Wednesday, May 7, 2003 Print This | Email This     

Did Leo DiCaprio lead his posse to war?

By Matt Bean, Court TV

NEW YORK (Court TV) — It's a melee culled straight from the movie marquees: A former "Porky's" actor defends the honor of his "Showgirl" girlfriend, only to be beaten down by a "Titanic" star's "Gangs of New York."

Oscar-caliber material? Not to the cuckolded protagonist, actor Roger Wilson—who claims in a $45 million suit that Leonardo DiCaprio ordered his posse to beat him outside a Manhattan nightspot for telling them to stop hounding his then-girlfriend, Elizabeth Berkley.

The suit doesn't claim that DiCaprio threw any punches, but Wilson argues that the actor's call to arms on March 4, 1998—he allegedly exclaimed, "We'll go kick his ass," before the beating—fueled his friends into a frenzy.

Wilson, 45, filed suit in 1999, claiming the assault damaged his windpipe, rendering his showbiz career mute. Unable to continue his Broadway career, play in his rock band, or pursue movie roles like that of Mikey, the character he played in the first two "Porky's" movies, the actor is seeking $15 in compensatory damages and $30 million in punitive damages.

Late last year, a Manhattan judge gave the green light to Wilson's suit, touching off a flurry of depositions, including one on Tuesday, as both sides gird for a possible September courtroom showdown.

Legal experts contacted by agree that the suit—which also names publicist Karen Tenzer, alleged posse members Jay Ferguson, Kevin Connelly, Vincent Laresca, Todd Healy, three John Does, and the restaurant—may prove a hard sell.

The central legal hurdle: Were DiCaprio's words really a battle cry?

'Karen needs you immediately'

Reports of DiCaprio's girl-crazy "brat pack" had reached a fevered pitch in the months after "Titanic" sent the actor's stock soaring. Four years later, he would lead a gang of rag-tag street brawlers in the Martin Scorsese epic, "Gangs of New York." But back in 1998, claims Wilson, DiCaprio's real-life gang was almost as vicious.

It was at a party for the premiere of DiCaprio's first film after the ship-sinking and record-breaking "Titanic" that DiCaprio and his "posse" first began hounding Berkley, claims Wilson.

The film, called "The Man in the Iron Mask," was a swashbuckling flick that featured DiCaprio as a king and his twin battling for control of the throne. As Wilson tells it, he'd soon be battling over Berkley.

At a party at the New York Public Library following the premiere, publicist Karen Tenzer allegedly approached Berkley on behalf of DiCaprio and his posse-mate, Jay Ferguson, asking the actress (whose breakout movie, "Showgirls" was a major box-office flop) to ditch Wilson and join the group at the New York power-restaurant, Elaine's. Berkley rebuffed the go-between publicist.

The next day, however, DiCaprio and Ferguson, as well as Tenzer's assistant, allegedly continued to harangue Berkley via voicemail, asking her to accompany them to dinner that night. Berkley ignored the messages, until a frantic call from Tenzer's assistant around midnight on March 3, 1998. "Karen needs you immediately," was the word.

That's when Wilson stepped in. According to the actor, an attempt to settle the dispute politely devolved into an angry phone exchange with Ferguson.

"You don't know who you're dealing with... we call whoever we want and if you don't fuckin' like it, why don't you come down here and tell us to our face?" Ferguson yelled, according to the suit.

So Wilson decided words were not enough. Berkley had been invited to meet the group at Asia de Cuba, inside the upscale Morgan's hotel on Madison Avenue, and that's where the plaintiff went. He found the group seated at a table with actors Gabriel Byrne—one of DiCaprios co-stars in "The Man with the Iron Mask"—and Julia Ormond.

According to the suit, a "clearly inebriated" Ferguson jumped up and said, "I'm the one who called you, fuckface, and it's time for you and me to go outside."

'We'll go kick his ass'

That's when DiCaprio allegedly made a call to arms. "We'll go kick his ass," he shouted, Wilson claims in his suit.

Outside, the posse quickly surrounded Wilson, taunting him while DiCaprio looked on. As restaurant security guards stood by (leading to their status as defendants in this case), an alleged posse member, Todd Healy, jumped toward Wilson, clocking him square on the throat. "I'm going to fucking kill you," Healy shouted, claims Wilson in the suit, until he was detained by other members of the posse.

A copy of the amended complaint, which adds Healy's name to the list of defendants, includes graphic, high-quality shots of Wilson's purportedly damaged larynx.

Wilson doubled over in pain, and was surprised when the security guards ordered him to leave the area in front of the hotel. "Unable to swallow, breathe, or speak freely," Wilson hopped in a can and made his way to the doctor, the suit claims.

