Jacksons vs AEG - Day 42 – July 2 2013 – Summary

Katherine Jackson is in court. 

Testimony was delayed by a lengthy argument over an EEOC printout that was shown in court yesterday. Plaintiff’s attorney Brian Panish argued the document was a non-binding policy and shouldn’t be raised during trial. Judge Yvette Palazuelos said questions about the document could be asked, but it wouldn’t be allowed into evidence. Panish was also concerned because Palazuelos told the jury the guidance against employment-related credit checks was a law, which isn’t. She’s having the attorneys craft a statement to read to the jury when they come in and HR expert Jean Seawright resumes testifying. (AP)

Outside presence of the jury, attorneys/judge discussed the Equal Employment Opportunity Commission (EEOC) document shown to jurors yesterday. Panish: They don’t consider credit checks to be a prohibited practice at all. This is a lawyer making misleading statements, hearsay. Panish: She says “it is a law," it is an official policy. It is not an official policy. It is a guideline at the most. Panish said EEOC guidelines are not controlling law. "This is not a law. If the court is confused, the jury is going to be confused." It is a guideline that has been revoked in a court case, Panish told the judge. Bina said it was DMV photos that were assessed in that case, not EEOC policy that failed in that case. Panish raised his voice, said AEG never claimed this (credit check may be discrimination,) it has never been raised before. "You yourself were misled, your honor, over my objections," Panish said. Bina said she plans to say credit checks are controversial, must be job related. Companies might use care in using credit checks. Panish: Trell never mentioned an EEOC concern. This is not a law or regulation. The document wasn’t raised in deposition with Seawright. Judge told the attorneys to put their heads together and she will read an explanation to the jury. (ABC7)

Jean Seawright Testimony

AEG cross

Before Seawright resumed testifying, the judge read a statement telling jury that the EEO document wasn’t a law. Judge Palazuelos’ statement included language that she would instruct jurors’ on evidence once testimony concludes in the case. (AP) Judge told jurors that yesterday there were references made to an EEOC document. It was not a regulation, but rather a guide. Judge said the document had not been admitted into evidence. Jurors nodded, indicating they understood the explanation. (ABC7)

Bina asked if Seawright was familiar with that EEOC guideline. She said yes, it provides guidance. Seawright explained that Title 7 says that an employer cannot discriminate. Bina: Are there studies that show relationship between debt and manslaughter? Seawright: Not that I am aware of. Bina: Are there studies that show relationship between debt and malpractice? Seawright: Not that I am aware of. (ABC7)

Bina asked if Seawright knows Dr. Murray's history of treating patients, and he had no record of harming patients. Seawright explained she examined his financial history only, and once he failed that she didn't see need to go any further. Seawright said that, based on Dr. Murray's credit history, he was 180 days behind in his mortgage. (ABC7)

Bina asked why background checks are necessary. Seawright said it was because you are putting customers at risk. Dr. Murray wasn't being placed in charge of AEG business, Bina argued, saying he was in charge of the artist. Seawright explained his responsibility was Mr. Jackson's health during the tour. Bina: Does that fact that MJ had a long term relationship with Dr. Murray weigh in your analysis at all? Seawright: No, there's no bearing. Bina: If a contractor had been with hundreds of tours would that person have to be background checked? Seawright: It depends on the position. Seawright said you might have some historical knowledge of how the person performed but need to see if there were problems. If time has passed since you last hired someone, Seawright said you need to go back and check again, it's a rehiring; whole new period. (ABC7)

Bina: Lets say MJ had engaged Dr. Murray for 3 years and was going to continue. At that point, would MJ have to do background check?
Seawright: I can't give an answer without evaluating the circumstances (ABC7)

Bina asked if it's ever appropriate to have different processes for different positions. Seawright said it depends on different risk factors. Bina: Is it ever appropriate to have some policies for employees and others for independent contractors? Seawright: The label doesn't make a difference. (ABC7)

Most of AEG defense attorney Jessica Stebbins Bina's questioning centered on doing credit checks on employees. Stebbins Bina walked Seawright through a survey of 158 HR professionals who answered questions about performing credit checks. According to the 2010 survey, 30% of respondents did credit checks on employees in fiduciary duty roles. Much less in other categories. For employees' with "safety sensitive" roles (which Seawright believes Conrad Murray qualified as), credit screens were done in 5% of cases. For healthcare professionals, the figure was 3%, according to figures read into the record by Stebbins Bina. AEG Live defense attorney Jessica Stebbins Bina focused on statistics from a survey of HR professionals. (AP)

