'I would trade my body for his, tomorrow' Randy Phillips May 2009 talking about Michael Jackson

'Michael's in great shape' says Kenny Ortega

In September 2012, emails written by Kenny Ortega and Randy Phillips, discussing Michael Jackson's health came to light - see Los Angeles Times. For those of you that are not aware, Lloyds of London insured Michael for the 'This Is It' shows, and Lloyds of London have a lawsuit out which contends that AEG Live hid Michael's health problems from them. They had asked for Michael's medical records for the 5 years preceding 2009, but never received them, Murray said Michael refused to hand them over to him.The emails have been collected by Lloyds of London for their lawsuit.

When I first heard that Michael had died of a possible overdose (initially it was reported it may have been a Demerol overdose), one of the first things that crossed my mind was :

 'Michael must have been in the last few weeks of rehearsal for the shows. He must have been onstage every day with dancers, musicians, choreographers, lighting crew etc.etc. Why didn't anyone notice that there was something wrong?'

I later found out that several people working on 'This Is It' had worked with Michael on previous shows, so they must know how he behaved during rehearsals and performances. This included Kenny Ortega and Travis Payne, the show's director and choreographer, as well as Paula Gongaware, who was now working for AEG.

These emails reveal that problems were apparent as early as March 2009, when Michael went to London to announce the 'This Is It' shows. According to the emails :

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

In March 2009, Michael had yet to hire Conrad Murray as his personal doctor, and as far as we know, Propofol was not being administered to him at this time. He passed a health test for Lloyds of London the same month, having been tested by Dr Slavit in January, and in this month he also asked nurse Cherilynn Lee to advise him on nutrition. She administered a vitamin cocktail to Michael several times in March, because he was experiencing a lack of energy and she also advises him on how to beat insomnia. Michael started rehearsals at Centerstaging at the end of March.

So it seemed that nothing is too seriously wrong with Michael at this point, and you could just put the problems of 5th March down to fear and nerves. In a previous post, This Time Around I cover corporate bullying, but what I haven't mentioned is the physical impact it can have on an individual, and how it can cause stress, fear and loss of confidence. I think that this is what Michael was experiencing, although I doubt anyone knew it at the time.

On 4th April 2009, Michael and Kenny Ortega flew to Las Vegas, with Conrad Murray. It is in Vegas that Murray first witnesses Michael being administered Propofol by another doctor, and by April 6, Murray is ordering Propofol by the box. He could be ordering  the Propofol for another patient, but by then he was unofficially working for Michael, and he has since admitted that he administered Propofol for about 2 months by 25 June. So that means he started administering in April. At this point Murray's contract was not drawn up, and it wasn't written on paper until May 15, so technically Murray could have walked away from working for Michael at any point, up until the contract was signed by himself and Michael ( and it was never signed by Michael). His claim that he was 'entrapped' by Michael just makes him appear even more of a liar.

During May, Michael was still rehearsing at Centerstaging, and he took part in selecting dancers for his shows. The rehearsal room at Centerstaging was only just large enough to take the size of the 'This is It' stage, and I imagine it was here that the finer details of the music and choreography were thrashed out by the musicians and chorepgraphers, before the show was rehearsed in a larger theatre.

May 20th is the date that the first week of 'This Is it' shows were moved from 2009 into 2010. It is also the date of the video at the top of this Blog. By this time, Michael was being given Propofol 5 nights a week by Murray for over a month. At the time of writing, there is no anecdotal evidence or emails to show that Michael was unwell during May. However, more evidence may emerge as the lawsuit progresses. When the shows were moved to 2010, there was a lot of speculation in the media that this had been done because Michael was ill. Since January 2009 there had been various wildly speculative articles saying that Michael had a rare lung disease or skin cancer. In the video above, Ortega and Phillips are attempting to reassure people that the shows were not postponed for health reasons, but merely because of staging technicalities. As I write I am not clear how much interaction Ortega or Phillips had with Michael at this point in the rehearsals. We shall see.

The problems seem to escalate in June.

May 30, and the rehearsals moved to The Forum. From June 1 to 11, Michael was in Culver City to film the Dome Project, which is the HD footage to be shown during each concert. Some fans visited Michael on set June 11, and said that he was like a skeleton. By June 12, fans report that Michael does not want to go onstage, and security starts taking extreme measures against the fans who are waiting outside the Carolwood house.

