Jacksons vs AEG - Day 16 – May 22 2013 – Summary
Katherine, Rebbie and Trent Jackson are in court
Shawn Trell Testimony
AEG Cross
Trell was first asked about contract between AEG and Jackson’s former manager, Tohme R. Tohme. (AP) Jessica Bina asked Trell about an agreement regarding former manager Tohme Tohme. He was employed by Jackson and contract added duties. Compensation is detailed in contract. There was a condition precedent. Trell refers to cancellation insurance in tour agreement. Trell: while this agreement started in January, the conditions/terms not met. If Tohme would've performed as specified, would've been paid. (ABC7) Shawn Trell said Tohme’s agreement called for him to get paid once cancellation insurance was secured. Tour cancellation insurance wasn’t obtained for “This Is It” tour until late April, after Tohme had been fired. (AP)
Trell: To pursue Jackson's interest films, AEG would put up a million dollars for development. They contemplated making 3 films. (ABC7) Trell was also asked about an agreement Jackson signed in Jan. 2009 for a possible three-film deal. The film agreement would have allowed Jackson to get $1 million to develop a script for an AEG-owned film company. Trell said the initial project Jackson was interested in was connected to “Thriller.” He didn't offer any more details. He said by June 1, 2009, the film industry wasn’t interested in pursuing that project. June was deadline for the agreement to kick in. Trell said AEG offered to extend the deadline to Oct. 2009, but Jackson never signed the extension agreement. (AP) In addition to the tour contract between Jackson and AEG, Trell said the two also had an agreement that proposed developing up to three film projects together, one of which was related to his “Thriller” video. When nothing was developed by the agreement’s June 1, 2009, deadline, AEG sent a proposed amendment to extend that date to Jackson’s representatives, Trell said. (LAtimes)
“I think the interest was still there on Mr. Jackson’s side and I know we were interested in helping him realize what he wanted to accomplish,” Trell said. (LAtimes)
After discussing the possible film deal, AEG lawyer Jessica Stebbins Bina then asked him more about tour cancellation policy. (AP)Trell said it's always the artists obligation to obtain this form of insurance to pay back the advances. Trell: The cancellation insurance, whether one show lost or the entire tour, MJ was obligated to pay us regarding the production costs. Trell: AEG had obligation regarding advances. We don't secure insurance to cover profits, only to protect losses from cancellation.(ABC7) “We don’t secure cancellation insurance to secure anticipated profits,” only advanced costs, AEG lawyer Shawn Trell said. (AP)
Trell: It is not uncommon for an artist to have the assistance of a promoter. We have to be satisfied with the strength of the policy. Trell said insurance was $17.5 million. He said in the market place there was lot of skittishness; tabloid media possibility of skin cancer. (ABC7) He said the insurance broker was having difficulty at first getting cancellation insurance. There wasn’t a lot of interest and Trell said the underwriters in London were concerned about tabloid reports about Jackson’s health. Some reports referenced Jackson having skin cancer, which wasn’t the case. Broker suggested a med exam to alleviate concerns. The exam would involve blood and urine tests, filling out a questionnaire and the doctor reviewing 5 years of Jackson’s med records. (AP)
Broker suggested a NYC ear, nose and throat specialist, who was flown out to Los Angeles and evaluated Jackson. The doctor had to provide his resume and sign a confidentiality agreement before examining Jackson in early February 2009. Trell said he never saw the medical records from Jackson’s exam, and has never seen an artist’s records after a physical. Trell was asked if he ever heard about results of Michael Jackson’s February 2009 physical exam. (AP) Trell said the exam took place in February 2009, and that although he wasn’t privy to Jackson’s medical records, he was satisfied. (LATimes) Trell never saw results because of confidentiality, but testified that Taylor later told him: "Other than a slight case of hay fever, he passed with flying colors." (AP)
Trell says that he received report from insurance broker about the exam. "Other than a case of hay fever, Jackson passed in flying colors." (ABC7) Trell: The broker’s “exact words to me were, ‘Other than a slight case of hay fever, he passed with flying colors.’” (AP)
After the exam, AEG was able to obtain a $17.5 million cancellation policy for Jackson’s “This Is It” concerts. Jackson was referred to as “Mark Jones” in the documents to mask his identity. The policy covered first 30 shows at O2 Arena. Trell said it was unusual for an artist to be listed under a different name on an insurance policy in his experience. (AP) AEG ended up securing a $17.5-million insurance policy that listed among its exclusions “the illegal possession or illicit taking of drugs and their effects.” (LATimes) AEG had a $17.5 million "non-appearance" policy on Jackson should he fail to perform the first 13 of his 50 shows at London's O2 Arena, Trell said. But the insurers wouldn't cover illness until Jackson underwent a second medical exam to be performed in London by a doctor selected by the insurers. (AP)