Bina inquired Seawright extensively about several surveys that she relied upon while writing opinions in other cases. Bina inquired Seawright about expert opinions she issued in other cases. "When hiring someone, we have to look at the potential harm to him/herself, to others, to customers," Seawright explained. "For every job, you have to evaluate all of the risks associated with it," Seawright said. There are risks in every employment. Seawright considered Dr. Murray's position to be high-risk and safety-sensitive. She explained Dr. Murray would be working at MJ's home, in and around his family, with access to confidential information. Seawright said the risk was elevated since Paul Gongaware was aware of MJ's past use of drugs and alcohol during tours. The expert said she read about Gongaware's knowledge of MJ's drug use in his deposition and Dr. Finkelstein also mentioned it. (ABC7)

Employers have the right to conduct background check, Seawright said. But she noted their practices cannot be discriminatory. Bina: Would the company be exposing itself to risk if you do background check? Seawright: Not necessarily (ABC7)

"Indemnification provision in a contract is not checking out a worker," Seawright testified. Bina argued that if the company is taking responsibility for Dr. Murray's conduct, with indemnification, it offers protection. Seawright said it protects the company, it protects AEG. (ABC7)

Bina: Do you see anything in the policy for hiring Independent contractors that AEG didn't follow with Dr. Murray? Seawright and Bina went through the check list for independent contractors hired by AEG. AEG's practice for Independent Contractors: *Known to the artist - Seawright said yes *Required licenses or permits - Seawright said yes. *Fully insured - Seawright said yes *Indemnification Provision- Seawright said yes *Obligation laid out in the contract - Seawright said yes. "It was called final," Seawright said about Dr. Murray's agreement. (ABC7)

Stebbins Bina also asked about reports Seawright prepared in other cases. There were objections, but some of the questions were allowed. Seawright stuck to her testimony that Murray should have been considered in a high-risk positive and dealing with safety-sensitive matters. One key factor in that was the fact Murray was working in Michael Jackson’s home, Seawright said. (AP)

Jackson redirect

Panish asked in re-direct about EEOC policy again. He said Bina brought it up improperly in front of the jury. Judge sustained objection. (ABC7) Panish asked a few questions before asking Seawright about the EEOC guidelines that have been argued over. AEG attorneys objected. Judge Palazuelos: “Why are we revisiting this.” Panish said he was trying to clarify issue for the jury, but judge sustained the objection. (AP)

Panish asked Seawright what her understanding is why employers check credit of potential employees. Seawright: They check the credit because they are very concerned that financial stress can compromise people's ethical judgment and behavior. Multiple branches of our government do credit checks on employees to make sure they are not at risk for unethical decisions, Seawright said. "The debt is not an issue at all, it's the delinquent debt they are concerned about," Seawright said. (ABC7) Seawright then said that many government agencies screen people’s credit because they see delinquent debts as a possible risk. She said the agencies view delinquent debts as one way people may compromise their ethical judgment. (AP)

Panish asked if Seawright saw anywhere in this case AEG saying they didn't conduct credit check on Murray because it could be discrimination. "I've never heard that at all in all the documents I read," Seawright responded. (ABC7)

Panish asked if Seawright could rely in a survey conducted with small percentage of businesses to determine if credit check should be done. Seawright responded she would not rely on that survey to determine the necessity of credit checks in the healthcare field. "I believe AEG Live hired Dr. Murray," Seawright said. Defendant's attorney objected to the response and judge sustained it. Judge: That's because it is your duty, your responsibility to say whether Dr Murray was hired. It's not up to the experts to determine that. (ABC7)

Seawright said that Dr. Murray asking for $5 million initially raised questions in her mind why he would be requesting that much. (ABC7) Before the break, Panish asked Seawright whether she reviewed testimony in the case about Conrad Murray’s pay. She said she knew he first asked for $5 million then dropped his rate down to $150,000 a month. She said that raised questions for her. Seawright: “It was a red flag for me at the beginning of the process,” she said of Murray’s expected $150,000 a month salary. (AP)

Panish then asked Seawright whether she believed AEG Live hired Murray, a question for the jury to decide. Panish said he asked the question because Stebbins Bina asked a similar question on cross-examination. At one point, Judge Palazuelos rubbed her hands over her face and stopped the proceedings. She turned and addressed the jury. She explained that one of her pretrial orders was that experts could assume Murray was either hired or not hired by AEG Live. She said the experts aren’t supposed to say whether they believe Murray was hired or not - that was for the jury to decide. (AP)

Panish asked whether if AEG Live was Seawright's client, would she have recommended hiring Conrad Murray. Seawright responded that she absolutely wouldn't have recommended that AEG hire Murray because of "risks associated with the position." If they insisted, Seawright said she would have recommended a "comprehensive vetting process" (AP) Panish asked if AEG Live were Seawright's client in 2009 and said they wanted to hire Dr. Murray what she would've said. Seawright: I would've said absolutely no, because of the risks associated with the position and the potential for conflict of interest. "If they insisted, I would've recommended a comprehensive vetting process, with credit and background check," Seawright said. (ABC7)

