Here's KJ's motion of intent to move for a new trial
Katherine Jackson motion for a new trial
Four Jury Affidavits
Note: the documents also have 300 more pages of additional exhibits. They are trial, hearing, deposition transcripts as well as evidence (such as emails etc.)
So I have been reading the additional 300+ pages added as the exhibits and some points from the hearings
- there's a brief discussion about BAJI (book of approved jury instructions) versus CACI (california civil jury instructions). Panish mentions BAJI separates hiring, supervision and retention. CACI is apparently (as I gathered from a google search) is the simple, every day language version of BAJI where as BAJI is the more detailed and legalese version of the instructions. Judge says she prefers CACI. Panish says I don't say pick BAJI, he's more focused on explaining it to the jury.
- there are extensive arguments supervision (as we knew from before). AEG argues supervision cannot happen without hiring first, Jacksons argue supervision can happen without hiring. This is one of the reasons why AEG was against separating hiring, supervision and retention and preferred CACI.
- on September 12, Boyle argue adding "at any time" to Q2. judge replies that the question wording isn't limiting it to the time of the hiring. Judge says they can argue it to the jury and jury can say yes to the question ( at the time of hiring or treatment time etc). Bina argues "at any time" can confuse the jurors to think of a time period that includes after MJ's death.
AEG has filed their response to Katherine Jackson's motion for a new trial. Below will include the documents as well as a summary.
AEG filed a 19 page reply with exhibits. Exhibits included 7 juror affidavits.
AEG reply document link : http://www.scribd.com/doc/193606436/AEG-New-Trial-Reply
Summary as follows:
For Q2 AEG argues that it is taken from California jury instructions and it's a question that Jacksons requested and never tried to modify it or claimed it can cause confusion. AEG lists that Jacksons included and asked for Q2 at March 14, April 12, September 10, September 11 and September 12 motions or hearings. AEG also states that Jackson lawyers never asked to add "at any time" to Q2, they wanted to add it to Q3 (knew or should have known question).
Also AEG states that Q2 did not limit jurors to "date of hiring", it required them to consider "for the job which he was hired". Both parties expressed these points during their closing statements. Jackson lawyers mentioned it was at any time in both their closing and rebuttal. Panish said "at any time during his treatment" and during rebuttal he mentioned "it's not when they hired him only it's the entire time". Putnam never argued otherwise and he only focused on "for the job he was hired".
AEG says Jacksons never claimed Q1 could result in a confusion in Q2 and they also add that the jurors were instructed to consider every question separately. AEG also argues that in Jacksons always had "if you answered no stop" in all of their jury instructions.
AEG states that the jury verdict form is from CACI (Californoa Civil Jury Instructions) and it is according to the law.
AEG argues that the juror affidavits are inadmissible and that Jackson lawyers used improper and coercive tactics to get the jurors give those affidavits. AEG also files a separate motion to strike in regard to the jury affidavits. They state that the jury affidavits cannot be used about jury's subjective impressions about the deliberations. They state jury affidavits can only be used about a bias that is hid during jury selection process and coming to a verdict by chance. AEG also mentions that Jacksons got some affidavits in dishonest way. Finally AEG argues to reverse any judgment it should be shown that a different result would likely happen if that error wasn't present. So AEG argues it's not enough for Jacksons to show that if the wording was different the answer to Q2 would have been a yes, they need to show that every other question would be answered in their favor.
As for the negligence claim AEG argues the court heard and denied it twice and this is Jacksons third attempt to argue it. They are basically arguing that the court had the correct ruling and denied it twice and should deny it a third time.
AEG files 7 juror counter affidavits themselves. However as mentioned before they are asking the judge to strike any and all jury affidavits and only consider AEG jury affidavits if the judge will not strike Jackson jury affidavits. Basically they are asking the judge to throw all of them out but if she considers Jackson affidavits then consider AEG counter affidavits as well.
The 7 AEG jury counter affidavits link: http://www.scribd.com/doc/193605720/AEG-Jury-Affidavits
Jacksons have filed their reply to AEG's reply/ opposition. As the main points are same as their initial motion for a new trial, I'll just do brief updates.
- Kevin Boyle states that on September 11 he got an email from Deborah Chang about verdict questions and based on that during September 12 hearing he mentioned adding "at any time" to Q2 through Q5. He gave Q3 as an example. He accepted judge's ruling but did not abandon his argument, to the contrary he reserved it by making a record of it.
- Jacksons state that Panish and Putnam explaining Q2 isn't enough because court gave the jurors the direction that they should follow the law as she explains it.
- Jacksons state that they argued against Q1 (Did AEG hire Murray) and they claimed hiring is not necessary for supervision or retention claims.
