Jacksons vs AEG - Day 41 – July 1 2013 – Summary
Katherine Jackson is not in court.
Jean Seawright, Human Resources Expert for Jacksons
Jackson direct
Jackson's attorney, Brian Panish, is questioning Jean Seawright, a Human Resources consultant. She has her own company, helps clients find, hire, train, compensate, terminate workers; basically the entire life cycle of an employment. Seawright said human resources relates to the people and the workers in a business. She has clients in various line of businesses: pest control, law firms, restaurants, car dealerships, hospitals, etc. Seawright has BS in Chemistry, has consulted in the field of HR for 25 years, advising owners and managers of human resources practices. (ABC7) Seawright has her own HR-consulting company based in Florida, but has clients in different parts of the case. (AP)
Seawright said there are several types of background check, including driving, criminal, credit and social security check. Depending on the reports, the cost can be as low as $5, background check from $10-15, $25 with other fees, Seawright testified.
(ABC7)
She has testified in around 16 court cases, including one in which an employee killed a supervisor. The worker had a previous murder conviction, but no background check had been done, Seawright said. (AP) Seawright has testified in approximately 16 cases. Being an expert witness composes about 10% of her company's revenue.She charges $300/hour and has works a little over 100 hours in this case, Seawright testified. (ABC7)
Seawright has never works in the music or show producing industry, but said that she's qualified to testify since HR principles are the same. (ABC7)
She said her goal is to hire workers who are fit for the position and who are not going to put themselves or others at risk. Seawright said she doesn't differentiate independent contractors and company employees, since it's just a classification/label of a worker. "The same risks exist, regardless of the label," Seawright explained. "You can't manage what you don't know," Seawright said. "It's important to understand what the history of what an individual is before hiring them," Seawright explained. She said that knowing the background of workers diminish the risks of the hiring. Seawright explained smart hiring process, which can minimize the risks and hire a competent and fit employee. (ABC7) Seawright said she doesn’t advise different procedures for checking the background of an employee vs an independent contractor. Doing background checks is relatively inexpensive, Seawright said. A Social Security number check might cost $5, criminal check up to $30. (AP)
Panish asked assuming Paul Gongaware knew MJ had prescription drug issues, would that knowledge be critical in hiring a doctor for MJ? "Yes indeed, it would elevate the risk even higher," Seawright answered. Seawright: The organization knows the potential to harm the artist, they have information about the parties, which would elevate the risk.(ABC7)
Attorney Brian Panish asked Seawright a hypothetical question. He told her to assume AEG Live hired Conrad Murray at MJ’s request. Panish asked whether Seawright believed AEG followed adequate hiring practices. She said the company didn’t follow good hiring practices. She said she would have considered Murray performing a high-risk job due to several factors. The factors included Murray working in Jackson’s home, having access to confidential info and the singer’s family and giving medical care. Seawright said in Murray’s case, she would have recommended the following checks: criminal, credit and driving history. She would have also recommended a verification of Murray’s Social Security information. Panish questioned whether the absence of a criminal record would be enough of a check. Seawright said no. In forming her opinion, Seawright said she relied on the testimony of Dr. Matheson and other witnesses during the trial. (AP)
"They did indeed fail to follow adequate hiring practices," she testified Monday.Serving as a personal doctor for Michael Jackson was "a very high risk position" that warranted a background check to determine if Murray was fit for the job, competent to do the work and did not have a conflict of interest, Seawright testified. A simple credit check -- taking five minutes and costing less than $10 -- would have revealed the conflict of interest, she said. Credit checks are routine for many companies hiring for high-risk positions, she said. (CNN)
"I'd recommend criminal background check, credit and motor vehicle check and a social security verification on Dr. Murray," Seawright said. "Dr. Murray was in position of administering medical care but was paid by company that had the ability to stop the tour," Seawright said. "Had that happened, Dr. Murray would not be able to continue to work, he was in a conflict of interest," Seawright continued. (ABC7)