Bina: you wouldn't go out to get a policy for an artist with an illicit drug problem? Trell: no, because it wouldn't be covered (ABC7)
Trell: If someone died and the artist was so distraught that the artist could not perform, that loss would be covered by this policy. (ABC7)
Bina: We're you ever able to get more insurance coverage? Trell: No, because concerns over what marketplace saw in media reports. List of what appeared on tabloids: Mj using a wheelchair, back injury, lupus, cancer, cosmetic procedures, lung infections. Trell said there was no mention of drug abuse, alcohol abuse, sleep disorder.(ABC7) Trell said he continued to check in with Taylor to see if the marketplace had changed and the coverage could be increased because it was unusual for the insurance not to cover the entire advance made. “We were just trying to bridge the gap between cost and expense,” he testified. A second insurance physical was scheduled for July 6, 2009. “We had no reason to believe that he wouldn’t pass,” Trell said. (LAtimes)
On June 25, 2009, at 5:54 a.m., London time, Taylor sent an email to Dr. Conrad Murray, who had been brought onto the tour to tend to Jackson. The email, introduced as evidence in the case, read:
“The insurers have specifically requested information on the following:
Press reports on the artist at various times using a wheelchair, and whether any of these occasions were as a result of a medical issue.
Press reports that the artist had, or has, suffered a back injury.
Press reports that the artist is suffering, or has previously suffered from lupus.
Press reports that the artist is suffering, or has previously suffered from cancer.
Press reports that the artist was hospitalized in 2005.
Dates and brief details of any cosmetic procedures, and specific details of any complications.
Press reports that the artist has suffered from lung infection/emphysema and chronic gastrointestinal bleeding.
Press reports that the artist has minimal diet (is possibly anorexic).”
Jackson died hours later from a fatal dose of the anesthetic propofol administered by Murray.
Jessica Stebbins Bina, an attorney representing AEG, pointed out in the courtroom that the list of insurers’ concerns did not include drugs, painkillers, alcohol or sleep disorders. (LATimes)
Bina: Could AEG make a profit from cancellation insurance? Trell: No, only to cover losses (ABC7)
Trell said employees are insured by the company. Independent contractors are just that, that is why it is called independent. "Independent contractors have area of expertise needed to make the project happen" Trell said. It's expertise not within the company itself. Trell: We hire third parties for equipment, sound. They're usually referred to us or they are known to the artist. Trell: people responsible for the project would be involved in establishing rates and conditions, agreement is handled by me or my office. Trell: On a nightly basis when they leave the premises, they go home, that is the sanctity of their home, that is their business. Trell: It would be misguided for us to inject ourselves in the lives of those people. (Referring to members of an artist's entourage) (ABC7) “It would be misplaced or misguided for us to inject ourselves into the affairs of an artist,” Trell said. (LATimes)
It was Jackson who requested Murray, Trell said, and he believed the two had worked together for three years prior. (LATimes)
Bina: Did AEG have any role in choosing doctor Murray? Trell: No (ABC7)
Bina: Surprised to bring family physician on board? Trell: No we've had other tours where artists brought doctors for themselves/families (ABC7)
Trell said insurance was required based on the contract. Trell said they produced Prince's tour a few years ago, which was analogous to the "This Is It" tour. (ABC7)
Email on 5/21/09 from Wooley to Dr. Murray: Dear Conrad, I should like to send a contract to you in the next day or two But am looking for help writing the legal department because the form within which I work don't apply to your specialized position. So it has to be custom-generated. (ABC7)
5/28/09, Wooley to Dr. Murray He said the legal department has not yet completed the agreement which is rather specialized, rare event Email noted payment could only be made upon fully executed contract. Kathy Jorrie is attorney retained by AEG to work on Murray's contract.(ABC7)
Bina: Did Ms. Jorrie begin contract negotiations with Dr. Murray at your direction? Trell: Yes (ABC7)
6/15/09 Jorrie wrote to Wooley: I've attached draft for your review/comment. If you approved the attached, please submit copy to Dr. Murray (ABC7)
Contract: Provision 9 Artist Consent: The effect of this agreement is conditioned upon the approval and consent of the artist. (ABC7)
Contract: Without the artist's expressed and written approval of the agreement neither party to the agreement will have any rights obligations to one another arising from the agreement. Trell testified this was the first contract he saw this provision included (ABC7)
