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Alan Duke CNN
Published: 02 April 2013

LOS ANGELES (CNN) -- Michael Jackson's last concert promoter will defend itself in a wrongful death lawsuit filed by the pop icon's family by arguing that Jackson was responsible for his own demise.

Child molestation accusations against Jackson, for which he was acquitted after a trial, and evidence of his drug addiction will likely be presented by AEG Live's lawyers as they argue that the company had no liability in his death.

The Jackson v. AEG Live trial, which could last two or three months, began with jury selection in a Los Angeles courtroom Tuesday.

The judge also heard arguments for and against allowing cameras in the courtroom, a request made by CNN. She did not make an immediate ruling.

Jackson died two weeks before his "This Is It" comeback concerts, organized by AEG Live, were to have debuted in London in the summer of 2009.

"I don't know how you can't look to Mr. Jackson's responsibility there," AEG lawyer Marvin Putnam said. "He was a grown man." Putnam was interviewed for "Michael Jackson: The Final Days," a CNN documentary that will premiere at 10 p.m. Friday.

"Mr. Jackson is a person who was known to doctor shop," Putnam said. "He was known to be someone who would tell one doctor one thing and another doctor something else."

The child molestation trial is relevant because it "resulted in an incredible increase in his drug intake," Putnam said.

Jackson's eccentricities are fair game, AEG Live says

"We're talking about Michael Jackson," Putnam said. "This is a man who would show up in pajamas. This is a man who would stop traffic and get out and dance on top of his car. This is a man who would go to public events with a monkey named Bubbles. This is a man who said he slept in an oxygen chamber."

Lawyers for Jackson's mother, Katherine, and children, Prince, Paris and Blanket, argue that AEG Live is liable because the company hired and supervised Dr. Conrad Murray, who used a surgical anesthetic in a fatal effort to treat the singer's insomnia as he prepared for the comeback concerts. Murray was convicted of involuntary manslaughter and is serving a prison sentence.

Los Angeles County Superior Court Judge Yvette Palazuelos ruled in February that Jackson lawyers have shown enough evidence to warrant a jury trial on the negligent hiring case. She also ruled there was evidence to support the Jacksons' claim that AEG Live executives could have foreseen that Murray would use dangerous drugs in treating the singer.

The lawsuit seeks a judgment against AEG Live equal to the money Jackson would have earned over the course of his remaining lifetime if he had not died in 2009. If AEG Live is found liable, it could cost the company several billion dollars, according to estimates of Jackson's income potential. AEG Live is a subsidiary of AEG, a global entertainment company that was up for sale recently with an $8 billion asking price.

Prince and Paris Jackson to testify about dad's last days

The wrongful death trial, which could last several months, is expected to include testimony from Jackson's mother and his two oldest children, Prince and Paris.

Putnam questioned why their lawyers would call them to testify, suggesting it was "for the emotional response."

"I can't understand why bringing them to the stand has anything to do with whether or not Dr. Conrad Murray was hired by AEG or hired negligently. But perhaps they're bringing them to the stand for different reasons."

He bristled at the allegation, made by the Jackson lawyers in a court filing last month, that he was "behaving aggressively and erratically" in his questioning of Prince Jackson during pretrial depositions.

"We went out of our way to ensure we did precisely not that," Putnam said. "They may want to try to make the world believe that AEG Live is doing something inappropriate as to these children, but I'd ask the world to pause for a moment and look at what's actually happening here. They're the ones who are bringing this lawsuit and they're the ones who are saying they're going to put these children on the stand, something that I'm relatively certain their father would never, ever want to occur."

Jackson lawyers, he said, "are trying to sensationalize things that never happened" with their allegations about the way Prince was treated, he said. "I think in that scenario they're going to try to whip things up into a frenzy in the hopes that justice will not be served."

The only way AEG Live can lose the case, he said, "would be on an emotional basis outside of the facts."

Murray worked for Michael Jackson, not AEG, lawyer says

The key to AEG Live's defense is its contention that Murray was never an AEG employee but rather was chosen and paid by Michael Jackson for nearly four years until Jackson died.

While Murray has indicated he would invoke his Fifth Amendment right to avoid answering questions, Putnam pointed to the interview the doctor gave to police two days after Jackson's June 25, 2009, death. Murray told detectives it was his understanding that he was Jackson's employee, not AEG Live's, even though the concert promoter would be the party cutting his paychecks.

