Inn

Robert G. McGrath Inn of Court – January 14, 2010

Judge Cram’s Group Presents

1 vs. 100 (Michael Jackson and Tiger Woods)

Supplemental Information

Game 1:

$100 Question

Jackson comes to Dr. Murray complaining of severe pain and the good doctor prescribes Jackson loads of Demerol (a schedule II substance). Is Dr. Murray subject to discipline by the California Medical Board?

a.) No, such violations are to be pursued through criminal and civil actions. b.) Yes, Dr. Murray was negligent in his treatment of Jackson.

c.) Yes, Dr. Murray cannot prescribe a schedule II substance to just anyone.

ANSWER:

The correct answer is A. The California Medical Board allows physicians to prescribe controlled substances to any person under their treatment who suffers from pain, including “intractable pain.” Pursuant to California Business and Professions Code §2241.5(b) No physician and surgeon shall be subject to disciplinary action for prescribing, dispensing, or administering dangerous drugs or prescription controlled substances in accordance with this section. However, physicians may be held to criminal or civil liability for their actions.

Source:

2241.5 (a) A physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain.

$500 Question

If Tiger Woods hit a power pole while driving his vehicle on a public roadway in San Francisco he could appropriately sue which of the following pursuant to Government Code § 830 et seq.

a. PG&E

b. Cadillac

c. City of San Francisco

Answer: c. The only Public Entity is c. PG&E is a utility regulated by the PUC, but it is not a public entity for purposes of the government code. The relevant statute relating to dangerous condition of public property is government code § 835 which reads:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably forseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

$1000 Question

A video of a toddler dancing to a few measures of Michael Jackson’s “Beat It” appears on YouTube. Jackson’s record company demands that YouTube remove the video, which YouTube immediately does despite the fact that the right to “fair use” clearly applies. The toddler’s mother sues YouTube for damages. The most likely outcome is:

a. Recover of at least nominal damages, since the video was “fair use”.

b. Uncertain, without knowing more facts.

c. No recovery of damages, since the copyright holder demanded the removal.

Answer: C. The Digital Millennium Copyright Act immunizes an online service provider like YouTube from liability for complying with a copyright holder’s request to take down content, unless and until it receives a counter-notice challenging the holder’s claim of infringement.

$2000 Question

Before he died, Jackson paid $250,000 of the $500,000 advance fee due on a contract with ABC Talent Agency to arrange film auditions for his friend and doctor. ABC is suing the Estate for the remainder of the fee, stating that it will immediately schedule several auditions once it has been paid. The most likely outcome is:

a. ABC will prevail; Jackson’s partial payment renders the contract enforceable.

b. ABC will not prevail; advance fees are not proper.

c. ABC will prevail; a contract is a contract.

Answer: B. Labor Code §§1701 et seq. flatly prohibits the charging of advanced fees for “talent services” such as arranging for auditions.

$3000 Question

At the age of 13, Michael launched his successful solo singing career, earning huge sums over the next five years. His father collected all of this money on Michael’s behalf, setting aside 10% for Michael to access when he turned 18; the rest was spent on family expenses. When he was 16, Michael promised to pay Father back the 10%, but he never did so. Father is now suing the Estate to recover these funds, and the Estate is countersuing arguing that 10% was an insufficient set aside. Ignoring statute of limitations issues, what is the likely outcome of this dispute:

a. Both claims dismissed; Father acted voluntarily; 10% was sufficient set aside.

b. Father wins; income to minors legally belongs to their parents and Father relied on promise of repayment.

c. Estate will win; 10% set aside was insufficient.

Answer: c. The “Jackie Coogan Law” (Family Code §6752) requires that at least 15% of a minor’s entertainment earnings be held in trust for the minor’s benefit until emancipation.

$4000 Question

Michael Jackson's estate sues his doctor, Conrad Murray, for wrongful death for his alleged overmedication of the pop star. Murray asserts contributory negligence as a defense, as the pop star voluntarily ingested all drugs given to him. Will this defense succeed?

a. Yes, the defense is applicable but it is up to a jury to apportion fault to reduce the ultimate recovery.

b. Yes, Michael Jackson's voluntary ingestion bars recovery.

c. No. Dr. Murray is strictly liable as Michael Jackson's personal physician.

Answer: A. California follows a pure comparative negligence rule: a claimant's negligence reduces his recovery but will never bar recovery. Li v. Yellow Cab Company, 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975). The plaintiff's negligence is compared to the combined negligence of plaintiff and of all tortfeasors, whether or not joined as parties, to determine the amount of the reduction. American Motorcycle Ass'n v. Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978).

$5000 Question

If Dr. Conrad Murray, Michael Jackson’s personal physician who was with the singer when he died on June 25, 2009, is eventually charged with any criminal offense, he will most likely face which charge?

a) Unauthorized Practice of Medicine

b) Involuntary Manslaughter

c) Improper Administration of Prescription Medications

Answer: b) Involuntary Manslaughter.