"Because of the personal nature here from MJ for this particular engagement of his personal physician," Trell explained. (ABC7)
Contract: The undersigned hereby confirms that he has requested producer to engage Dr. Murray on the terms set forth herein. Contract: on behalf of an at the expense of the undersigned: Michael Jackson (ABC7)
“My understanding is that he was going to be categorized as artist advance," Trell explained. “This was specific accommodation at the request of the artist as opposed to production cost incurred while mounting a show," Trell said (ABC7)
Trell said there's a final settling of the tour after the project is completed. That's where they categorize/re-categorize things. Trell said he doesn't do the final settlement himself, but people who do ask him questions about how it should be done. "My understating he was an Artist Advance," Trell said. MJ's company was responsible for both artist and production advances. "I'm not aware of MJ making objections to this provision," Trell said. (ABC7)
Bina showed Dr. Murray's last page of the contract signed by Murray. The agreement was between AEG Live Productions, LLC and GCA Holdings LLC and Conrad Murray. GCA Holdings is Dr. Murray's employer. "The intention was to make it (provision 9) expressly subject to have Michael's signature on it," Trell explained.(ABC7)
Bina shows the Recitals of the contract. In one of them, it says Dr. Murry was a licensed cardiologist. Contract Scope of Services: Dr. Murray will provide general medical care to the Artist... Contract: Such services will be administered professionally and w/ the greatest degree of care expected from members in the medical field. (ABC7)
Email on 6/23/09 from Kathy Jorrie to Wooley and Dr. Murray I've attached hereto a revised version of your agreement which incorporates all of the revision you requested. I have redlined the word version so that you can see all the revisions. (ABC7)
Redline: It changed the scope of services from producer to artist in the sentence: "Dr. Murray shall also provide such other services as are reasonably requested by Artist from time to time during the term hereof. "It was requested by Dr. Murray," Trell said (ABC7)
Responsibilities of GCA/Dr. Murray 4.3 Obtain, maintain and comply with all licenses or other approvals required by any applicable law or from any governmental agency or authority to permit or otherwise legally authorize Dr. Murray to perform any and all Services and to fulfill all of his obligations under this Agreement including in accordance with applicable laws in the United Kingdom. Present to Producer within two (2) weeks from the date of this Agreement documented proof of any and all licenses required for Dr. Murray to practice Medicine in the United States and to perform the Services under this Agreement. Present to Producer no later than July 3, 2009 documented proof of all licenses required for Dr. Murray to practice medicine i n the United Kingdom and to perfonn the Services under this Agreement to the reasonable satisfaction of the producer. (ABC7)
Contract included provisions to terminate the contract for failure to provide appropriate medical licenses to work in the US and UK (ABC7)
Trell spoke with individuals from AEG about MJ's physical condition. He said he was told MJ seemed fine and the performances were terrific. (ABC7)
Email on 6/20/09 from Ortega to Phillips: Finally, it's important for everyone to know, I believe that he really wants this it would shatter him, break his heart if we pulled the plug. He's terribly frightened it's all going to go away. He asked me repeatedly tonight if I was going to leave him. He was practically begging for my confidence. He broke my heart. He was like a lost boy. There still may be a chance he can arise to the occasion. If we get him the help he needs. (ABC7)
Trell said he was in the courtroom when Travis Payne testified. He remembers Payne saying MJ looked like he had flu-like symptoms on 6/19/09. "Everyone mentioned chilling or cold, but no one definitively stated at the time what was going on," Trell said. (ABC7)
Bina: Did you speak with Mr. Phillips about his interaction with Dr. Murray? Trell: Yes
"My understanding there were two meetings in which Dr. Murray attended and MJ was present," Trell said. He knew one on June 20th, and another one in the beginning of June, but he didn't know the date. (ABC7)
Meeting on June 20th: Dr. Murray, Michael, Randy Phillips and Kenny Ortega. "Firstly, Michael indicated he was fine, just fine," Trell said. Trell: Secondly, Dr. Murray scolded Kenny Ortega for raising concern, that he was taking care of Michael and he was just fine. There were no rehearsals on 21st and 22nd, Trell said, and MJ rehearsed on the 23rd and 24th. "He appeared fine and the rehearsals were terrific," Trell said he was told. (ABC7)
On June 25, Trell said there were two people that represented Michael Jackson in some management capacity: Dr. Tohme and Frank DiLeo. Trell said that MJ's Estate ultimately approved the productions advances incurred in the tour. (ABC7)
Bina: Does AEG Live does background check on its employees? Trell: credit history may be requested when related to the position at issue (ABC7)
Jackson redirect
