Efforts by Michael Jackson’s mother and children to pin at least a portion of the blame for the singer’s 2009 death on the promoters of his planned comeback tour will come to a head in a courtroom next week.
Los Angeles County, Calif., Superior Court Judge Yvette Palazuelos was scheduled to consider defense motions for summary judgment on February 25, ahead of an April 2 trial date. 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.
Katherine Jackson and Michael Jackson’s three children have accused AEG Live LLC of negligence and breach of contract in hiring Dr. Conrad Murray, the physician who was convicted of manslaughter for administering the singer a lethal dose of the anesthetic propofol to treat insomnia. They also accuse AEG Live of valuing profits over the singer’s health, forcing him to maintain a "grueling" rehearsal schedule despite knowing that he was ill in the days before 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 summary judgment motions filed last fall, the defendants moved to dismiss the allegations, arguing that none of them had a "special relationship" with Jackson that required them to protect the singer from his doctor — and that, in any event, no one could have foreseen that Murray would kill his own patient. They added that they hadn’t hired Murray, even though AEG Live agreed to advance his fee of $150,000 per month.
Anschutz Entertainment Group and Leiweke argued that they never had any relationship with Jackson at all.
"The most important thing to note is that Michael Jackson asked AEG Live to be his concert promoter, not his sobriety coach. AEG never assumed a duty to protect Michael Jackson from his longstanding private demons or from his longtime doctor," lead defense attorney Marvin Putnam, a Los Angeles partner at O’Melveny & Myers, wrote in an e-mail to The National Law Journal.
"AEG Live was Michael Jackson’s concert promoter. Period. As a result of that, AEG Live and Michael Jackson had professional and financial ties. But AEG Live never assumed any duties whatsoever with respect to Michael Jackson’s healthcare."
Kevin Boyle of Panish Shea & Boyle in Los Angeles, lead counsel for the plaintiffs, declined to comment.
WHO HIRED DOCTOR?
Murray was found guilty in 2011 of involuntary manslaughter and is serving a prison term of four years. The summary judgment arguments involve the legal obligations and relationships between AEG and Jackson.
"At the time of his death, Michael Jackson was under the immediate care of a doctor selected by, hired by, and controlled by AEG; indeed AEG demanded and required that Michael Jackson be treated by this particular doctor to ensure that Michael Jackson would attend all rehearsals and shows on the tour," Jackson’s heirs wrote in their first amended complaint, filed on March 26, 2012. "AEG had an employment contract with this doctor that, among other benefits, paid him $150,000 per month with his sole and exclusive job being to make sure Michael Jackson got to rehearsals and shows."
The relationship began with a January 26, 2009, tour contract between AEG Live and Jackson, according to the complaint. AEG then allegedly retained Murray, promising to pay for any medical equipment, supplies, treatments or assistants necessary to making sure the singer made it to rehearsals. Jackson, who was in substantial debt at the time, was in "no condition to say no to AEG," they wrote.
"AEG knew or should have known that it was jeopardizing Jackson’s health and safety by assuming control over the doctor-patient relationship between Jackson and Murray, and by directing and influencing Murray to act without regard to medical safety standards," the complaint alleged.
In his email, Putnam emphasized that AEG had not employed Murray, who was Jackson’s longtime physician. He added that Jackson, not AEG, directed Murray’s actions.
"Needless to say, nobody from AEG Live had any idea what Dr. Murray and Michael Jackson were doing in Michael Jackson’s bedroom at night," he wrote. "That was between Dr. Conrad Murray and his patient Michael Jackson."
In their summary judgment motions, the defendants denied they were under any duty of care to protect Jackson. Anschutz Entertainment Group and Leiweke added that they had no connection with Jackson and were never parties to the contract between Jackson and AEG Live.
"The only connection between Jackson’s death and defendants is that he was preparing for a tour produced by defendant AEG Live at the time he passed away. Despite two years of discovery in which defendants produced hundreds of thousands of documents, plaintiffs still have no evidence to support the wild allegations in their amended complaint," Putnam wrote in one of the summary judgment motions.
The defendants denied that they financially pressured Jackson into going to rehearsals despite his ill health. Although AEG advanced Murray’s monthly fee, Jackson was responsible for paying his salary, they wrote.
Furthermore, a draft contract between Murray and AEG was never executed before Jackson’s death.
"Jackson, an intelligent adult who plaintiffs concede was capable of managing his own business affairs, voluntarily entered the Agreement on January 26, 2009," Putnam wrote in the motion. "That Jackson felt pressure to work to meet his financial needs makes his situation no different from that of most Americans."
THE FIGHT OVER DOCUMENTS
During next week’s hearing, Palazuelos may rule on whether to seal a range of documents related to the summary judgment motions. Many of documents in the case have remained confidential, having been filed provisionally under seal under a protective order issued by Palazuelos on January 11, 2012. For example, only a redacted portion of the defense summary judgment motion has been made public. The documents the defense wants to seal involve details of Jackson’s health, including medical items found at his Beverly Hills, Calif., house following his death; personal, business and other confidential information provided by Kenneth Ortega, director of the tour; and confidential and private discussions among the tour’s producers and directors. The defense also wants to seal documents provided by the Los Angeles County district attorney’s office, which prosecuted Murray.
Jackson’s heirs, in a February 8 court document, noted that the defendants have earmarked 90 percent of the discovery material as confidential; the First Amendment, they wrote, imposes a high burden to seal so much of the case.
They opposed the sealing of any documents except depositions from medical professionals discussing Jackson’s health or his medical records. They also opposed the sealing of internal emails and other communications among the AEG defendants and other parties to the case who had no knowledge of Jackson’s medical condition.
This actually is the second fight over confidential documents in the case. On September 2, a report in the Los Angeles Times cited hundreds of pages of confidential emails among the defendants indicating that AEG executives had pressed ahead with rehearsals despite serious concerns about Jackson’s mental and physical health. Lloyd’s of London, which had sued AEG for failing to disclose Jackson’s drug use when taking out an insurance policy on the pop star, dropped the concert promoter from the case after the company abandoned its $17.5 million claim against that policy.
The defendants moved for sanctions against the plaintiffs’ attorneys, accusing them of leaking those documents in violation of the protective order. The defendants sought sanctions of $50,000, plus $1,500 to be paid to the court and an order excluding any document related to the leak.
The plaintiffs’ attorneys targeted by the sanctions motion were Boyle and fellow attorneys Brian Panish, Peter Polos, Robert Glassman and Jennifer Farrell at Panish Shea & Boyle; K.C. Maxwell of the Law Office of K.C. Maxwell in San Francisco; Michael Koskoff and Bill Bloss at Koskoff Koskoff & Bieder, a personal injury firm in Bridgeport, Conn.; Perry Sanders Jr. of the Sanders Law Firm, a personal injury shop in Lake Charles, La.; and Sandra Ribera at San Francisco’s Ribera Law Firm, also specializing in personal injury. The plaintiffs’ attorneys insisted that they had not provided the leaked documents.
On November 5, Palazuelos denied the sanctions order, ruling that the defendants hadn’t provided evidence sufficient to prove a willful violation of the protective order. But on February 13, she ordered that those documents remain sealed.
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