April 29, 2013 Opening Statements
Plaintiffs (Jackson) Opening statements
Jackson attorney Panish starts the opening statements by introducing Katherine Jackson and her kids Randy and Rebbie.
A video from “This is it” rehearsal is played and Panish says “This is it” would be Michael’s biggest and most successful tour. Panish states however the promise turned to tragedy and on June 25th Michael died from Propofol overdose.
Panish: “His stirring voice, his musical genius, his creativity and his generosity, and his huge heart was extinguished forever.”
Panish continues to mention Michael not only was a singer but he was a songwriter, worked on composition and music, was a dancer, music producer, actor, choreographer and how he changed music videos. Panish also mentions Michael’s humanitarian side and how much he gave to charities. Panish says beside that and most importantly Michael was a devoted son and a great father.
Panish: “and why we're here is to assess the loss that his mother and these children suffered. And his mother, you will hear, was financially dependent on Michael, as were his children”
Panis states that in this trial the jury will hear the whole story of what happened in the death of Michael Jackson. Panish mentions AEG and Murray are a part of this and the evidence will show that AEG had a legal responsibility to use reasonable care when hiring, retaining or supervising anyone that worked for them or any independent contractor such as Murray.
Panish says this is like a puzzle where pieces – the evidence- will come in bits and pieces from the witnesses and will fit together to show the finished product. Panish points out there are really 3 parts and each played a role in Michael Jackson’s death: Michael Jackson, Conrad Murray and AEG. Panish says he wants to examine each one.
Panish: “Michael had a problem. Michael became dependent at times on prescription medication and Demerol, pain medication for pain, suffering, anxiety, and things that he had.”
Panish: “It became more -- more prevalent when he was going through a rigorous schedule, such as concerts, preparing for concerts”
Panish states an addiction expert will talk about how Demerol and prescription medicine could become addictive and dependency is a disease.
Panish: “What you're going to hear is that Michael led his life, whether he was taking these prescription medications or not, and he functioned, and he was a good father and a good son, and he was able to carry out his daily activities, but he had an issue. And you're not going to ever hear us say that he didn't.”
Panish tells the jury that they will see that AEG will try to put the whole blame on Michael but without the involvement of AEG none of this would have ever occurred.
Panish starts explaining Michael’s dependency issues. He mentions Michael suffered burns, he went through surgeries and he suffered migraines / headaches due to the burn injury. Panish mentions Michael received money for this accident and he gave the money to a burn center. Panish mentions Michael’s injuries throughout his career (sore back, aches, pains, anxiety) also contributed to his dependency on pain medications. Panish states Michael’s pain threshold was low. Panish says that Michael had Vitiligo and he had to go through a lot of procedures for that and he was given Demerol. Panish shows a video of Michael dancing and say over time Michael suffered some wear and tear. Panish shows the video of 1999 bridge collapse in Munich.
Panish states Michael received Demerol – a pain medication- over the years from many doctors. Panish says AEG will demonstrate Michael going to many doctors and using prescription medicine. Panish says this is what happens when a person has dependency , they want to get the medication for their dependency and they won’t be disputing that.
Panish: “the evidence is going to show, though, as a result of the pain, the stress, and the Demerol, Michael had insomnia, inability to sleep”
Panish talks about how it is to be not able to sleep. He says Dr. Metzger will testify that perfectionism caused stress and Michael had a profound sleep disorder but he never got a complete treatment for the sleep disorder and he relied on other things and eventually Propofol.
Panish talks about Propofol, how it is used for sedation in a medical setting, given by an anesthesiologist and how it’s not real sleep. Panish says Michael received Propofol during surgeries and oral surgeries and Michael believed that it was the same as sleep.
Panish: “Michael over the years when he had procedures, felt good with this Propofol; and he had asked several physicians to give him Propofol at home. But nobody would give it to him until Dr. Murray came on the scene.”
Panish says Michael had a cycle: had pain, taken Demerol, gets insomnia, he takes Propofol.
Panish says Michael’s family and people that knew him believed Michael had a problem with prescription medication. Panish says AEG is the only one that is going to say they heard nothing about it. Panish says Michael’s family would approach him but he would deny his issues. Panish says Michael did not want to admit to his problem. He says Michael tried rehab several times and he tried it again after Blanket was born but it didn’t work as it was a strong addiction.
