Legal Issues and Attorneys and Simon Property Group and Ice Miller and Lawsuits and Mel Simon and Law and Real Estate & Retail

Bren Simon lashes out over 'wrongfully removed' medical log

May 10, 2010
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Bren Simon alleges in a new court filing that a former nurse aide for Melvin Simon stole a confidential medical log and unlawfully turned it over to attorneys representing one of Simon's children from a previous marriage.

Attorneys for the widow of the mall magnate say the move is one in a series of "willful and egregious discovery abuses" for which Deborah Simon and her attorneys should be forced to pay unspecified monetary damages. The filing is the latest turn in an increasingly bitter battle over a fortune estimated to be worth about $2 billion.

The filing details how Pervis Dansby, a certified nurse aide who began caring for Mel Simon in December 2005, bought a spiral notebook and logged updates from June 1, 2009, until Mel's death on Sept. 16, 2009. Dansby kept the records—which chronicle Mel's "vital signs, medications and private and intimate activities"—for his "own protection" and that of his fellow nurse aides, presumably so they would not be held liable for any problems.

Dansby late last year shared the 82 pages of records with Deborah Simon and her attorney Richard Smikle of Ice Miller, in what attorneys for Bren say is a violation of federal medical privacy regulations. Deborah in January sued Bren, contesting changes to Mel's estate plan he signed in March 2009, seven months before his death at age 82. The revisions substantially increased the share of his fortune earmarked for Bren.

In the new filing, attorneys for Bren blast opposing counsel for not disclosing sooner they had obtained the medical log. Deborah Simon's attorneys took testimony from Dansby on Dec. 7, 2009. But they didn't reveal to Bren's attorneys that Dansby would be called a witness until Feb. 16, 2010, and didn't share the medical log until March 8, 2010.

"Plaintiffs and their counsel participated and acquiesced in Mr. Dansby's wrongful taking and ratified his misconduct," the filing alleges.

Deborah has yet to file a response to the claims, and Smikle declined to comment. Dansby did not immediately return a phone message left at his Indianapolis home.

The filing appears aimed at damaging the credibility of Dansby, who is expected to offer testimony in support of allegations that Bren treated Mel in what court filings describe as a "mentally and verbally abusive" manner late in his life.

An amended complaint Deborah filed in April casts Bren, 66, as "verbally abusive" during Mel's last months, "regularly screaming and yelling at him, badgering him, belittling him, cursing him, and calling Melvin vulgar names."

Bren's attorneys have called the accusations "vile."

In their latest filings, the attorneys question how Deborah Simon and her legal team have acquired confidential financial records and internal e-mails between security personnel at the Asherwood estate.

They say Deborah "rummaged" through Bren and Mel's offices while they were away, and abused the "unfettered access" Bren gave them to Asherwood after Mel was diagnosed with pancreatic cancer and moved back to Indianapolis on Aug. 3, 2010.

"Plaintiffs and their counsel have already shown an inclination to take confidential documents and have had the opportunity to do so," wrote Bren's local counsel, Campbell Kyle Proffitt LLP. "Plaintiffs had both the opportunity and incentive to raid Asherwood, even as they feigned affection toward Mrs. Simon during Mr. Simon's last six weeks of life."

Deborah contends her father was suffering from dementia and didn’t understand what he was doing when he revised his estate plan, boosting the share of his fortune going directly to Bren from one-third to one-half.

The changes also wiped out a portion that was to go to Deborah and her siblings from Melvin’s first marriage—Cynthia Simon-Skjodt and David Simon, the chairman and CEO of Simon Property Group—and left charitable gifts stipulated in prior versions to Bren’s discretion. Bren, who married Mel in 1972, contends the changes fully reflected his wishes.

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