June 14 AEG Live Co-CEO Paul Gongaware wrote an e-mail to show director Kenny Ortega addressing 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."

 June 16 and the fans report that Michael did not go onstage again, and is often groggy when leaving home and after visiting Dr Arnold Klein. The emails leaked to the Los Angeles Times in September 2012, show that :

'Those rehearsing with Jackson began sounding alarms in mid-June, according to the emails, a month before his scheduled debut in London. They complained he missed rehearsals, was slow picking up routines and would have to lip-sync some of his signature numbers.

"MJ is not in shape enough yet to sing this stuff live and dance at the same time," the show's musical director informed supervisors in an email. Jackson missed another week of rehearsals, and when he finally showed up June 19, he was too weak to perform.'

On June 19, Michael was shivering, incoherent, and obsessing. Kenny Ortega sent him home.

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."

Phillips responded with 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."

This is the point where someone, one of those many people who said they were Michael's 'friend', should have stepped in and said  "he's not fit enough to continue". Unfortunately, it seems everybody saw it as someone else's responsibility, and they all seemed to hope that Michael was going to 'pull it out of the bag' at the last minute.

• They obviously knew Michael was not fit enough, so how did they expect him to make a miraculous recovery? 
• I also don't understand how Phillips can say that he checked Murray out - the fans who checked out Murray after 25th June 2009 soon dug up all sorts of money issues that Murray had.
• And why wasn't Ortega's suggestion of professional help acted upon?

The next day, June 20th, Kenny, Michael's then manager Frank DiLeo, Murray and Phillips met at Michael's rented Carolwood house. Their attitude was that Michael needed 'tough love' in order to gee him up and get him back to rehearsals. Michael was asked about the missed rehearsals, and alarmingly, Murray answered for Michael and said he was in good health. If I had been at the meeting, I would have been concerned by this - why would the doctor need to respond on behalf of Michael - was Michael at the mercy of the doctor, or were they both trying to cover something up? If I had seen Michael the day before, wrapped in a blanket on a Summer's day, I would not have believed there was nothing wrong. Are showbusiness people in Hollyood so used to turning a blind eye to artists' problems, that they no longer can see when someone is physically unfit to perform?  Can they not tell the difference between genuine illness and laziness? After receiving these reassurances, Phillips and co. left the house, seemingly confident that the rehearsals would now get back on track. Unbelievable.

You may ask yourself, why Michael himself did not ask for some time to recover. It may have been because, as a younger performer, he would have been told that the show must go on. I have some personal experience of this as a child attending ballet school. Every year we put on a show at Christmas, and we were told that if anything went wrong onstage, we were to carry on and not let the audience know that there was a problem, and we had to finish the scene and sort out the problem after we left the stage. It was also made clear that if we were unwell and could not go onstage on the day of the show, that we would be letting everyone in the show down, and that an understudy would have to be found which would be a great inconvenience to everybody. People seemed to be angry that you would dare to fall ill, as if you were doing so just to annoy them. Professional dancers will often go onstage when sick, because they fear the consequences of 'letting everyone down'. Most dance companies have a dedicated physiotherapist, who will advise whether dancing with an injury will cause further physical damage or not. Dancers know that injury may end their careers, so they do listen to the physiotherapists advice. It may be that AEG Live thought that this was the kind of service that Murray was performing for Michael, advising him how to stay healthy when he was tired or injured. But most performers are not likely to readily say 'I can't go on tonight'. Especially when, as with Michael, they are solo performers, and there is no one to understudy them! They know that if they do not turn up at rehearsal or for a show, that everyone in the show will be sent home, and a paying audience will have their money refunded. 

So if Michael was not going to ask for help, and the big guns running 'This Is It' were washing their hands of responsibility, who was left to help Michael?

Michael may not have realised that he would not be able to cope, when he signed the 'This Is It' contract in January 2009. He hadn't performed a series of concerts for 12 years, but he would have no reason to think he couldn't do it again. Even if he did have doubts, he needed the cash, and from the year 2000 music sales for any artist no longer generated good revenues, so he was forced to do live shows, which had proved to be successful money makers for other artists. He agreed, knowing that doctors had warned him not to tour again, as it would not be good for his health. The doctors knew that Michael often did not eat or drink enough during tours, and he became dehydrated and lost a lot of weight.
Some of the comments that Randy Phillips made about Michael during the 'This Is It' rehearsals, suggest to me that he has no idea of the physical and emotional pressure on a performer. From personal experience, I can assure you that giving an electrifying performance is not only physically but also emotionally draining. Even if Michael was only rehearsing and not performing full out, he was still the only person who could say 'yes, the music is played correctly', or' no, you aren't doing that dance routine correctly', because he wrote nearly all the music and helped create the iconic dance moves. He had to do all that extra work on top of rehearsing his own performance. It's a lot to take on, especially when you know you have to do it, even though it will probably make you ill.