Panish says the one had the chance to prevent it was AEG but they enabled it. Panish says Michael paid the ultimate price, he died.
Conrad Murray is the next piece of puzzle. Murray had a problem too, he was in great financial straits; his house was being foreclosed, he had debt, he owed back child support.
In January 2006 when Michael’s children got sick, a security guard recommended Murray. Murray came to the house, treated them for colds. Panish says Murray treated Michael a total of 7 times between 2006 and 2008. Panish says AEG will say that Murray was Michael’s long time personal physician but Panish says that Murray only treated Michael for minor stuff and a total of 7 times – the last 2 times were about insomnia. The last visit was in November 2008.
Panish says Michael had many other physicians and AEG will argue that Michael was shopping around for doctors. Panish says Michael’s 3 long time physicians were Dr. Metzger, Dr. Klein and Dr. Van Valin. Panish says these were the long time physicians of Michael and not Murray.
Panish says Murray was a big fan of Michael’s, he was enamored with Michael and this is not a good thing if you have someone with a dependency problem.
Panish says they won’t be disputing that Michael suggested Murray to AEG and asked them to hire him. He mentions how Murray initially asked for $5 Million, how AEG thought it was too much and eventually agreed to $150,000 a month. Panish says that there’s evidence that shows Murray was hired by AEG and there was an oral contract. Panish mentions there are many types of contracts and AEG will maintain the position that they never hired Murray. He says Murray started to stockpile Propofol in April, continued to buy it in May and Murray eventually started Propofol regime at home. Panish shows the jury a picture of Propofol and says that Michael was given Propofol for 6 weeks. Panish states it is undisputed that it’s not proper to do what Murray did and mentions Murray was found guilty and sentenced to 4 years in prison.
Panish talks about the police investigation after Michael’s death, how the police came to Carolwood and how they impounded Murray’s car. Panish says police has found three things: a business card of Randy Phillips, an envelope and a contract between Murray and AEG.
Panish states AEG also had a problem, they weren’t number 1 in the concert business but they wanted to be. Panish says Live Nation was number 1 and AEG was competitive in the ruthless business of concert promotion. Panish says AEG had a plan to overtake Live Nation and that’s according to Phillips was “We're going to get the biggest artist in the world in the biggest Arena in the best city”.
Panish says this was according to AEG was London, O2 Arena and Michael Jackson. Panish says they aren’t complaining about trying to get the best artist (MJ) to help their company. Panish says the problem with this plan was there were no rules, it didn’t matter to AEG what it took, they didn’t care who got lost in the wash, and they were going to get it done.
Panish states they were able to get a lot of internal emails of AEG. One of the emails says “2009 is the year to make money”. Panish talks about the contract between Michael and AEG.
Panish: “part of the terms of the contract were that AEG was going to pay off debts that Michael had. And they were going to pay this business lawsuit; they were going to give him a $2 million advance, $200,000 in cash; they were going to pay the production costs; they were going to pay a payroll; they were going to help him get a home in Las Vegas; they were going to put a million into movie deals, because they have a movie company they're affiliated with; and they were going to get 10 percent of the profits, Michael was going to get 90 percent”
Panish says AEG advanced the money and if there’s money at the end they would get 10% but there was no risk for AEG as all the advances were secured by Michael’s assets. Panish says if for some reason Michael doesn’t perform AEG gets their money back but they can’t make the profit hundreds of millions they wanted to make.
Panish says AEG will say Michael was in serious debt of around $300 - $400 Million. Panish says Michael had debts and he had assets excess of his debts and Michael was in the process of getting everything worked out. Panish says Tom Barrack of Colony Capital was helping Michael and Michael was following his advice. Panish says Barrack called Anschutz and Anschutz and Leiweke came to meet with Michael in Vegas.
Panish reads several statements from Phillips that says Michael would dance his ass off and how he’ll throw him over his shoulder and carry to stage. Panish says this is the mindset of these concert promoters. Panish talks about Randy Phillips and Paul Gongaware, who they are and what they do at AEG. He also lists several people who were involved with AEG or “This is it” concerts.
Panish talks about the contract of AEG as the producer of the “This is it”. Panish says the contract said AEG’s duties included “engaging services of third- party vendors” and they got 5% fee for all the producer services they provided. Panish says Michael’s obligations were to go to rehearsals and perform.