She said she saw no evidence of AEG conducting checks on Dr. Murray. Panish showed a chart of AEG's process to check out people, which separates employees from independent contractors.(ABC7) Panish displayed a board with a blowup of an AEG Live exhibit that their corporate attorney, Shawn Trell, used in his testimony. The board was titled “AEG Process to Check Out People.” It drew distinctions between employees and independent contractors. Panish gave Seawright a red marker and asked her to write whether they were processes that reflect standard human resources practices. Seawright said some of the processes including on the AEG exhibit were standard practices. Others were not. There were seven items on the procedures for Independent Contractors. Seawright wrote that none were standard practices. The processes included relying on a previous working relationship with AEG, or being known to the artist. She said requiring an independent contractor to be fully insured and indemnifying AEG from liability benefited the company. She said using a process like AEG employed could lead to harm. She said an independent contractor can cause as much harm as an employee. Seawright said at the minimum, AEG Live should have done a credit check on Conrad Murray. AEG Live’s lawyers objected to some of the questions Seawright was being asked, but judge allowed her to respond to most of them. (AP)
Seawright said there are risks involving employees who are not necessarily dealing with money. The expert said that looking at someone's professional license is not enough to qualify a potential worker. Seawright went through all the procedures AEG has in place to hire independent contractors and said most of their process only protects AEG. Seawright said the label of the employee doesn't change the fact that the company is responsible for the hiring of fit and competent person. Panish: Could independent contractors cause the same damage as employees? Seawright: Yes (ABC7)
Seawright said background checking minimizes the risk of hiring someone. Seawright opined that just including in the contract that Dr. Murray needed to be licensed is not sufficient to determine his competency. "I did not see any evidence in my review of documents and testimony," Seawright said about AEG checking Dr. Murray's medical license. "You can't just always take people's word" Seawright explained, saying that until you check their credentials you don't know if they are fit. (ABC7)
Panish: Did you see anything that qualified Dr. Murray as extremely successful? Seawright: I saw nothing that was done to determine that. Seawright talked about Phillips' email where he said Dr. Murray was extremely successful and didn't need the gig. She said Phillips acknowledged what the criteria was, that they needed someone ethical and unbiased"The email is a recognition by Mr. Phillips to hire someone who doesn't need the gig," Seawright opined.. (ABC7)
Seawright then testified about an email from AEG Chief Executive Randy Phillips to tour director Kenny Ortega, in which Phillips said Murray was “extremely successful” – noting “we check everyone out” – and “does not need this gig, so he is totally unbiased and ethical.” Seawright said that email indicated Phillips understood the criteria for the job and that AEG had a process in place for examining its workers. When asked if she saw evidence indicating the company in fact “checked out” Murray’s background, she replied: “I did not.” Ultimately, she said, the email indicated AEG was in a "sort of trap … where if you don’t check out a worker adequately, then you are in a situation like this.” “It was Mr. Phillips saying what he hoped was the case but we later found out was not the case,” she said. (LATimes)
Seawright said entertainment companies are not different from others, HR is practice across businesses lines to find fit, competent workers. No matter what business you are, you need to follow HR protocols, Seawright said.(ABC7)
The expert explained the credit check is used to determine whether or not the person met all his/her obligations, if there had any default. Seawright explained the problem is not the debt at all, it's the fact you are in default of the debt, that you haven't met your obligations. She said credit checks are inexpensive, cost between $5-8 and takes about 5 minutes to get the report. As to Dr. Murray, Seawright said AEG should have done, at minimum, a credit check. MJ was just a referral of Dr. Murray, Seawright said, and AEG should've done further investigations on him. Seawright said Dr. Murray was going to be in MJ's house, would have exposure to confidential information, so he needed to be checked out. Moreover, Dr. Murray would be providing medical care to MJ, and AEG should've checked him out, the expert opined. To get a credit report, you have to have the individual's consent, Seawright said. (ABC7)
The expert analyzed an email from outside counsel Kathy Jorrie to Phillips recommending background check on Dr. Tohme. (ABC7)
During deposition, AEG's attorney Jessica Bina showed study where out of 158 employers 3 % indicated they did credit check in healthcare. Another part of the survey related to employees working at people's homes, in which 30% employers conduct credit checks, Seawright testified. Panish: Could AEG have done a background check on Dr. Murray? Seawright: There's no question they could've done that, if they wanted to. "Being in debt is just having debt," Seawright explained. "But default is not paying the debts." (ABC7)
Dr. Murray had three different social security numbers in his credit report, according to LAPD Detective Orlando Martinez. Seawright said AEG could've run Dr. Murray's background and would've gotten the same information Det. Martinez received. (ABC7)
Panish: Do you know any special rules that apply to AEG Live? Seawright: No (ABC7)
Nothing further from plaintiff.
AEG Cross
AEG's attorney Jessica Stebbins Bina did cross examination.
