with the jury's award of $600,000 to the company Monday.

Jury foreman William B. Cummings said the 11-1 verdict came after three days of deliberations.

"We were convinced a verbal agreement had been made," he said. Cummings called Lippman's job performance exemplary.

He said the jury arrived at the $9-million figure by taking 20% of $45 million, the amount the company grossed in 1985, the year Lippman was terminated.

Central Diagnostic Laboratories has other problems too. Last month, federal health authorities decertified one of its subsidiaries, Central Pathology Services Medical Group, Southern California's largest Pap smear laboratory, saying it had misdiagnosed too many specimens.