Gordon & Silber, P.C. (G&S), recently triumphed in a second landmark trial involving the billion dollar estate of the late Robert Cohen, the owner and Chairman of the Hudson News Company. G&S was retained by the law firm DeCotiis, Fitzpatrick & Cole, LLP (DF&C) to handle the critical medical issues in both trials. In the first trial G&S established that Robert Cohen was medically competent despite suffering from advanced Progressive Supranuclear Palsy (PSP). In the second trial, G&S assisted DF&C in establishing that the changes Robert Cohen made to his will in his last years were not the subject of undue influence from his son James Cohen. G&S senior trial partner Sandy Gold assisted by partner Laura Rodgers, with little more than their legal pads, bested the 760 attorney law firm of Paul, Weiss, Rifkind, Wharton and Garrison in the first trial. In the second trial, Sandy and Laura’s low tech, but highly cost effective approach, bested the law firms of Friedman Kaplan Seiler & Adelman, LLP. and Greenbaum, Row, Smith & Davis, LLP., large firms that specialize in complex commercial litigation.
The trials were extensively covered by the news media, involved the disposition of hundreds of millions of dollars of Robert Cohen’s estate and featured dozens of witnesses. The main litigants were Robert Cohen’s son, James Cohen, and Robert Cohen’s grand-daughter Samantha Perelman, the daughter of billionaire investor Ronald Perelman. In the first trial, Samantha Perelman attempted to restore bequests based on an alleged promise by Robert Cohen to split his estate equally among his three children. The major issue was whether Robert Cohen was competent to make the subject changes to his will. He was deposed and underwent medical testing to assess his medical and cognitive abilities. At trial Sandy Gold’s direct and cross examination of the various fact and expert witnesses allowed the court to conclude that Robert Cohen was competent and led to the dismissal of all claims except the claim based on undue influence which the Court found was not ripe while Robert Cohen was still alive. When Mr. Cohen died in 2012, Samantha Perelman brought a further action to pursue the claim for undue influence.
Ms. Perelman claimed that her uncle exerted undue influence over her grandfather leading him to make several changes to his will which drastically reduced her share of her inheritance to the benefit of her uncle. It was undisputed that Robert Cohen’s PSP had caused his progressive decline until he required round the clock nursing care to assist him with eating, dress and personal needs. During a portion of the relevant time period he was fed with an abdominal feeding tube and communicated by blinking his eyes. The recent trial focused on the mental condition of Robert Cohen in the last 9 years of his life. This trial lasted 85 days and involved more than fifty witnesses.
Samantha Perelman was initially successful in establishing a presumption of undue influence which shifted the burden of proof onto G&S’ client James Cohen to rebut undue influence. Samantha Perelman relied heavily on the testimony of Sanford Finkel, M.D. a physician expert specializing in “geriatric psychiatry.” Finkel was chairperson of a 2007 Task Force on undue influence and testamentary capacity for the International Psychogeriatric Association (“IPA”). Finkel testified that Cohen had become severely depressed, was suffering hallucinations and displayed symptoms of “frontal lobe dementia” with a sleeping disorder that at times made him act irrationally. Finkel also testified that the impairment of Cohen’s executive functions prevented him from formulating and following through on his plans and that he was susceptible to undue influence based on his health and his isolation from the loss of family members, including his wife to Alzheimers. The court noted that “the backdrop for much, if not all, of plaintiff’s interpretations of the facts and circumstances regarding Robert Cohen’s actions or inaction was [Dr. Finkel’s] characterizations that Robert Cohen suffered from a severe loss of his cognitive abilities.”
To rebut the testimony of Dr. Finkel, G&S principally relied on the expert testimony of Alessandro Di Rocco, M.D. the Director of the NYU Parkinson’s and Movement Disorders Center and Professor of Neurology who testified that in March 2009 Robert Cohen was “experiencing no intellectual deficit, no thought disorders, no mood disorders and no loss of motivation/initiative which could in any way suggest loss of independent thinking, judgment and free will” although he acknowledged the extreme loss of physical mobility including loss of eye movement. In addition, G&S presented Robert Cohen’s longtime treating neurologist and quasi-primary care physician Dr. Susan Bressman, who testified that her testing through 2009 revealed little to no cognitive impairment. G&S was also involved in varying degrees with presenting 28 other witnesses including a speech pathologist, nurses and aids who provided round the clock care as well as executives and other company employees.
Despite diametrically opposed viewpoints of the experts, the court ultimately concluded that Robert Cohen’s cognitive capabilities remained largely intact and that in fact, it was Robert Cohen who was in control of James Cohen. Specifically, the court found that Robert Cohen’s personality, despite his Parkinson’s disease, remained as it was, strong-willed and determined, resisting even medical advice in doing what he wanted for pleasure despite his ailments.”
The Court quoting from The Princess Bride, affirmed that her decision not based on what was fair, but on the proof. She wrote: “Life isn’t fair. It’s just fairer than death, that’s all.”