Panish says AEG had to do the hiring, supervising personnel & independent contractors from the people that did the lights to the tour doctor and ensure that they did their jobs. The reason for this is they want the artist to be able to focus to perform and not have to deal with the lights and so on. In exchange for doing this they got a percentage from the profit. Panish says AEG has an obligation for reasonable care when hiring, supervising and retaining.
Panish talks about what AEG knows. He says they knew Michael relied on doctors in the past tours for opiates to get him through pain to perform. He says Gongaware was in the Dangerous tour. Ortega was the director. Panish says Gongaware learned Michael was Demerol- dependent at that time from Dr. Finkelstein. Finkelstein said Michael needed intervention and detox in November 1993. Panish says Gongaware tried to deny this knowledge during his deposition.
Panish says in 1995 Michael was preparing a special for HBO and he collapsed. He says Ortega was there and knew all about it. Panish says Dr. Neil Ratner was providing Michael prescription medications throughout the tour. He says Ratner was helping Michael to get through aches and pain so that he can do the next show and the next show.
Panish says there’s an email by Phillips in which he says “this reporter did a lot of research. MJ. has a problem with his lower back and he's had problems with alcohol and painkillers for years” but they would say they they didn’t know it. Panish says Michael’s dependency to painkillers was widely publicized and AEG knew about it before they entered into a contract with Michael. Panish says there were also problems from the beginning. He reads email from Phillips before the press conference about Michael not speaking to Tohme for a week and might not get on the plane for announcement and how concerned he is that Michael could breach their agreement. He reads Gongaware’s reply that calls Michael “Mikey” and lazy. He says "Mikey" was a derogatory word. Gongaware writes “to back of now would be a disaster for us”. Panish says AEG was worried about AEG and not Michael. Panish also mentions the press conference event and the emails between AEG people about Michael being drunk. Panish also mentions public statement and emails about ticket sales. He says that AEG cared about money and not Michael.
Panish says there’s no question that Michael requested a doctor for the tour but he says when somebody requesting a doctor has a known dependency to Opiates that should raise a red flag. He says also Murray asking for $5 Million should have been a red flag. Panish says even AEG’s expert agrees that $5 Million is outrageous. He says AEG contacted Dr. Finkelstein and says he’s the right doctor as they need an addiction specialist or a pain management person – not a cardiologist. Finkelstein asks for $40,000 a month and says he will only take the position if Michael was clean. Panish says AEG did not hire Finkelstein. Panish also says AEG will argue that Michael wanted Murray but there were other people that Michael wanted and AEG did not hire. Panish says AEG knew Michael needed someone to help him and they ignored the obvious red flags and hired Murray.
Panish talks about what needs to be done to investigate these red flags. He says they can do background checks but AEG will say they never do background checks on independent contractors. Panish says they had an obligation to do background checks. Talks about release and authorization forms and checking licensing, disciplinary actions and so on.
Panish talks about what AEG would have found out if they got Murray sign the release and authorization forms. He says they would find out that Murray is an internist and cardiologist and he wasn’t specialized in addiction or pain management. They would find out that Murray’s privileges were suspended in 2008 and they would find out that Murray was financially desperate.
Panish: “his financial condition made him susceptible to pressure and a conflict of interest between the patient's needs and AEG's needs.”
Panish says Murray was placed in a severe conflict by AEG, if Murray said Michael can’t go or if he said “I can’t give you these drugs”, his contract is over and he doesn’t get paid. Panish says this was the conflict. He says AEG falsely vouched for Murray when Phillips said “we've checked him out. He’s the best doctor”. He says Phillips lied and AEG shut the people down who were trying to help Michael.
Panish reads an email by Ortega sent 11 days before Michael’s death. Ortega writes about Michael’s doctor not allowing him to attend rehearsals and asks AEG to stay on top of MJ’s health situation. Gongaware replies saying they discussed this with Frank and asked for a face to face meeting with the doctor. This is the email in which Gongaware says “we want to remind him, the doctor, that it's AEG, not MJ., who is paying his salary”
Panish asks the jurors if “we want him, the doctor, to understand what's expected of him.” Sound like a company that wants to make sure everything is done for the artist, does it sound like if they didn’t hire the doctor and if they got nothing to do with the doctor.
Ortega sends another email to Gongaware on June 15.
Ortega email “MJ did not have a good Friday, and he didn't show on Saturday. He requires more attention and management. As I mentioned, I truly believe he needs nourishment, guidance and physical therapy and massage for his fatigued muscles and Injuries. He's not in great physical shape. I believe he's hurting. We need a healthy, rested and ready MJ at staples and the forum."
