Michael Jackson Case Could Have Set Scary Precedent
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Law360, New York (October 08, 2013, 1:57 PM ET) --
Ryan Kerns
Ryan Kerns
“Plaintiffs want you to hold a concert promoter responsible for Michael Jackson’s overdose.”
This is how AEG Live LLC’s attorney, Marvin Putnam, started his closing argument. With all of the emotion swirling around the tragedy of Michael Jackson’s death and the subsequent civil lawsuit filed by his mother, Katherine Jackson, this is the scary precedent that gets lost. Can the law hold a concert promoter responsible for the drug overdose of an artist at the hands of his criminally culpable doctor?
After a hard-fought and contentious five-month trial, the verdict in the Katherine Jackson v. AEG Live civil negligence lawsuit rested in the hands of 12 jurors, and after listening to closing arguments, that’s exactly where Katherine Jackson’s attorney Brian Panish wanted it.
There was potentially more than $1 billion at stake in this lawsuit. That number may strike some people as fair and others as outrageous. It is extremely difficult, if not impossible, to quantify the value of a human life and what that person means to his or her children and family.
The calculations become even more complex and the figures even more staggering when a jury attempts to calculate the future earning potential of a superstar entertainer like Michael Jackson. AEG Live announced that 750,000 tickets for Michael Jackson’s This Is It tour sold out in only four hours, so it is evident that Jackson could still earn at the highest level.
Much of this case came down to a battle between law and emotion, and this is borne about by the stylistic difference of the two lead attorneys.
Putnam played the part of law professor in closing arguments, using charts and graphs and discussing the technicalities of contract and negligence law. Panish’s closing arguments were filled with pleas for justice, professionally edited videos of Jackson’s life, poems written to his mother and tear-jerking tributes.
Panish’s presentation was highly effective, tears were flowing in the courtroom, and even though he told the jury at the outset that they were not allowed to consider sympathy in their verdict, he did his best to engender as much of it as possible.
Undoubtedly, Michael Jackson’s death was a tragedy, and one that could have been avoided if Dr. Conrad Murray had not violated his Hippocratic Oath by providing Jackson with a dangerous drug, propofol, which according to expert testimony should only be used by an anesthesiologist in an operating room, and which the Los Angeles coroner determined caused Jackson’s death by overdose.
For his conduct, Murray was convicted of involuntary manslaughter and sentenced to the maximum of four years in prison. There is some degree of justice there.
In this civil case, however, Katherine Jackson asked for more than $1 billion from the concert promoter. The dollar amount isn’t what was most concerning about the potential verdict in this case. After all, as Panish reiterated often in his closing, AEG Live is in the business of making money — and they do have a lot of money.
The danger in returning a verdict in favor of the plaintiff and awarding a significant amount of damages was the potential to create unreasonable standards for businesses to operate and a loss of privacy rights for employees and independent contractors. How thorough of an investigation is a concert promoter required to undertake?
I want to focus on two of the requirements included in the jury instructions that the plaintiff must prove in order to sustain a claim of negligent hiring or supervision against AEG Live.
First, plaintiff must prove that Murray was “unfit or incompetent to perform the work for which he was hired” and second, that AEG Live “knew or should have known that Dr. Murray was unfit or incompetent, and that this put others at risk of harm.”
“Propofol might not be the best idea,” Panish said during his rebuttal argument. “But if you have a competent doctor, you’re not going to die.”
Murray was a medical doctor who previously had never received a malpractice claim against him, was fully accredited and licensed, attended a respected medical school, and had reputable internships and residencies. He was also personally chosen by Michael Jackson. No evidence of incompetency as a doctor was shown during trial, only evidence of bad decisions made in private with Jackson.
Murray ended up betraying his oath and occupation with his actions that led to Jackson’s death, but how can we say that he was incompetent? And even further, how can we say AEG Live should somehow have known? These questions did not have satisfactory answers during trial.
Two of Panish’s key arguments were that AEG Live should have discovered Murray’s financial problems or somehow figured out that he was providing unethical treatment.
Requiring a concert promoter to complete a financial background check on a doctor or invade the doctor-patient relationship to check on the private decisions of a performer places an unreasonable burden on the promoter and permits a highly intrusive invasion of privacy into the artist’s life.
I don’t think I’ll receive too much opposition when I say that a recreational drug culture exists in the music industry. Decades of rock star decadence have been portrayed in movies, documentaries and all too often, in obituaries. It is also not debated that many famous musicians bring doctors on tour with them. The examples of the Rolling Stones, John Denver and Celine Dion were presented by Putnam during his closing.
Should the law require any company promoting a concert to inquire into the specific treatment those doctors are providing? Is this not why we have doctor-patient confidentiality? There are any number of medical ailments, concerns or treatments that any person would want kept private.
A concert promoter should not be required to observe treatments in the privacy of an artist’s house just on the off chance the doctor will commit a criminal act.
This argument becomes even more problematic for Panish if you consider that requirement from Michael Jackson’s perspective. If AEG Live had inquired further into Murray’s treatment or asked to observe his late-night medical sessions, should Jackson have even let them observe?
It seems pretty clear he wouldn’t want them to, as evidenced by the locked doors, security and secrecy; but, if AEG Live did inquire, should Jackson let them in to his private chambers? He was in his private bedroom with his private doctor.
What right does a concert promoter have to violate his privacy in such an intrusive fashion? So why should the law require that AEG Live investigate at this level?
A verdict in favor of Katherine Jackson could have established a precedent whereby the law would require that all employers as well as any party hiring independent contractors (like a plumber or electrician, to use the examples brought up during closing arguments) be responsible for the bad decisions and drug use of others.