I am sure that once he started rehearsals in April, he would begin to feel the pain of any old injuries, and if he had not recovered from the corporate bullying that I believe he suffered, he could be stressed, fearful and riddled with self-doubt. As a seasoned performer, he would know that this was not the way he should be feeling, and he may have worried that couldn't continue like that. Maybe that is why he was asking for the vitamin injections? Maybe when they did not help, he turned to Propofol, just to get some sleep?

Whatever the reason, the fact remains that by June, he was showing signs of being unwell, and Ortega and Phillips knew it. Phillips seems to think Michael is being lazy, and Ortega saw signs of problems, but didn't follow through and make sure that Michael had professional help.

As well as the Lloyds of London lawsuit, there is also the Jackson family wrongful-death lawsuit, which is going to trial to look at whether AEG Live were negligent in hiring Dr Murray, starting April 2. Let's see what else it reveals.

"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," Superior Court Judge Yvette Palazuelos wrote in her order, which became public on March 1.

"Triable issues of fact exist as to whether it could have been foreseeable that Dr. Murray would engage in the exact behavior alleged here: Dr. Murray's provision of drugs which led to Decedent's death," she said.

AEG Lawsuit – 30 December 2010 AEG Demurrer

Note: in the bulleted list below, my comments are in bold.

The attorneys for AEG Live have filed notice of a demurrer that they will use in court on 2 February 2011. This is in response to the complaint filed by Katherine Jackson on 15 September 2010, which sues AEG, and claims they breached their legal duties to Michael.

·         The demurrer says that Katherine lacks standing to assert any claims on behalf of Michael Jackson, because her complaint gets the law and the facts wrong, and her theories are just that. AEG claim that only Michael’s personal representative can prosecute them, not Katherine. There is a note in the footer which says the estate is in probate, and that John Branca and John McClain are therefore Michael’s personal representatives.

·         The demurrer say that rather than pleading recognised legal duties that Katherine alleges AEG had to Michael, she is trying to create new theories of liability.

·         They state that the performance contract did not create any special duty-of-care, just because AEG arranged for his housing and transport. AEG is not liable for premises liability nor for the actions of a third party within the premises. They say that because Michael had not yet signed the contract with Murray, AEG did not have to supply medical equipment for Murray to use. Various internet articles have stated that there are several monitors that should be used when giving a patient propofol, for example, and Katherine’s lawsuit set out to show that Murray asked for the equipment but that AEG did not provide it. So the demurrer is pointing out that Murray would not receive equipment until Michael signed the contract, and is implying that Murray should not have gone ahead with any treatment that required them. AEG attorneys also say that AEG could not have foreseen that a personal doctor would treat Michael with an anaesthetic that normally is only used in a hospital, and therefore they are not liable under duty of care.

·          AEG attorneys say that AEG and Michael did not have a ‘special relationship’ because Michael was not a dependant of theirs. Katherine’s lawsuit claims that AEG exerted ‘an extraordinary degree of control over Michael’ but AEG attorneys say they do not provide facts to back this up. They only back up that he was financially dependant on the money he was going to receive in advances. Now this is where it may get interesting, because AEG attorneys do not deny that Michael was financially dependant on the money he was due. If Katherine’s attorneys are canny they will home in on this, because I do feel they have a case to show that the contract could have made Michael financially dependant on AEG for 2 and a half years. Leonard Rowe says in his book that parts of the contract were not standard practice, and I think that the contract may have been worded in a way to KEEP Michael financially dependant on AEG for two and a half years or more. Leonard describes the AEG contract as grounds for malpractice and a breach of fiduciary duties. The demurrer goes on to say that despite the lawsuit alleging that Michael was threatened with cancellation unless he accepted Dr Murray’s services, which they claim indicated a ‘special relationship’, Michael was only under pressure financially. Here AEG attorneys are actually agreeing that Michael was under pressure financially and furthermore under pressure financially to accept Murray’s medical care. So he was dependant financially on AEG, and under pressure financially to accept Murray. So maybe it could be proven that he agreed to both under duress? AEG attorneys then say that Michael could have refused Murray and cancelled his contract with AEG. But they have just agreed that he was under pressure financially. His contract states that if Michael cancels, he has to pay back all advances plus all production costs incurred. That means the rent on the house, any cash advanced, transport costs, cancellation premiums, Tohme’s salary, rehearsal costs etc etc. How many millions was that? I estimate well in excess of $6m and may be as much as $36m. The cancellation insurance (paid by Michael, and benefitting AEG) would probably cover these costs, but what recompense would Michael get? Probably nothing, and his reputation and career would probably be extinct too.