- Jacksons main point in their reply is that Q2 did not allow the jurors to consider negligent retention or supervision or consider if Murray was unfit after he was hired / for the additional duties he was assigned.
- They mention that Murray's duties might have changed after his initial hiring and he might have assigned new tasks such as include being in charge of MJ's rehearsal schedule, make sure he got sleep (one footnote says :the provision of Propofol for inducing sleep in MJ), make sure that MJ got on stage and perform and "treating a deteriorating insomniac who was exhibiting debilitating and frightening symptoms".
- There's again mention of general negligence claim and how the judge was wrong in not allowing it.
- Jacksons argue that 4 juror affidavits they got shows the possibility of a hung jury and unless AEG can get 9 juror affidavits they cannot state that the outcome wouldn't be different regardless of Q2.
- Jacksons oppose to AEG's motion to strike juror affidavits stating they are "objectively ascertainable statements, conduct, conditions and events". Jacksons argue that the 4 juror affidavit they submitted among other things show that jurors only discussed hiring but not the conflict, did not discuss if Murray became unfit after hiring and they did not discuss supervision and retention theories.
- Jacksons state AEG showed no evidence that Jackson lawyers engaged in improper or coercive tactics to get the 4 juror declarations.
- Jacksons file their own motion to object parts of the 7 juror affidavits AEG submitted. They are objecting to the statements 4 of the 7 jurors made in their affidavits about Jackson lawyers (such as what Deborah Chang said to them, what Panish said to one jurors boss etc.) saying that they are hearsay and the statements lawyers made after the verdict is irrelevant to the new trial motion.
- Deborah Chang very briefly address the claims about her by saying she did not try to influence or pressure any juror. She attaches one of her notes of one jury interview after the verdict. Her only statement is that she drafted juror affidavits based on her notes about what the jurors said during the interviews after the verdict.
- Jacksons submit an affidavit by an investigator they hired in December to contact jurors and get the affidavits. She mentions she met with 4 jurors, read them the affidavits, 2 of them made changes and they signed the affidavits with no pressure and was unaware of the other juror affidavits.
- They mention they emailed another juror an affidavit drafted based on the notes of the interview they made. This juror calls them and says Deborah Chang might be mistaken and perhaps she mixed up what he said with another juror. Got them make changes to the affidavit and initially was willing to sign the changed version but the next day called saying he/she wouldn't sign the affidavit.
- Note: Chang's interview notes allegedly from this juror includes stuff like Q2 was too specific, that they looked to the contract and considered "general practitioner". Interestingly the notes also mention in the jury there were opposite views and 2 people made it clear they would vote in favor of Jacksons no matter what and 2 people who would vote against Jacksons. This juror also commented that if they could get pass Q3 , Q4 and Q5 would be easily answered in Jacksons favor.
- Panish submitted an affidavit saying that he met with one of the jurors boss in a social setting and he states in a joking manner he said the juror was against them. He says he never made any comment about the intelligence of the juror. Panish says he also asked the juror's boss if they compensated the juror for the whole time. Juror's boss told Panish that they never had an employee who was on jury duty for that long and the company agreed to compensate the juror the whole time.
And TMZ made a media request to cover (record/broadcast) the January 3rd hearing. It was denied.
Jacksons reply to AEG's opposition for a new trial http://www.scribd.com/doc/194326285/Jacksons-Reply-to-AEGs-opposition
AEG has filed a reply to Jackson's reply
This one is going to get a little technical so bear with me
- AEG states that the Civil Code of Procedure only allows for a motion for a new trial and an opposition to be filed so they claim Jacksons reply is not allowed by the law. AEG also states Jacksons did not file their reply brief 5 court days before the hearing as well. So they ask the judge to disregard Jackson's reply but if chooses to consider it also consider AEG's reply to it.
- In their reply AEG is claiming Jacksons have misrepresented the law and facts and that Jacksons started to mention new stuff in their reply such as "incompetent and unfit" wasn't defined or that 4 juror affidavits meet the burden of proof for the possibility of a different verdict (hung jury)
- AEG mentions that Jackson lawyer repeatedly asked for and included Q2 in their verdict forms and the transcripts also show that some of their claims aren't true. Such as Panish saying "I'm not saying pick BAJI" and so on. There's a whole section talking about how Jackson lawyers misrepresented section 647.
- AEG states Jacksons for the first time in their reply mention that "incompetent or unfit" wasn't defined and that was an error. AEG says not only this argument should be disregarded as it wasn't in Jackson opening brief and Jacksons should have asked for a definition to be given to the jurors while they are preparing the verdict forms. Also AEG states that Jacksons failed to show that "incompetent or unfit for the job for which he was hired" was so far beyond the understanding of ordinary jurors that a special definition was needed.