"He was chosen by Michael Jackson," Putnam said. "He was brought to Los Angeles by Michael Jackson. He had been Michael Jackson's longtime physician and continued in that capacity and was directed by him and could only be fired at will by him."

AEG Live became involved with Murray only after Jackson had persuaded him to join his "tour party" for the "This Is It" concerts, Putnam said. "Then what happens is AEG starts to go back and forth with him and his attorney [and] Dr. Conrad Murray, with drafts of contracts."

Although Murray began treating Jackson six days a week in May 2009, it was only the night before Jackson's death that Murray signed a contract. AEG executives and Jackson never signed it, Putnam said. The Jackson lawyers will argue the signed contract was not necessary to establish employment.

The unsigned contract and the oral understanding with Murray called for the doctor to be paid $150,000 a month while he served as Jackson's personal physician as the pop star performed 50 shows at London's O2 Arena in the second half of 2009 and into 2010.

AEG's role was like MasterCard, lawyer says

AEG Live's role with Murray was only to "forward" money owed to him by Jackson, just as a patient would use their "MasterCard," Putnam said. "If you go to your doctor and you pay with a credit card, obviously MasterCard in that instance, depending on your credit card, is providing the money to that doctor for services until you pay it back. Now, are you telling them MasterCard in some measure in that instance, did MasterCard hire the doctor or did you? Well, clearly you did. I think the analogy works in this instance."

In fact, Putnam said, he learned during the discovery process that Michael Jackson was paying Murray during the last two months of his life.

"He was paying for him during his entire time in Los Angeles and during the time we're talking about, Dr. Conrad Murray was being paid by Michael Jackson," he said. "We know this. We know this because the plaintiffs have said so."

The revelation that Jackson paid Murray during that period has not been reported. Jackson lawyers declined to comment, citing ethical limitations to their ability to talk to the media about the case.

E-mails reveal AEG's involvement, Jacksons say

A cornerstone of the Jacksons' case is an e-mail AEG Live Co-CEO Paul Gongaware wrote 11 days before Jackson's death. The e-mail to show director Kenny Ortega addressed concerns that Murray had kept Jackson from a rehearsal the day before: "We want to remind (Murray) that it is AEG, not MJ, who is paying his salary. We want to remind him what is expected of him."

Jackson lawyers argue the e-mail is evidence that AEG Live used Murray's fear of losing his lucrative job as Jackson's personal physician to pressure him to have Jackson ready for rehearsals despite his fragile health.

The AEG Live lawyers say the Jackson lawyers have "taken it completely out of context." Gongaware and the others were only concerned with making sure Murray had all the help he needed, such as perhaps a physical therapist or a nutritionist for his patient, Putnam said.

"Not only was there no such pressure, there couldn't be in a professional relationship," Putnam said in his CNN interview. "To say that that was the case would say that a doctor in some measure was not abiding by his Hippocratic Oath. If there's a professional who's providing a service for you, others outside of that professional relationship may go to that person, as you might any doctor and say, 'Are you doing all the things necessary for Mr. Jackson?' That doesn't apply pressure or control."

Ortega, who had worked closely with Jackson on previous tours, sounded a loud warning about his health after Jackson showed up shivering at a rehearsal a little more than a week before his death. He wrote in an e-mail to AEG Live President Randy Phillips: "It is like there are two people there. One (deep inside) trying to hold on to what he was and still can be and not wanting us to quit him, the other in this weakened and troubled state. I believe we need professional guidance in this matter."

In the e-mail, which was disclosed during Ortega's testimony at Murray's criminal trial, the show director also said he was worried about "real emotional stuff" Jackson appeared to be dealing with. "Everything in me says he should be psychologically evaluated," he wrote. Ortega said Jackson had "strong signs of paranoia, anxiety and obsessive-like behavior" and suggested they hire a "top psychiatrist in to evaluate him ASAP."

AEG Live worried about the flu, not drugs, lawyer says

The Ortega e-mail was not sounding an alarm about Jackson's health but just telling Phillips that Jackson was suffering "flulike symptoms," Putnam said.

"Mr. Jackson was not in a position to get up on the stage and do the rehearsal because he had flulike symptoms," Putnam said. "He was cold, he was shaky and as a result he didn't perform that evening."