·         It says that the complaint seeks to hold AEG liable for fraud without alleging any actual misrepresentations. Here Katherine was trying to show that AEG made false representations to Michael, when they went to his house on 18 June 2009, in that they said they were looking after his well-being and best interests, but actually were threatening him to accept only Murrays’ medical care. AEG attorneys say that the allegation does not specify what was said, by whom, and who had the authority to make the statements. As if anybody needs authority to make a threat! A threat is a threat. So they knew he was under financial pressure, and they threatened him with more. Great. The problem is, without witnesses, it is quite difficult to prove that any threat took place. Randy Phillips was there, with Murray and Michael. Who of these will testify a threat took place?

·         Katherine’s complaint holds AEG liable under respondeat superior , but the AEG attorneys says she does so without recognising that there was no special employer-employee relationship. (respondeat superior : Latin, Let the master answer.] A common-law doctrine that makes an employer liable for the actions of an employee when the actions take place within the scope of employment.AEG attorneys say that because Dr Murray was employed by Michael and not AEG, that there are no grounds for a employer-employee relationship regarding Murray. They also say that Katherine should have claimed for wrongful death due to medical negligence within one year, and she has failed to do so, so her claim should be dismissed.

·         AEG attorneys  say that Michael, not AEG, controlled his medical care and hired Dr Murray. They refer to the contract between Michael and Murray, which Murray had signed but which had not yet got Michael’s signature. They point out that the contract was between Michael and Murray, not AEG and Murray, and as it was not signed by all parties, was not yet in force. But as we saw above, Michael was later put under pressure by AEG financially to accept Murray’s medical care. We have been told in the past that Michael was told by AEG not to visit his dermatologist anymore, and only accept Murrays care, or AEG would pull the plug on everything. If Michael did not accept Murray or cancelled with AEG, they would want all their money back.

·         AEG attorneys say Katherine has not shown that AEG were told that Murray was unfit to be Michael’s doctor, nor has she shown that they knew Murray was giving Michael anaesthesia.

·         The demurrer says that the claim for Prince Jacksons’ emotional distress at seeing his father lying injured, should be dismissed because Prince did not witness the actual injury taking place. Maybe not, but he would have seen his father with an IV in his leg, and maybe various syringes and vials were being used as Murray was trying to resuscitate Michael. He would have known that something was wrong. It wasn’t as if Michael was just lying there under the bedcovers with his eyes closed. The scene must have been chaotic and a total shock.

Generally, this demurrer is nothing less than I would have expected. I don’t think they are not going to admit any wrongdoing or liability, and are only going to respond if accused of something directly. I have seen this tactic used before myself, although outside the courtroom:

I will only answer direct questions. If you don’t ask the right question I am not giving any extra information.

I will try and divert your attention onto less relevant issues, in the hope you will forget to ask me about the important issues.

Ding.Ding. Round 2.

UPDATE: A judge ruled in L.A. on 2nd February that the lawsuit can proceed. Judge Yvette Palazuelos stressed that Katherine's case would need to provide evidence of “fraud, negligent infliction of emotional distress and civil conspiracy”, adding that proof of the latter was currently lacking. Palazuelos said that any agreement that Dr Murray would ensure Michael made it to rehearsals was not, in itself, an illegal act, and that evidence would be needed that the implications of such an agreement were more sinister.
Kenny Ortega, who had worked with Michael before, and who was director of 'This Is It', was originally named as a defendant. But Katherine Jackson's attorneys recetly dropped him from the suit, citing new information.
The next hearing in Katherine Jackson's civil case is scheduled for March 22.
UPDATE: On March 21 2011 AEG filed their answer to the Lawsuit, denying every allegation.
UPDATE: 2 June 2011 the trial date has been set as 10 September 2012.