A judge in Los Angeles has cleared the way for Michael Jackson’s mother and three children to go to trial on claims that the concert promoter for his planned "This Is It" tour was negligent in hiring and supervising Dr. Conrad Murray, the physician convicted of involuntary manslaughter in the singer’s 2009 death.
Los Angeles County, Calif., Superior Court Judge Yvette Palazuelos ruled on Feb. 27 that AEG Live LLC and its senior executives failed to prove on summary judgment that they had not hired Murray or that they had no reason to believe he would be an unfit physician. Murray was convicted in 2011 of administering a lethal dose of the anesthetic propofol to Jackson and is serving four years in prison.
"There is a triable issue of fact as to whether it was foreseeable that such a physician under strong financial pressure may compromise his Hippocratic Oath and do what was known by AEG Live’s executives to be an unfortunate practice in the entertainment industry for financial gain," Palazuelos wrote in her order, which became public on March 1.
"Triable issues of fact exist as to whether it could have been foreseeable that Dr. Murray would engage in the exact behavior alleged here: Dr. Murray’s provision of drugs which led to Decedent’s death," she said.
Palazuelos, however, threw out additional claims for breach of contract based on a "special relationship" between AEG and Jackson created when both signed the "This Is It" tour contract. Jackson was hardly in AEG’s thrall, she said, citing the promoter’s reference to Jackson as "the greatest and most beloved entertainer in the world."
"The court does not necessarily disagree," she wrote. "So, given Decedent’s status and experience, exerting strong financial pressure is insufficient alone to create undue risk of harm."
She also agreed with AEG that Murray was not an employee and, as such, could not ensure that Jackson would show up for rehearsals. "Assuming that is true, there is no evidence that Defendants exercised or could exercise any control over how (manner or means) that task was to be accomplished."
A trial on the negligence claim is scheduled for April 2.
"We actually have the cleanest, simplest cause of action for us to prove, which is simply that they were negligent in hiring and retaining, keeping on board, the man who’s in prison for killing Michael Jackson," said Kevin Boyle of Panish, Shea & Boyle in Los Angeles, who represents Jackson’s heirs.
"I am pleased the court dismissed AEG and Leiweke outright, and dismissed all but one of the remaining claims against the remaining defendants," said Marvin Putnam, a partner at O’Melveny & Myers in Los Angeles who represents the AEG defendants. "Michael Jackson’s death was a tragedy, but as Friday’s ruling and commonsense make clear, AEG was in no position to save Michael Jackson from his longtime battle with addiction."
Jackson died on June 25, 2009, days before he was scheduled to start the "This Is It" tour in London. He was 50 years old.
Jackson’s heirs originally accused AEG Live of negligence and breach of contract in hiring Murray. They asserted that AEG Live valued profits over the singer’s health, forcing him to show up to rehearsals despite knowing he was ill in the days leading to his death.
In addition to AEG Live, the suit names its parent corporation, Anschutz Entertainment Group Inc., and its president and chief executive officer, Timothy Leiweke; AEG Live president and chief executive officer Brandon "Randy" Phillips; and AEG Live co-CEO Paul Gongaware.
In her order, Palazuelos found that the AEG defendants had hired Murray as an independent contractor despite the absence of a signed contract. The AEG defendants had argued that a draft contract between Murray and AEG was never executed before Jackson’s death.
The judge referred to an oral or implied contract, payments to the doctor in the tour’s budget and discussions about Murray’s compensation—about $150,000 per month—just before Jackson’s death.
"Prior to the anticipated signing of the written contract, the evidence is sufficient to establish that Defendants and Dr. Murray communicated regarding the current medical treatment and care of Decedent," she wrote. The fact that Murray was never paid, or that Jackson retained his services beforehand, does not clear AEG of all liability, she added.
She also disputed that AEG had no forewarning about Murray’s actions.
"Plaintiffs presented evidence that Defendants did not conduct a sufficient background check of Dr. Murray, which would have established that Murray was deeply in debt," she wrote. AEG executives knew that Dr. Murray had closed his practice in Las Vegas and had no practice in Los Angeles; furthermore, Gongaware, in particular, was familiar with the fact that Jackson’s prior doctors had given him large amounts of drugs, she wrote.
"Basically, the court concluded that the plaintiffs presented evidence that AEG could have known the problems with this doctor," Boyle said. "He was financially dependent, and deeply financially in debt, and basically that they had him close all his practices, so this was his only source of income."
In denying the breach of contract claim, Palazuelos concluded that Jackson’s heirs had failed to establish that financial pressure established a special relationship between AEG and Jackson. "Extending the special relationship doctrine to financial control would greatly expand the narrow and limited class of special relationships," she wrote. And AEG lacked total control over Jackson’s medical care, especially since Jackson saw doctors other than Murray.
"The facts may establish that Defendants gave some input to medical care, but there is no evidence that they undertook Decedent’s medical care in its entirety," she wrote.
In a separate order, Palazuelos granted summary judgment to Leiweke and Anschutz Entertainment Group, concluding that neither had a special relationship with Jackson or had hired Murray.
In another order, Palazuelos ruled that several documents provisionally filed under seal under a protective order, including emails among AEG executives, should be made public. She did not unseal documents related to depositions of medical professions discussing Jackson’s health or his medical records.