Individuals are allowed to make their own decisions. Michael Jackson was not a juvenile. He was a 50-year-old man, and he made a bad decision choosing to allow Murray to administer propofol.
After almost three days of deliberations, the jury returned a verdict in favor of AEG, finding that the plantiff was unable to prove that Murray was unfit or incompetent for the job he was hired to do. While reasonable jurors could have reached different conclusions on this question, the jurors performed their duty admirably. What is clear is that had emotion led to a verdict in favor of Katherine Jackson, the law regarding the tort of negligent hiring and supervision would be left in a state of disarray.
--By Ryan Kerns, Wild About Trial
Ryan Kerns is a Los Angeles-based solo practitioner and a contributor to Wild About Trial.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
http://www.law360.com/articles/478810/michael-jackson-case-could-have-set-scary-precedent
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Media & Entertainment MVP: O'Melveny's Marvin Putnam
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Law360, New York (November 15, 2013, 6:33 PM ET) -- In one of the most highly publicized trials of the year, O'Melveny & Myers LLP partner Marvin Putnam convinced a jury that Anschutz Entertainment Group LLC was not liable for Michael Jackson’s death, earning him a spot on Law360’s list of Media and Entertainment MVPs.
Putnam persuaded the six-woman, six-man Los Angeles jury to reject the claims by Jackson’s mother and three children — who had asked for $1.9 billion in damages — that the concert promoter was responsible for the late pop star’s death, during a high-stakes public trial that lasted six months. Jackson’s family accused AEG of negligently hiring and supervising Dr. Conrad Murray, who gave the music legend the fatal overdose of the powerful anesthetic propofol.
The media and entertainment lawyer said one of the biggest challenges of the wrongful death trial was its sheer length.
“You have to become really biopic and focus on nothing else every waking hour but the case,” Putnam told Law360. “And it’s hard to sustain that for any amount of time, so to sustain that for six months is a feat.”
Putnam also said an obvious challenge of the case was having Michael Jackson, a world famous figure of “mythic proportions” whom a lot of people have favorable ideas about, on the other side. It was hard asking a jury to not award damages to Jackson’s grieving mother in what he called “an incredibly sad situation,” but AEG was not at fault, he said.
After Jackson’s mother and children initiated the case last year, the entertainment lawyer also persuaded a Los Angeles Superior Court judge in February 2012 to dismiss a separate wrongful death suit brought by Jackson’s father, Joseph Jackson, without leave to replead. Putnam argued that the separate claims failed to comply with California’s long-held “one action” rule, which mandates that only one wrongful death suit be filed jointly by all heirs and prevents those who do not join from filing claims later.
The win in the Jackson case was part of a string of victories the lawyer scored for AEG and several other clients over the past year.
Putnam convinced a community activist coalition to end its efforts to block AEG’s proposed construction of a $1.5 billion Farmers Field football stadium in downtown Los Angeles earlier this month. The suit, brought by Play Fair at Farmers Field Coalition, had challenged the constitutionality of a law that amended California’s environmental review process. Putnam struck a deal in which AEG agreed to contribute $17 million to numerous community initiatives, including funds to bolster low-income housing in the neighborhood, in exchange for the coalition's dropping the suit.
Putnam said that Los Angeles really wants and needs an NFL team and that he felt honored and privileged to have worked on the case to prevent the potential roadblock.
“It’s difficult when you have a client like AEG that a lot of people can look at and say, hey, I got a payday here for me,” Putnam said. “It’s important to not allow that to happen or else you open the door for that to happen.”
Last October, Putnam represented AEG affiliate Bristol Bay Productions LLC in a $50 million consumer fraud action brought against publisher Simon & Schuster Inc. for artificially inflating book sales. Bristol Bay said it had produced the film “Sahara” after relying on misrepresentations that author Clive Cussler had sold 100 million books, when he actually sold about 40 million.
The case was first dismissed on preclusion grounds because of an earlier suit the author had filed against the publisher, which Putnam successfully tried. But the lawyer argued that the finding was not consistent with long-standing Colorado law and convinced the state’s Supreme Court to grant certiorari on the dismissal. Both parties await the ruling.
In yet another case, Putnam landed a victory for Siegfried Fischbacher and Roy Horn, stars of Las Vegas’ Siegfried & Roy show, when in July the Ninth Circuit ruled in favor of a substantial sanctions award Putnam had obtained against the plaintiff, who appealed on the grounds that the award was unprecedented and misused a federal statute.
Putnam, who has represented the entertainers against a series of harassment claims for years, initially blocked the sale and dissemination of a sex tape through a temporary restraining order and secured the dismissal of a federal action and most of a state action.
He told Law360 his strong oral argument skills come from extensively preparing the case from the beginning by learning what happened, talking to all the people involved and looking at the law broadly and deeply over a period of time. The lawyer also said understanding the personalities in each case is a crucial element of that preparation.
“If you understand the people involved, then you understand what happened and why,” Putnam said.
Putnam began concentrating his practice on the media and entertainment industry 10 years ago, when he moved to Los Angeles and realized it was the best practice in the region. He joined O’Melveny & Myers for its trial team and cutting edge trial litigation, he said. Prior to his work in the entertainment industry, he spent years in high-stakes litigation for corporate clients, including ExxonMobil Corp., Barclays PLC and General Electric Co.
The most rewarding part of his job is defending someone’s reputation and good name, he said.
“In the Jackson matter, AEG had been excoriated in the press for years for their supposed hand in Michael Jackson’s death,” Putnam told Law360. “Well, those allegations were without any merit at all, but the world did not know that. It was great to get to show the truth — that AEG had done nothing wrong. I like defending against such scurrilous attacks.”
http://www.law360.com/articles/489159/media-entertainment-mvp-o-melveny-s-marvin-putnam