Panish says Alif Sankey will testify on June 19th, she saw deterioration in Michael and expressed her concerns to Ortega. She didn’t understand why no one helped Michael. On June 19 Houghdahl sends an email to Phillips
Houghdahl: “I'm not being a drama queen here...Kenny, Mr. Ortega asked me to notify you both. MJ was sent home without stepping foot on stage. He was a basket case, and Kenny was concerned he would embarrass himself on stage, or, worse yet, get hurt. The doubt is persuasive."
Panish says Phillips immediately goes to his boss Leiweke and says “we have a real problem here”.
Houghdahl: “but Kenny said he was shaking and couldn't hold his knife and fork. Kenny had to cut his food for him before he could eat, and then he had to use his fingers.”
Phillips reply email: “Tim, Mr. Leiweke, the CEO and I are going to see him tomorrow; however, I'm not sure what the problem is. Chemical or Psychological?”"
Gongaware: “take the doctor with you. Why wasn't he there last night?" Why wasn't his doctor there like he's supposed to be? "What's going on?"”
Gongaware: “he is not a psychiatrist. I'm not sure how effective he can be at this point. Obviously getting him there is not the issue. It's much deeper."”
Ortega: “my concern now is that we've brought the doctor into the fold and have played the tough love now or never card; that the artist may be unable to rise to the occasion due to emotional stuff. He appeared quite weak and fatigued this evening. He had a terrible case of chills, trembling, rambling, obsessing. Everything he says, he should be psychologically evaluated. I was told by the choreographer that during the custom fitting with the designer tonight, they noticed he lost more weight. As far as I can tell, there is no one taking responsibility for caring for him on a daily basis. Where was his assistant last night? Tonight I was feeding him, wrapping him in blankets, massaging his feet to calm him, and calling the doctor. He's frightened it's all going to go away. "”
Ortega: “I honestly don't think he's ready for this based on his continual physical weakening and deepening emotional distress -- or state. It's reminiscent of what Karen Bush Travis and I remembered just before he fainted, causing the HBO concert to cancel. I think the very best thing that we can do is to get a top psychiatrist to evaluate him ASAP. I believe we need professional guidance in this matter.”
Phillips: “it's critical that neither you, me or anyone around the show become amateur psychiatrists or physicians. I had a lengthy conversation with Dr. Murray, and I'm gaining immense respect for (sic) as I get to deal with him more. This doctor is extremely successful. We check everyone out, and he does not need this gig, so he's totally unbiased and ethical.”
Panish says Gongaware said in his deposition that they did not check anyone out. Panish says Phillips lied to Ortega about Murray to keep the show to go on. Panish says AEG in their emails start to write that Ortega is starting to concern them, Panish says this is because Ortega is raising concerns about Michael’s health. Panish criticizes that AEG executives in their emails about Michael also talk about their plans for that night. Panish says they aren’t thinking about what to do about Michael , they are thinking about their social calendar.
Panish says Ortega will say that he had concerns about Murray and couldn’t understand why Michael would not show up to rehearsals when he had a doctor living with him. Ortega relied his concerns to Phillips but Phillips lied to him.
Panish says the evidence will show that AEG created a conflict between Murray and Michael. They talked directly with Murray, insisted on his performance regardless of the risk and they forced Murray do things which he might not otherwise do due to his severe financial pressure. Panish says AEG created this 3 part conflict. Murray is the doctor and supposed to take care of Michael, but if Michael doesn’t come to rehearsal and there’s no concert Murray does not get the $150,000. He gets foreclosed, all the debts. Panish says Murray made the wrong decision but AEG was the one that put him in that position.
Panish reads 2 emails from Gongaware and Phillips about talking to Michael’s doctor and asks if this is Michael’s personal doctor why are they meeting with him, why are they getting involved in Michael’s health care.
Phillips: “guys, we had a very productive, solid meeting with Kenny, Dr. Murray, MJ and myself. The doctor was fantastic. I think Kenny's hysteria will be in check while MJ is alert and attentive. We've all agreed on a schedule that works with Kenny and MJ. I promised Kenny I would office out staples next week during rehearsal. Let's pray MJ engages and also starts to work out and eat. Anyway, things aren't as bleak as Kenny says. "
Panish says Kai Chase will testify that the meeting was hostile, a vase got broken and Michael ended up leaving. Meeting continued for hours, Murray came to the kitchen and said “I can’t handle this” and Murray was very upset.