"People were worried about that flu," so AEG Live executives called a meeting with Jackson and Murray the next day at Jackson's home to discuss it, he said.

"So Mr. Phillips went to that meeting at Mr. Jackson's home, that would be on the 20th of June, that's five days before Mr. Jackson passed," Putnam said. "And they got there, and Mr. Jackson was emphatic about the idea that he was great. 'You guys are all worrying about nothing. Look at me. I am fine.'"

Phillips sent Ortega a glowing endorsement of Murray: "This doctor is extremely successful (we check everyone out) and does not need this gig so he is totally unbiased and ethical."

The flu scare was one of only "a couple of occasions" that AEG Live's president had to be concerned about Jackson's health, Putnam said.

Other than "little instances like that," there "was nothing that ultimately gave rise any time before Mr. Jackson's death that there was any problem with Mr. Jackson," he said.

AEG Live would not have rushed Jackson, lawyer says

If there had been a health problem with Jackson, AEG Live would have had no problem postponing the start of the tour, Putnam said.

"AEG Live had already moved the concerts because they weren't going to be ready in time for early July because of the number of set pieces Mr. Jackson wanted," he said. "There would be no rush for AEG Live to have to get to the stage by, I think at that point, by July 13. If there was a problem here AEG wanted to know there was a problem because they could simply move the concerts."

The 50 shows were to be spread out over a year in the O2 Arena, which AEG owned and controlled, he said. "AEG had no interest in rushing to get to July 13. On the contrary, if there was an issue they would have wanted to know."

What did Randy Phillips know?

An earlier e-mail leaked to the Los Angeles Times last year suggests that AEG Live's president saw Jackson's problems firsthand the day the pop star was to appear at the O2 Arena to publicly announce the shows.

"MJ is locked in his room drunk and despondent," Phillips wrote in a March 5, 2009, e-mail to AEG Live's parent company, the paper reported. "I (am) trying to sober him up."

"I screamed at him so loud the walls are shaking," Phillips wrote. "He is an emotionally paralyzed mess riddled with self-loathing and doubt now that it is show time."

Despite this, Putnam insisted that Phillips was "incredibly impressed" and "saw a really engaged, interested, very smart, and savvy Michael Jackson."

The AEG Live chief had only "certain limited encounters" with Jackson in the months leading up to the scheduled shows, but he did get glowing reports, Putnam said. "Mr. Phillips kept hearing from various people in the tour party from rehearsals, and practices and meetings with various promoters, meetings with people who were going to do clothes, makeup, things of that nature," he said. "It was the same, that Mr. Jackson was incredibly engaged, was incredibly interested and seemed great."

AEG Live executives also had "no indication at any point that there was a problem with Conrad Murray," Putnam said. "He was licensed in four states. He had never been reprimanded. There were no indicators or warning signs of a problem. "

"Mr. Phillips had met him once, and he seemed quite happy that this was a fine, outstanding doctor in all appearances and he liked that fact," Putnam said. "And he liked that fact that he didn't appear to be a sycophant."

Trial judge thinks Jackson may have a case

Judge Palazuelos, in her ruling rejecting an AEG Live's request to have the case thrown out, said she agreed that the Jackson lawyers had provided evidence that AEG Live didn't do "a sufficient background check of Dr. Murray, which would have established that Murray was deeply in debt."

Jackson's previous relationship with Murray, who treated him and his children for minor illnesses in Las Vegas, did not relieve AEG Live of liability, "although the fact may be relevant in determining proportional liability and damages," she said.

While the AEG Live lawyers argued the company could not have foreseen that Murray might use dangerous drugs on Jackson in preparation for the tour, Palazuelos said there was evidence that Gongaware had "previous tour experiences" with Jackson in which "tour doctors" gave "large amounts of drugs/controlled substances to him."

Gongaware testified in Murray's trial that he worked as tour manager for Jackson's "Dangerous" and "History" tours before joining AEG Live. The judge cited "Gongaware's general knowledge of the ethical issues surrounding 'tour doctors' and the practice of administering drugs to performing artists."

"There is a triable issue of fact as to whether it was foreseeable that such a physician under strong financial pressure may compromise his Hippocratic Oath and do what was known by AEG Live's executives to be an unfortunate practice in the entertainment industry for financial gain," the judge wrote.

CNN's Don Lemon and Rachel Wells contributed to this report.


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