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Michael Jackson's survivors vs. AEG: a gold mine for witnesses

Wrongful-death suit means lots of expert medical and business testimony. And that means each side pays big bucks to those who take the stand.

August 03, 2013|By Jeff Gottlieb
  • Michael Jackson
Michael Jackson (Los Angeles Times )

A lot of people are making a lot of money off the Michael Jackson wrongful-death case — and then there are the lawyers.

Witnesses in the case are being paid huge sums to analyze the pop star's earning power, his health, his popularity, even his inability to get a good night's sleep.

Attorneys representing concert promoter AEG Live on the one side and Jackson's mother and his three children on the other have so far spent around $1 million just on experts who have testified about how much money the singer could have earned had he not died in 2009 from an overdose of the anesthetic propofol.

That doesn't include physicians who are also being paid as expert witnesses. One of them, Dr. Charles Czeisler, a Harvard University sleep expert, testified how propofol may have affected Jackson. He was paid $950 an hour.

"For $950 an hour, can you please keep your answers short?" said attorney Michael Koskoff, drawing laughter from jurors.

The stakes in the lawsuit, in its third month and counting, are enormous — at least in terms of dollars. Each side is bringing in highly paid experts to convince jurors of their case, sometimes leading to dueling witnesses.

Certified public accountant Arthur Erk, testifying for the Jacksons, calculated that the singer could have made $1.5 billion if his doomed "This Is It" concert series in London had blossomed into a world tour, and an additional $500 million from subsequent tours, endorsements and merchandise sales.

Erk told jurors that he was being paid $475 an hour and that his firm had so far billed $332,500. The clock was ticking as he sat on the witness stand, telling the jury how much he was making.

AEG's expert was Eric Briggs, a senior managing director at FTI Consulting in Century City. He said it was speculative to think Jackson would earn anything at all because of his drug use, erratic behavior and track record of canceling shows. The notion that he could even pull off such an ambitious tour was doubtful, he said.

Briggs testified that he was costing AEG $800 an hour and that he had already spent about 350 hours on the case. He said his team put in 500 to 600 hours and that they had billed AEG between $600,000 and $700,000.

From the beating he took on the stand from Jackson attorney Brian Panish, he might not have thought that was enough.

One of the consultants who worked with him, Briggs testified, was a year out of college. Briggs said he had done "general research," such as finding out the capacities of arenas where Erk said Jackson might perform during his world tour.

The recently graduated consultant charged $350 an hour.

So whom are the 12 jurors to believe?

USC law professor Jody Armour said people tend to think of experts as neutral observers reciting facts.

"But these experts are actually trying to persuade the jury that their version is the version they should buy," he said. "It's an odd role these scientific experts are thrown into."

The Jacksons have sued AEG Live and two of its executives, alleging that the entertainment company negligently hired and controlled Dr. Conrad Murray, who administered the fatal dose of propofol to Jackson. AEG says the singer hired Murray and that any money the company was supposed to pay the doctor was part of an advance to Jackson.

When the dollar stakes are far lower, plaintiffs' attorneys, who usually foot the bill for experts, must think twice before taking a case. The amount they can collect — even if they win — might make it not worth their time, lawyers said.

Expert testimony can backfire. The Jacksons' attorneys liked the deposition of AEG expert Dr. Paul Early so much that they played portions of it during the trial. Early testified that addicts shouldn't be blamed for their problem.

AEG has not called him to the witness stand.

The fees that witnesses charge can vary greatly. Gordon Matheson, head of Stanford University's sports medicine program, testified as an expert for the first time. His fee was $500 an hour. Matheson testified that Murray had conflicts of interest that would probably lead to poor medical decisions.

Dr. Daniel Wohlgelernter, a cardiologist who testified for the Jacksons, said he receives about 20% of his income as an expert witness. He said he had testified in 31 trials and been retained as an expert in 400 cases. He was paid $4,250 for half a day of testimony and $450 an hour to prepare.

Czeisler, the Harvard sleep expert, testified for the Jacksons for several days. AEG's attorneys argued that though he may be a world-renowned sleep expert, he wasn't an expert on propofol.

That forced the Jacksons' attorneys to call anesthesiologist Emery Brown, who holds endowed chairs at Harvard and MIT and is considered one of the world's experts on the anesthetic.

Brown, who testified in a video deposition, said he was being paid $1,000 an hour but that he was donating his $75,000 fee to Massachusetts General Hospital.

Jurors, Armour said, often suspect that one side or the other is buying an expert to provide the testimony it wants. Brown's contribution, Armour said, boosts his credibility to the jury.

"He's donating it all to charity, ladies and gentlemen of the jury, so this is coming from the heart," Armour said. "It's a bowl-you-over rhetorical move to make."

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