- AEG again states that jury affidavits that are about juror's mental processes are inadmissible. They say that after verdict during interviews it's not uncommon for jurors to express confusion, sympathy, even regret and jurors might say things in the interviews to please both sides.
- In order to give example of the above AEG mentions what the 4 jurors told them during their interviews which is conflicting to what is written in their affidavits submitted by Jacksons.
--- The first Jackson affidavit juror told AEG that the experience as a juror was positive and he/she believed AEG did not know anything about what Murray was doing to MJ.
--- The second Jackson affidavit juror told AEG that deliberation process was good, everyone had the opportunity to be heard before the verdict reached and the verdict form and instructions were clear and understandable.
--- The third Jackson affidavit juror told AEG that he/she wanted to ask about Q2 to the judge but then jurors talked about it and figured out what it meant and he/she was ultimately satisfied with the verdict.
--- The fourth Jackson affidavit juror told AEG that satisfaction with the verdict, made decisions based on facts and Jacksons did not prove their case.
- AEG states even there was an alleged confusion with Q2, Jacksons was unable to show that the verdict would have been different. AEG states 4 jurors claims that negligent supervision and retention wasn't considered is countered by the 7 juror affidavits that say such claims were discussed.
- AEG also points out that out of the 4 juror affidavits only 2 of them state they wanted to vote for Jacksons and the other 2 only mentions dissatisfaction with the deliberation process and want to deliberate more.
- AEG also rejects Jacksons claims that AEG was required to provide 9 juror affidavits to show the verdict wouldn't be different. AEG states the burden of proof is on Jacksons. AEG states Jackson lawyers had 3 months after the verdict and they were only able to get 4 affidavits which only 2 said they would vote for Jacksons and AEG was able to get 7 affidavits in 9 days right before Christmas. They state this indicates majority of the jurors would have voted in AEG's favor in both Q2 and Q3. They state that even the jury was hung on Q2 they could move on the next question and come to a verdict in AEG's favor based on that.
- AEG also filed a second document to oppose Jacksons and support their motion to strike jury affidavits. AEG again claims Jacksons are misrepresenting the law and the examples they given. AEG's main point is that jury affidavits can only be admissible if they are about a jury misconduct. AEG gives several examples of cases which rejected juror affidavits and they also state that the 4 case examples Jacksons gave (that showed Judge accepting the juror affidavits) all had jury misconduct element. Such as in one of examples Jacksons gave jurors actually considered attorney fees and income taxes while they were determining damages , Court and appeal court ruled to inflate the damages to offset lawyer fees and income tax was a jury misconduct. As I mentioned AEG gives several examples how subjective mental processes of the jurors and even confusion isn't admissible.
Summary of the judge's ruling
- All juror affidavits (4 by Jacksons and 7 by AEG) have been stricken as they are inadmissible as they are about juror's mental processes and reasoning. As they are stricken Judge also will not address the claims against lawyers.
- All juror affidavits filed are now under seal as Judge believes the identities of the jurors need to be protected due to 1)someone taking a picture through a window, 2) someone approaching to 2 jurors 3) William Wagener taking pictures of jurors, 4) a threat Paul Gongaware received during trial and 5) a concerning email sent to the court.
Now on to the Judge's denial of the request for a new trial
- There's a correction added that negligent hiring/supervision/retention aren't three separate causes of action but they are three separate causes of recovery.
- Judge states that Jacksons always maintained their opposition to Q1 but it was legally proper hence court overrules Jacksons objections.
- Judge states that the record does not show that Jacksons asked for BAJI modification or three separate definitions for negligent hiring/retention/supervision. The transcript portions the judge add include Panish saying "I know we don't want to copy BAJI" and "I'm not saying pick BAJI" and Chang saying "we'll work on it". Judge states she asked plaintiffs if they wanted BAJI or CACI, they declined BAJI (I'm not saying pick BAJI") and even though they said "we'll work on it" in regards to break out negligent hiring/retention and supervision they submitted CACI instructions. So the judge says given that Jacksons denied BAJI when asked and did not provide any break out instructions , they cannot argue that the court committed error by not giving them.
- As for adding "at any time", judge states that was a request done orally and the transcript is vague in regards to which question Boyle was referring. Court lists several examples that Jacksons wanted the exact language of CACI. The transcripts added by the judge includes Panish saying "we proposed the CACI one", Panish saying "what is wrong with CACI?" and Boyle saying "Your honor, I think if there's ever one that we should definitely stick with a CACI in this case, it should be the negligent hiring, supervision and retention that has been approved by the Judicial Council". So Judge finds that Jacksons wanted CACI and the exact language and they are stopped from arguing that the court made an error based on invited error doctrine.
