Calif. trial is real-life 'Philadelphia'

February 17, 1994|By Los Angeles Times

SAN DIEGO -- Viewing the film "Philadelphia" on the eve of his own legal battle was "like watching my own nightmare, " says Martin D. Caprow, a gay lawyer.

Mr. Caprow is the plaintiff in a trial with striking similarities to the hit film, in which a gay attorney sues his former law firm on grounds that he was fired because he has AIDS.

The 37-year-old attorney says he was abruptly fired in 1992 because the senior partner learned that Mr. Caprow was HIV positive and that his condition would prohibit the firm from getting a new, cheaper health insurance plan.

"They knocked me when I was down and that is as low as you can get," said Mr. Caprow, who has since developed full-blown AIDS. "Employers need to know that gay people won't stand for this anymore."

But the senior partner of Frank & Freedus, a San Diego firm specializing in insurance and personal injury cases, testified that Mr. Caprow was fired not because of his HIV condition but because the firm was losing clients and needed to cut expenses. Mr. Caprow was dismissed because he was not as good as other lawyers with similar standing in the firm, the partner testified.

The case is being heard without a jury by Superior Court Judge Vincent P. DiFiglia because defense attorneys were worried that jurors might be influenced by the movie, in which Tom Hanks stars as a lawyer with AIDS who wins a discrimination suit.

Defense attorney Gerald L. McMahon said that Mr. Caprow is trying to unfairly use laws that ban discrimination against gays and lesbians as a way to force Frank & Freedus to fire someone else rather than him.

"Those laws are a shield [against discrimination] but those laws are not a sword to get preferential treatment," Mr. McMahon told the judge in his opening statement this week.

The Caprow case has drawn attention from gay and lesbian support groups eager to see how the state's new anti-discrimination law is handled in the courts.

"It [discrimination] is going on a lot in the legal profession," said Amelia Craig, staff attorney for the Lambda Legal Defense and Education Fund. "It's very hard to prove."

The star witness for Mr. Caprow is the law firm's former office manager who testified that after Mr. Caprow was fired, senior partner Eric B. Freedus told her, "He's likely gay, he's probably got AIDS. What's the big deal? We've terminated him, he's gone."

Mr. Caprow, who has a raspy voice and sunken eyes, has had four hospital stays in the past year. Like the Hanks character, he has been diagnosed with cytomegalovirus, one of the opportunistic and deadly infections that hit AIDS patients.

Mr. Caprow's widowed mother, Nikki, who had not known her son was gay before he became HIV positive, has come to San Diego from her Chicago home to sit in the front row at the trial. "I'm there for the same reason my son is: I want to see justice done," she said.

In "Philadelphia," the lawyer's mother (played by Joanne Woodward) is similarly supportive.

Mr. Freedus, the senior partner, has been portrayed during the trial as hard driving (arriving at work before 6 a.m.), highly critical, quick to fire new attorneys and capable of great personal coldness (firing a secretary who took medical leave due to lung cancer). In the movie, Jason Robards plays a senior partner with the same characteristics.

In deference to his rapidly weakening condition, Mr. Caprow was allowed to testify in December.

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