HIV-Infected Attorney Loses Bias Lawsuit : Courts: Judge rules that gay lawyer was not fired from San Diego firm because he has AIDS virus. Case drew comparisons to the movie ‘Philadelphia.’

Ruling in a case with similarities to the movie “Philadelphia,” a judge Wednesday decided that a gay lawyer was not fired from a San Diego firm because he is HIV-positive.

Superior Court Judge Vincent DeFiglia ruled that attorney Martin Caprow did not prove that he was fired from the firm of Frank & Freedus because of his HIV status, which would have violated state discrimination laws.

Caprow, who has developed AIDS, had claimed in a civil suit that he was fired abruptly after four years because the hard-driving senior partner, Eric Freedus, learned that Caprow’s HIV status would prevent the firm from getting a new health insurance plan.

But in a 36-page decision, DeFiglia ruled that comments made by Freedus, and remembered by Caprow’s star witness, the firm’s former office manager, did not constitute an admission that Caprow was fired because he was HIV-positive.

The former office manager testified that Freedus told her angrily: “He’s likely gay, he’s probably got AIDS. We’ve terminated him. What’s the big deal?”

Gerald McMahon, defense attorney for Freedus and his partner James Lieberman, hailed DeFiglia’s decision and said his clients were the real victims of the case.

The defense had asked for a trial by judge for fear a jury would be influenced by the hit movie, in which Tom Hanks plays a young lawyer with AIDS who sues his former firm. In the movie, Jason Robards portrays a mean-spirited senior partner and Denzel Washington plays a lawyer who helps Hanks win his discrimination suit.

“Our clients were unfairly portrayed by trying to draw parallels between this case and the movie ‘Philadelphia,’ ” McMahon said. “This was an unfair and unfortunate ordeal.”

Caprow’s attorney, Ann Smith, said she is concerned that the shock of the loss will further damage her client’s health. “To say he is disappointed would be an understatement,” she said.

McMahon had portrayed the decision by partners Freedus and Lieberman to fire Caprow in April, 1992, as a painful one caused solely by a severe reduction in business. The firm has lost half its clients in recent years.

Smith had sought to undermine the defense assertion that Caprow was the most expendable of the firm’s associates. “There is not a piece of paper in Mr. Caprow’s personnel file with a single word of criticism,” she said.

During his closing argument two weeks ago, McMahon had sought to distance the case from the movie:

“Neither of these gentlemen is a character played by Jason Robards. Marty Caprow isn’t Tom Hanks, and I don’t see Denzel Washington anywhere. What I see is two fine gentlemen who have done the best they can under the law and they have been pilloried.”

Caprow, 37, had received raises and bonuses and when he was fired was being paid $55,000. He was considered to be on track to becoming a partner. During the trial, Freedus and Lieberman portrayed Caprow as an attorney who had begun his career with great promise but then faltered.

Under questioning from the judge, Smith conceded that Caprow had never been subjected to homophobic remarks or discrimination during his years with the firm.

Caprow has been hospitalized repeatedly in the past year and has pancreatitis as well as cytomegalovirus, one of the opportunistic and deadly viruses that can strike people with AIDS.

Caprow joined Frank & Freedus in 1988 after graduating with honors from law school. The firm specializes in insurance and personal injury cases and is known locally for advertising for clients in Spanish-language publications.

McMahon, after receiving the judge’s decision, cautioned the press and public about finding parallels between movies and life.

“Sometimes the parallels between art and life aren’t parallel at all,” he said, “but jagged lines.”