Bina asked if all the opinions Seawright offered are based on the assumption that AEG, not MJ, hired Dr. Murray. She said yes. Seawright said she did not analyze the info assuming Michael Jackson hired Dr. Murray. Judge told the jurors that ultimately they are the ones who are going to decide who hired Dr. Murray. (ABC7)
Seawright Associates has four employees currently. Seawright said she has no idea if plaintiffs checked her background, but that she did not sign a release to check her credit. (ABC7)
Seawright said she never ran her doctors' background. She has not worked with concert promoters or the music industry. The expert said this is the 1st case where a person's credit history is major issue. The other cases involved criminal history and behavior (ABC7) She said the Jackson vs AEG Live case is the first one where a person’s credit history was an issue. Other cases involved criminal history. (AP)
Stebbins Bina tried to get Seawright to define the term “Independent contractor.” Seawright said there wasn’t a standard definition. The effort to define independent contractor prompted a lengthy sidebar. Afterward, Stebbins Bina read a definition from the dictionary. Seawright said the dictionary definition didn’t totally define what an independent contractor was. Seawright wouldn't define the term. (AP) The expert said there's no precise definition for independent contractor; there may be characteristics, but not a definition Bina gave hypotheticals to explain independent contractor. Most common background checks are criminal and reference checks, Seawright said. Seawright: It's important to be able to identify the best way to hire a worker, minimize the risk, determine if they are fit and competent. (Some jurors had their eyes closed at this point. It was very dry testimony, some audience members were sleeping.) (ABC7) A couple of the jurors seemed to be struggling to stay away during Seawright’s cross-examination. (AP)
A company can be accused of discrimination if the criteria involved in the hiring uses discriminatory practices, Seawright said. (ABC7)
Before the break, there was a tense session outside the jury’s presence on EEOC guidelines with regard to credit checks. AEG attorney Jessica Stebbins Bina asked Seawright about whether the EEOC now prohibits credit checks. Stebbins Bina showed the jury a printout from the EEOC website that she said showed the agency prohibited credit checks. Plaintiff’s attorney Brian Panish objected, and pointed out the printout doesn’t have a date on it. He said doc shouldn’t have been shown. Stebbins Bina acknowledged during the sidebar that she wasn't sure if the printout was a federal regulation, so she'll check on it tonight. Panish was extremely upset during the sidebar, saying Stebbins Bina and the judge erred by showing the printout to jury. He wanted the printout and comments about it made in front of the jury stricken from the record, but judge refused for now. Judge Yvette Palazuelos said she would wait to strike the printout and discussion from the record until she hears more about it tomorrow. (AP)
Outside the presence of the jury, there was a heated discussion about a document AEG showed to the jury. Bina showed an Equal Employment Opportunity Commission (EEOC) policy on credit check, saying it is a discriminatory practice. Jackson's atty Brian Panish argued vehemently that there was no foundation as to the date of the document and if it was in effect in 2009. Judge offered to take judicial notice of the document, but Panish said judge couldn't legally do it. Judge Yvette Palazuelos: is this is a regulation, rule, statute I can take judicial notice? Bina claimed the document, printed out of the website, is a policy and judge should be able to take judicial notice. She will look further. "The court should not allow that, plaintiff has been prejudiced by the misconduct of defendants' counsel," Panish told the judge. Judge read the document and noted it says "generally should be avoided", and it doesn't says it is prohibited. "It doesn't exactly say what you said," judge told Bina. Here's the text of the policy.
Document Pre-Employment Inquiries and Credit Rating or Economic Status: Inquiry into an applicant's current or past assets, liabilities, or credit rating, including bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question. (ABC7)
Panish said the document is not a rule, regulation or policy and asked judge to admonish the jury to disregard it. Panish said it's misleading, inappropriate, should not be presented to the jury and it's unduly prejudicial to the plaintiffs. Bina argued she thinks it's clearly admissible, doesn't think it's appropriate to instruct jury now. "I do not believe there's any error in showing this document to the jury," Bina said. "You, improperly, took judicial notice over my objection and I'm requesting to admonish the jury now," Panish requested Judge Palazuelos. Judge: if it turns out judicial notice was improper but admissible in other ground, it may be difficult to explain to the jury. Judge wants to make sure they get to the bottom of it, whether it is admissible or not, before instructing the jury one way or another. Judicial notice is a rule in the law of evidence thatallows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested that it cannot reasonably be doubted. This is done upon the request of the party seeking to rely on the fact at issue. Facts & materials admitted under judicial notice are accepted without being formally introduced by witness or other rule of evidenceand they are even admitted if one party wishes to lead evidence to the contrary. (ABC7)
Bina resumed cross examination, jury back in the courtroom. Bina: Dr. Murray had a medical license, right? Seawright: My understanding, yes. Seawright said that once she checked Dr. Murray's credit check it made him ineligible for employment, thus she didn't investigate further. "There was no need to," Seawright said, explaining the fact that Dr. Murray failed the credit history was sufficient to deny him employment. (ABC7)
Regarding Dr. Murray's contract "4.1 Perform the Services reasonably by Producer" Bina said it was an error and Producer should read Artist. Seawright said she saw contradicting testimony, several well-qualified people reviewed the contract and it wasn't changed in final version. (ABC7)