Panish only got about 15 mins of questions in at the end of the day. He immediately went at Trell on his recollection of dates, details. (AP)
Brian Panish: Have you seen documents where Dr. Murray is referred to as a consultant? Trell: I don't recall (ABC7) Trell said he was very, very involved in the "This Is It" tour. (ABC7)
He started out by asking Trell if he was certain that Jackson signed the "This Is It" agreement on Jan. 26, 2009, as he'd testified. Trell said he was certain he'd testified correctly about the events of the day, but conceded toward the end of several questions that he might have been wrong about the exact date. (AP) January 26, 2009 was the first and only time Trell met with Michael Jackson. "I'm sure it was the only time I met MJ." "I won't forget meeting Michael Jackson," Trell said. "He seems very personable when I met him, I thought it was very interesting when he got up and met me at the door," Trell explained. (ABC7)
Panish asked Trell if it was appropriate for AEG to use derogatory terms to refer to an artist. "I think people have their own impressions, and thoughts and feelings about Michael Jackson," Trell explained. "I may not necessarily agreed with some of the life choices he made," he said, adding "I won't forget meeting him that day." (ABC7)
That's when plaintiff's attorney Brian Panish showed the emails. (AP)
Email on 1/28/09 from Gongaware to Phillips: MJ still on today, right? Panish noted the contract signing was on the 28th and not 26th as Trell referred to. (ABC7)
Panish: You were wrong about that, sir? Trell: I was wrong about the signing date "I didn't have the date necessarily in my calendar, I didn't have the date in front of me," Trell explained. "I don't believe he was misrepresenting the truth. It was Wednesday 28, not Monday the 26," Trell said. (ABC7)
Hours before Anschutz Entertainment Group executives were heading to Michael Jackson’s Holmby Hills home to sign multimillion-dollar contractsfor his concert series in London, the firm’s top lawyer called Jackson “the freak” in an email to another company attorney. (LATimes)
Trell’s cross-examination began with Jackson attorney Brian Panish asking the lawyer about his visit to the singer’s house to sign the contracts, the only time he met Jackson. “It was exciting to meet Michael Jackson,” he said.
Panish began to built toward a climax, asking Trell if it were company policy to speak in derogatory terms about an artist they were about to sign a huge deal with. “I may not have necessarily agreed with some of the life choices Michael Jackson made but I certainly had enormous respect for him as an entertainer,” Trell said.
Then Panish gave the jury a foreshadowing of what was to come. He asked Trell, “Did Mr. Fikre say to you that Michael Jackson was a freak?” a reference to Ted Fikre chief legal and development officer and a member of the board of parent company AEG, before slowly unraveling the emails. (LATimes) The email chain starts Jan 28, 2009, with AEG Live executive Paul Gongaware writing Randy Phillips, president and chief executive of AEG Live, “MJ still on today?”
Phillips emails back. “Yes. 5 p.m. 100 Carolwood Dr. You and Shawn should be there,” referring to Trell.
From Trell to Ted Fikre (attorney on the board of AEG) on 1/28/09 FYI...
From Fikre to Trell on 1/28/09, in response, three minutes later Does this mean you get to meet the freak?
Trell replies, “Apparently. Not sure how I feel about that. Interesting for sure, but kind of creepy.” (LATimes)
Panish to Trell: "This is the kind of respect that your lawyer shows to this artist, referring to him as a freak?" (AP) Panish: And this is the kind of respect your lawyer shows to the artist referring him as a freak? Trell: you have to ask Mr. Fikre (ABC7)
Panish: Have you ever told Mr. Anschutz that his general counsel at AEG referred to MJ as a freak? Trell: No (ABC7)
Panish then scolded Trell as he sat in the witness box. “Didn’t your mother ever tell you if you don’t have anything good to say about someone not to say it?” (LATimes) AEG objected to the question. Some of the jurors laughed. Judge sustained the objection that Panish's question was argumentative. (AP)
Trell returns to the stand in the morning to undergo more questioning from Panish.
"I’ll see you in the morning," he brusquely told Trell. (AP)
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Outside the court :
"That email just exemplifies that AEG had no respect for Mr. Jackson.," Panish said outside of court. "All he was was a vehicle to make money and to promote their concert business to catch up to Live Nation." (AP) Panish cont'd: We're going to continue to prove that for members of the board and attorneys to refer to him as that is disgraceful we're going continue to show and prove what AEG is all about. This was just the tip of the iceberg." (ABC7)
Jessica Stebbins Bina, a trial defense lawyer for AEG, said the emails were shown merely to embarrass AEG. "We are four weeks into trial and we have yet to hear one piece of substantive evidence," said Marvin S. Putnam, an attorney who is leading AEG's defense. (AP)
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Shawn Trell will continue to testify. Gongaware is next witness. Karen Faye will complete her testimony next week.