Panish mentions an email sent to insurance broker that says Randy Phillips and Murray is responsible for Michael’s rehearsal and attendance schedule. He says AEG has $17.5 Million cancellation insurance and is trying to get more at that time.
Panish reads an email of Phillips dated two months after Michael’s death and while they are editing the “This is it” movie. Phillips says “make sure we take out the shots of MJ in that red leather jacket at the sound stage where the mini movies were being filmed. He looks way too thin,"
Panish says what AEG should have done is to refuse to engage and hire a doctor for Michael and have Michael get his own physician to avoid conflict. Panish says they should have gotten someone that is addiction or pain management specialist and susceptible to financial pressure. Panish says although there were red flags AEG kept putting pressure on both Michael and Murray. Panish says they never removed Murray.
Panish says Michael could have been easily treated with Suboxone which gets people off opiates / Demerol. Panish says there’s also treatment for insomnia. Panish says they could have done what is done in Dangerous tour, put Michael in rehab and detox and postpone the tour. (AEG objects to the cancellation mention court sustains)
Panish starts talking about damages. Panish says AEG will argue that Michael would not make any more money and everything Jacksons side say is speculative despite that they invested in Michael. Panish says Michael would do these shows, do a world tour and go to Vegas, live there and do a show.
Panish mentions there are economic and non economic damages. He talks about Katherine, Michael’s siblings, living at Gary, performing and so on. He reads a letter Michael wrote to Katherine. Talks about Michael’s children, shows pictures and plays “You are my life”, plays a video of Michael giving his kids a dog at Christmas.
Panish says they are showing this evidence because they need to prove their loss. He says they aren’t looking for sympathy, they are looking for truth and justice, they want AEG to be held responsible and jury to determine what is fair and just.
Panish talks about economic damages. Panish says AEG’s claim that they want $40 billion is not true. He says they made an estimate earlier in the case and it was $10 Billion for special damages. Panish says they have experts that calculated Michael’s loss of income to be $1.5 Billion and the jury will decide what the non-economic damages are. Panish says AEG will say the damages are zero.
Panish says AEG will say they never hired Murray and there was no signed contract. He says that Murray entered into oral contract with AEG. He says AEG stiffed Murray and never paid him. Panish says Prince saw that Michael gave Murray $100 bills because he was there working and AEG did not pay him. Panish says AEG will say they don’t pay anyone without a signed contract but that’s not true. He says they paid Ortega and Payne and they didn’t have written contracts.
Panish goes over Murray’s emails to AEG executives talking about the terms of the contract. He says the CPR machine should have been a red flag. Panish plays an interview of Phillips saying they hired Murray and say now AEG will say that doesn’t really mean what he said. He says AEG created a technical legal defense. Panish mentions Murray’s police interview talking about his employment. Panish says AEG had Murray’s payment put in the tour budget but now they say they never hired him. He goes over the draft of contract, starts at May 1st, the equipment requested, provide services the producer wants, can be fired for failure to provide services or immediately if the concerts cancelled or postponed. Panish calls this the conflict of interest. Panish says Murray signed and sent the contract one day before Michael died.
Panish says after Michael died on July 17, AEG tried to get the $300,000 they owe to Murray from MJ Estate. Panish says they are trying to get the money for someone they say never hired.
Panish states AEG will say Michael knew all the risks of Propofol and it’s his fault that he died. Panish says Michael was told it was okay if a doctor gave it to him and he thought it was safe. Panish says there are 3 parts to this story and all of them are involved and AEG had the power to prevent this from happening.
Panish talks about it’s unethical to blame Michael and Michael never used any drugs that weren’t prescribed by a physician. Panish says the issue is what AEG did and what they could have done to prevent it. Panish says under the law AEG is the ones to act reasonably in hiring, supervising and retaining.
Panish: “what did AEG do, and what could they have done to prevent this? We all know Dr. Murray paid his price, Michael paid the ultimate price in losing his life, but AEG is the one that has not accepted any responsibility.”
Panish says they are looking for two things in this case. One is truth, they want the truth come out, what really happened, what is AEG’s involvement in that. Two is justice which is what has been lost by Michael’s mother and children financially and what they lost emotionally.