Gay Lawyer’s Suit Offers a Real-Life ‘Philadelphia’ : Courts: San Diego attorney says he lost job because he was HIV-positive. Firm says firing was cost cutting move.

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.

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 the grounds that he was fired because he has AIDS.

Caprow, 37, says he was abruptly fired in 1992 because the senior partner learned that 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 Caprow, who has since developed 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 Caprow was fired not because of his HIV condition but because the firm was losing clients and needed to cut expenses. 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 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,” 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.

“(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 Caprow is the law firm’s former office manager, who testified that after 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.”

Caprow, who has a raspy voice and sunken eyes, has had five hospital stays in the last year. He has been found to have cytomegalovirus, one of the opportunistic and deadly infections that hit AIDS patients.

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.

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 similar characteristics.

Nominated for five Academy Awards, including best actor, “Philadelphia” is playing to packed houses around the country, including a theater one block from the San Diego courthouse.

In deference to his rapidly weakening condition, Caprow was allowed to testify in December. He listened intently this week when the trial resumed with additional testimony.

Freedus testified that he and his partner James Lieberman had decided in January, 1992, to fire Caprow from his $55,000 a year job as a fourth-year associate because of a downturn in business and concerns about the quality of his work.

Freedus said he delayed firing Caprow because Lieberman said he needed Caprow to help on a “slip and fall” case in which a shopper was suing a grocery store represented by the firm.

While Caprow and Lieberman were working on that case in early 1992, then-office manager Karen Tessier began shopping for a new group health plan because Freedus was concerned about escalating premiums.

At the suggestion of insurance agents, Tessier distributed a health questionnaire to all employees. It asked, among other things, whether they suffered any chronic, debilitating diseases that would be grounds for insurance companies to deny coverage to the firm.

In April, Freedus was notified by Tessier that someone in the firm had a chronic disease that would make it impossible to get a new group health plan. In accordance with state law that makes it illegal to disclose someone’s HIV status, Tessier did not identify the employee. Still, having long suspected that Caprow was gay, Freedus reportedly guessed that Tessier was talking about Caprow and that the disease was probably AIDS.

On April 30, Freedus fired Caprow telling him that the firm did not have enough work. He was allowed to remain for 30 days and given an additional 30 days pay as severance.

Caprow was the first associate-level lawyer ever fired by the firm, Freedus testified under examination by Caprow’s attorney, Ann M. Smith. Just five months before being fired, he had been given a raise and an end-of-the-year bonus.

“Mr. Caprow certainly had pluses, but he certainly had minuses,” Freedus said.

Tessier said other attorneys were upset at Caprow being fired without warning. When she told Freedus that morale was sinking, Tessier testified that he got mad at her and blurted out that Caprow was probably gay and probably infected with AIDS and that the matter was closed.

Freedus, questioned by McMahon, remembered that conversation differently. He said he had mentioned that Caprow was probably gay and had AIDS but only because he was worried that other employees would incorrectly decide that he had discriminated against Caprow rather than realizing that he had fired him for strictly business reasons.

Tessier testified that Freedus told her to spread a story in the office that Caprow had not been a very good lawyer. “I told him I couldn’t do that and that people would have problems with that,” she said.

The contretemps over Caprow’s firing soured the relationship between the senior partner and the office manager and within a few months Tessier, also upset at Freedus’ refusal to give her a raise, took a job for less pay at another San Diego firm.

She contacted Caprow and told him what she knew about the circumstances of his firing. She said she did so to soothe her conscience.

“I had been complicitous in my silence in not telling him,” Tessier testified. “I felt very, very strongly he had a right to know what I knew.”

Caprow, in an interview, said he had suspected immediately that he had been fired because of his HIV condition but that he had no proof until Tessier came to him that summer. That prompted him to file suit, he said.

“I was devastated,” he said. “I cried. I had nightmares. I had worked extremely closely with these people for four years. It was mind-blowing.”

In cross-examination, McMahon sought to portray Tessier, a Navy veteran with extensive experience as a legal secretary, as a disgruntled ex-employee who has a grudge against Freedus and is trying to damage him and the firm with false allegations.

Among other things, he noted changes in Tessier’s account of various conversations and discrepancies about when those conversations took place. McMahon also said that Frank & Freedus has lost half its clients in recent years and trimmed from 15 lawyers and paralegals to seven.

Tessier testified that she commonly knew when Freedus was on the verge of firing a young lawyer but that she had no warning that Freedus was planning to fire Caprow. Both Tessier and Caprow were on the verge of tears during her testimony.

Caprow, who enjoyed skiing and bowling before illness overtook him, graduated from Arizona State University in 1978 and Western State University College of Law in San Diego in 1988. Before law school he was a marketing director for Ringling Bros. and Barnum & Bailey Circus.

After being fired from Frank & Freedus, Caprow was offered a job at a higher salary with a Los Angeles firm but declined because he did not want to leave San Diego. He has done volunteer legal work for the local AIDS Foundation.

“I’ve seen a lot of death in the last two years,” he said.

Caprow is suing for unspecified damages. In similar cases, a Philadelphia lawyer was awarded $157,000 in 1990, and last December, a New York claims judge ordered a firm to pay $500,000 to the survivors of a fired lawyer.

David Rubin, a San Diego lawyer and a leading member of the Tom Homann Law Society, a gay and lesbian lawyers’ group, said that if the judge finds in favor of Caprow, “that means this law firm practiced bigotry and we cannot have that in 1994.”

As for Caprow, Rubin said, “He’s not doing this just for himself. He’s trying to stand up for a lot of people. That will be his legacy.”

* ‘PHILADELPHIA’ LAWSUIT: Is the film “Philadelphia” fiction, or based on the case of a lawyer who died of AIDS? F1