- As for a general verdict form (were they negligent? what are the damages) court states this was mentioned orally and opposed by AEG and there's no ruling on it as it wasn't mentioned again or a written general negligence form was not submitted to the court. However judge states that a general verdict form would not change the verdict as the jury would still be required to consider all of the required elements of negligent hiring/retention/supervision and a "no" answer would still mean AEG would be found not negligent.
- As for Q1, Judge says employment relationship is needed for negligent hiring/supervision and retention and also as there's a dispute in regards to who hired Murray , AEG or Michael. Judge says Murray's hiring wasn't clear cut and if the Q1 was omitted and the verdict form started with Q2 it would create a confusion as it assumed Murray was hired. So the judge says jurors first had to determine if AEG hired Murray and then determine whether this was negligent.
- For Q2 the judge states that is asks if Murray was unfit or incompetent "work for which he was hired" and not "at the time he hired". Judge also states that adding "at any time" would create confusion as it could include time periods before AEG even had contact or hired Murray and the time period after MJ's death.
- As for the definition of "unfit and incompetent" judge states that there's no CA law that it includes "unethical". Judge says competence and fitness for a job depends on many factors. Judge states it was Jacksons experts duty to describe Murray unethical conducts and tie Murray's unethical conducts to unfitness or incompetence to practice medicine.
- Judge cites CACI 426 sourced and authority (Mendoza case example here: http://www.justia.com/trials-litigat...i/400/426.html) and then cites BAJI and says that negligent supervision is tied to initial negligent hiring and the qualities of the employee known to employer and in view of the work entrusted to him and her. In more simpler terms the judge cites a court of appeal ruling which states that supervision is required when employer knows that the employee is a person who could not be trusted to act properly without being supervised. With no such knowledge there's no liability for negligent supervision. Judge states that CA law provides liability for supervision and retention but it requires that to be in light of hiring based on the qualifications and character of the employee and the tasks to be performed.
(Ivy's note: It sounds like you can only be found negligent of supervision if you knew you had an employee that needed supervision and cannot be trusted to act on their own and yet you failed to provide supervision.)
- As the juror affidavits stricken judge is not considering them in regards to a possible confusion about Q1+ Q2. Judge again repeats Q2 did not ask "at the time he was hired", it asked "work for which he was hired". Judge also mentions (and adds transcripts) Panish saying in his closing " it's the entire time" twice and saying "at any time" during his rebuttal. Judge mentions in his closing Putnam did not say anything contrary and only mentioned "job for which he was hired".
- Judge mentions jurors sent her several notes over the 5 months of trial and therefore finds it unlikely that the jurors would hesitate to send questions to the court if they wanted.
- Judge states the answers to the verdict form - Q1 favorable for plaintiff and Q2 unfavorable for the plaintiff- demonstrates no jury confusion and jurors ability to answer questions separately and based on its merits.
- Judge explains Jacksons general negligence claim of 1)AEG interfering with MJ's healthcare and his doctor-patient relationship with Murray 2) negligent dissemination of knowingly false information about Murray to stop concerns expressed about MJ's health, 3)negligent infliction of pressure on MJ to continue tour and 4) failure to postpone or cancel shows after learning MJ's declining health. Judge says AEG's interference with MJ's health cannot be argued as general negligence as the interference is caused by the Murray hiring. Therefore that's a negligent hiring/retention and supervision claim.
- Judge states existence and scope of one's duty of care is determined according to circumstances. Judge mentions CA supreme court and duties about sports and how the court considered the nature of sports. Judge states MJ was a world class performer who did many live concerts and tours. AEG is a concert promoter. The entertainment industry is known to involve a lot of pressure to perform and a lot of capital investment. However the judge states a reasonable person can cannot foresee that wanting to maintain a concert tour even in spite of undefined health issues would lead to the artist's death. Judge states that it's unreasonable to think that AEG wanted to maintain the concert tour but also foresee that Michael would die due to their actions. Judge states AEG had the greatest incentive to avoid such outcome (MJ's death).
(Ivy's note: In other words the judge is trying to say that if the argument is that AEG wanted to make sure that the concerts happened, they would want Michael alive and well to perform. Michael dying means cancelling the shows - something AEG did not want.)
- Judge states 8.1 of MJ/ AEG contact was about production of the show and did not mention medical care or Murray. The MJ/AEG/Murray contract mentioned medical care and Murray. So Judge stated MJ/AEG concert contract had nothing to do with medical care where as MJ/AEG/Murray contract was specifically about medical care.
- Judge states by law a person cannot be subjected to two duties for the same conduct. Judge states AEG's actions was subject to negligence claim based on their contract with Murray hence the proper negligent hiring, supervision and retention claim.