AEG recross

AEG Live attorney Jessica Stebbins Bina then took over, and made the point that Seawright hadn't done any research into med, concert fields (AP)

Bina in re-cross asked if Seawright was aware legislators expressed concern in 09 of unduly use of credit checks. She said she was not aware. (ABC7)

Jackson redirect

RE-RE-DIRECT Panish: Was EEOC checking credit of people? Seawright: My understanding they were. "Financial distress can impact their ability to make ethical decision, that's the reason that EEOC does it," Seawright said. Panish asked if Seawright would recommend background check for a high-risk, safety-sensitive job? Seawright: I do. Seawright said AEG did not do any check on Dr Murray. Panish: In your opinion, AEG acted inappropriately for not doing that? Seawright: Yes (ABC7)

Dr. Sidney Schnoll Testimony - Addiction expert for Jacksons 

Jackson direct

Michael Koskoff, attorney for Jackson's, doing direct examination.

Dr. Schnoll resides in Connecticut, born in New Jersey. He graduated in medical school on 1967. He described his extensive background. "Addiction Medicine is the study of the problems of addiction," Dr. Schnoll said. "It is a very broad area." (ABC7)

He testified about his experience, background today. He's an addiction medicine and pain management specialist. Been practicing since the early 1970s, but has been consulting since 2001 or so. Schnoll has helped develop risk management programs for pharmaceutical companies. It's a way to understand problems of abuse of a drug. Schnoll doesn't do trial consulting. He said this is the first case in about 15 years that he's testified in. Schnoll has consulted for the NFL Players Association, the Chicago Cubs and Bulls and written roughly 40 textbook chapters over his career. He's also provided medical care at concerts for acts such as the Rolling Stones and Fleetwood Mac. Apparently for concertgoers, not talent. Schnoll consulted for the Chicago Cubs starting in 1982. He recounted the first time he walked into the training room as immediately worried. Schnoll said on one of the counters in the Cubs' locker room was a bottle of amphetamines "which the players called greenies." The amphetamine pills were green, hence the players' nickname, Scholl said. He also noted there was a beer tap in the clubhouse. He said he told the Cubs both items were inappropriate, and they agreed. He instituted a drug monitoring and testing program. Schnoll said the Cubs' drug monitoring program he developed became a model of Major League Baseball at the time. (AP)

Dr. Schnoll reviewed medical records, depositions and transcripts in this case. He was also deposed. (ABC7)

Dr. Schnoll: Drug dependence is the pharmacological affect of the drug. "You take it continuously and suddenly stop it, you go into withdrawal" Dr. Schnoll said. "If you continue to take it you develop tolerance". Tolerance is when there's a need to take more of the drug for it to take effect, Dr. Schnoll explained.Dr. Schnoll: When you take certain drugs and suddenly stop you go into withdrawal syndrome, which is usually the opposite effect of the drug. Koskoff: Can people who are taking proper treatment become drug dependent? Dr. Schnoll: Yes. If the patient is properly prescribed and monitored, Dr. Schnoll said they can have normal life. Koskoff: Can withdrawal from drugs sometimes be difficult, even for non-drug dependents? Dr. Schnoll: Yes. Dr. Schnoll: Addiction is a chronic disease that's characterized by craving, compulsive use of a drug, continued despite evidence of harm. Primary factor is usually genetics, Dr. Schnoll said about addicts. Dr. Schnoll: One person exhibits addicted behavior in relation to the drug, the other is seeking the drug to treat underlying condition. Dr. Schnoll said there's a difference between being addicted and dependent on drugs. Dependents look for drugs, addicts want to get high. To determine if a patient is dependent or addicted, Dr. Schnoll said it is necessary to look at that person's behavior while using the drug. Usually doctor look at 0-10 pain scale, you then adjust the amount of the drug to give them what's enough to treat their pain. (ABC7)

The doctor explained the difference between addiction and dependence. Being dependent on a drug meant someone would experience withdrawal if they stopped taking it. He said dependence is common and can happen under the care of a physician.(AP)

Schnoll: "Addiction is a chronic disease that’s characterized by craving, compulsive use of a drug, continued use despite evidence of harm." He said the primary factor in whether someone becomes a drug addict is usually genetics. Schnoll then related the need to evaluate a person's drug use to determine appropriate treatment. He offered an anecdote of a patient. Schnoll said he treated a woman who had severe headaches and kept asking her doctors for more and more pain medications. He told the woman to keep a pain diary of her daily routines, when she got headaches and what she was doing. The problem became apparent, Schnoll said, when he reviewed the woman’s pain diary. The woman “always had her headaches at about 4 o’clock every day, except weekends,” Schnoll said. She wasn’t eating lunch at work. She didn’t believe him at first when he said she needed to eat lunch. He gave her some glucose tests, which bore out his theory. “Her solution to her headaches was to eat 3 meals a day,” Schnoll said. “She needed no more narcotics after that.” (AP)