While DiCaprio never delivered a blow, Wilson's argument is that the posse-leader's rally cry was more than enough.

"All of this was carried out at the behest of DiCaprio, who... stood watching the assault and battery he had ordered while nonchalantly smoking a cigarette," claimed the set-upon actor in his suit.

Aiding and abetting?

DiCaprio's alleged war cry, only five words, are central to Wilson's case, and perhaps to a hefty payout.

In naming DiCaprio, Wilson could be increasing the odds of a settlement, says Eric Dubin, a Los Angeles-area attorney representing the four surviving children of Robert Blake's slain wife, Bonny Lee Bakley.

"It seems like he's casting a pretty big web," said Dubin. "Sometimes your strongest case is not against the one who has the money. The obvious thing in this case is that DiCaprio is the deep pocket."

New York lawyer Steven Mintz, who represented "Sopranos" star Robert Iler in a 2002 bust, agreed.

"This is the problem of being in the wrong place at the wrong time if you're a celebrity," said Mintz. "If you're there and you're famous and important then it seems to matter much then if you're a regular Joe."

In naming DiCaprio as a defendant while admitting he was not part of the brawl, Wilson sets up an interesting, and perhaps difficult, legal hurdle: He has to prove the group acted on the actor's behalf.

"Presumably they'll try to prove that he was part of a conspiracy and that he participated by trying to incite the crowd," ventured Mintz.

The suit claims that DiCaprio's posse functioned not only as his friends, but also as his bodyguards, protecting him from "Leomania." "These and other functions of the posse are carried out under the direction of, and with the consent and approval of, defendant DiCaprio," it reads.

A bouncer at the restaurant that evening could help the plaintiff prove that DiCaprio made the allegedly incendiary statement. But DiCaprio's lawyers have argued that the statement alone is not enough to prove liability. In their response to the suit, they call the allegation "a faulty attempt to impose vicarious liability against Mr. DiCaprio for the alleged intentional assault by an unknown assailant."

In granting Wilson's suit a trial berth, New York Supreme Court Judge Paula J. Omansky believed there was at least enough evidence for the trial to move ahead, but put strict limits on what Wilson would need to prove.

"In order for plaintiff to sustain his claim," Omansky ruled, "he must plead facts which indicate that Mr. DiCaprio's statement in the bar directly led to the altercation outside."

Was Healy part of the posse?

Reports of DiCaprio's wild nights have tapered with age, and his "brat pack" has winnowed as well. Some members, like "Spiderman" star Toby McGuire, have gone onto stardom. Others, like Kevin Connelly, have seen their careers nosedive.

But DiCaprio's trial—if it makes it that far—could catapult some of his friends back into the spotlight. Wilson has also named publicist Karen Tenzer and the actors Vincent Laresca, Connelly, and Jay Ferguson, as well as three unidentified "John Does" who allegedly participated in the brawl.

But it is Todd Healy, the alleged assailant, who may prove the key to the case. Wilson claims in his suit that Healy, who was originally named as John Doe #1 but came forward in late 2002, was seated with DiCaprio at Asia de Cuba. But DiCaprio's lawyer says otherwise.

"We were pleased when Healy came forward," said DiCaprio's Manhattan-based attorney, Paul Callan. "Healy testified that he was walking down the street on Madison Avenue and he saw some sort of a ruckus going on. He really destroyed the plaintiff's case in the sense that DiCaprio could not have ordered this so-called "posse" to commit the offense if he didn't even know [Healy]. And Healy already testified at a deposition under oath that Leonardo DiCaprio had no connection to the incident whatsoever."

Moving toward trial—or settlement

DiCaprio already gave a videotaped deposition last week, but on Tuesday, Wilson's attorney, Leslie Kelmachter continued readying for battle by deposing posse member Jay Ferguson, the former child star of the small-screen drama "Evening Shade" and "The Outsiders" and a co-defendant in the lawsuit.

Reached at her office by, Kelmachter declined to comment on specifics, but said, "It's going well for us but it's going slowly."

What is said in the despositions now could determine whether the case winds up in the courts, or with a pay-out to Wilson from DiCaprio's coffers, Dubin said.

DiCaprio could also settle just to clear the matter from the public eye. "If Leonardo wants to keep his deposition confidential, that could also be a reason for settlement," said Dubin.

"He may be willing to pay something to make it go away and not have to deal with it," agreed Mintz.

But if a 1998 interview with New York Magazine is indicative of DiCaprio's courtroom predilections, the actor will be more likely to hold 'em than fold 'em.

"I'm the cheapest bastard in the world," the actor told the magazine. "You never know, I may go bankrupt, or lose my career, or have a Hugh Grant situation."