You remember this from law school, right? If not, we suggest Google.

$6000 Question

During Michael Jackson’s 2005 trial on charges of child sexual abuse, evidence of other alleged instances of sexual misconduct was introduced under what provision of the Evidence Code?

a) Evidence Code section 1108

b) Evidence Code section 240

c) Evidence Code section 1271

Correct Answer: A. Evidence Code section 1108

$7000 Question

When Tiger Woods declined to discuss specific details about the events leading up to the traffic accident that occurred outside his home, which privilege was possibly at issue?

a) Privileges and Immunities Clause

b) Privilege against self-incrimination

c) Privilege for Confidential Marital Communications

Correct Answer: C.

In California, Evidence Code section 980 allows a spouse to refuse to disclose and prevent the disclosure of communications made in confidence with the other spouse while they were married. However, Evidence Code section 985 removes the protection of this privilege if one spouse is charged with a crime against the person or property of the other spouse, a child of either spouse, or a third person while committing a crime against the person or property of the other spouse. This section also removes the privilege if one spouse is charge with Bigamy or with the willful failure to provide for the care of a child or the support of a spouse.

Evidence Code sections 970 and 971 provide that a married person has a privilege not to testify against his or her spouse in any proceeding and a privilege not to be called as a witness against the other spouse. However, Evidence Code section 972 contains a million exceptions to these privileges, including criminal proceedings, Juvenile Court Proceedings, and family court proceedings.

$8000 Question

Because of the accident, the officer had the ability to arrest Tiger without a warrant if he had:

a) Seen Tiger actually drive the vehicle

b) Reasonable cause that Tiger has been driving while under the influence

c) Smelled alcohol on Tiger’s breath

Correct Answer: B. Under Vehicle Codes section 40300.5, a police officer may, without a warrant, arrest a person, following an accident, when the officer has reasonable cause to believe that the person had been driving under the influence of alcohol or drugs or a combination of both.

$9000 Question

If Elin assaulted Tiger prior to his accident and was later convicted of any crime involving domestic violence, she must:

a) Register as a batterer

b) Participate in mandatory counseling

c) Spend a minimum period of time in county jail

Correct Answer: B. An individual who has been convicted of a domestic violence offense or, for that matter, any offense involving domestic violence must participate in a program of mandatory counseling. California Penal Code section 1203.097.

$10,000 Question

Before trying his medical malpractice case, Jackson's attorney hires the state's most well renowned expert, Dr. I-know-everything-and-you-know-nothing, M.D.

Must Jackson's attorney hire the doctor to prevail?

a. Yes, a plaintiff MUST hire an expert to establish a prima facie case.
b. Yes, this expert will assist the jury in understanding matters beyond a layperson's knowledge.
c. No, it is OBVIOUS that Jackson's attorneys committed medical malpractice and the use of Dr. I-know-everything will simply be a waste of resources.

Correct Answer: A

To establish a prima facie case of medical malpractice, the claimant must present expert medical testimony verifying the claims of negligence. Mann v. Cracchiolo, 38 Cal. 3d 18, 694 P.2d 1134, 210 Cal. Rptr. 762 (1985).

Game 2:

$100 Question

If MJ’s mother Katherine, cannot serve as guardian for his children, who will take over?

A. Anyone the court determines is suitable and able to provide adequate care.

B. Debbie Rowe, their biological mother.

C. Diana Ross, nominated in MJ’s will as successor guardian.

Correct answer: A

In Michael Jackson's case, he nominated Diana Ross as guardian should his mother be unable or unwilling to serve. According to Probate Code Section 1514, a parent's nomination will be honored for a guardianship of the estate, unless the guardian is deemed unsuitable. But in appointing a guardian of the person, the court is governed by Family Code Section 3020 et seq. Family Code Section 3040 sets for the order of preference for custody, and where neither parent is available, then the court may award custody to "any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child."

$500 Question

Joe Jackson, the children’s grandfather, wants visitation. He will get it if he can show that:

(a) There is a compelling need.

(b) He is a biologic grandfather.

Correct Answer: C. (Fam. Code § 3103(a).) Neither (a) nor (b) state the correct tests.

$1000 Question

The DEA joined the LAPD in the investigation of Jackson’s death due to prescription drugs. Does the DEA have the authority to investigate issues otherwise protected by doctor-patient privilege?

a) No, despite his death, MJ’s physician-patient privilege will preclude this investigation.

b) No because Propofol is not on the DEA’s controlled substance list

c) Yes, the DEA could legally follow, in the entirety, the prescription drugs supplied to Michael.

Answer: C. Propofol is not a controlled substance and not under the DEA's authority; however, the DEA can investigate issues otherwise protected by doctor-patient privilege because they have the authority to see what was prescribed to Michael Jackson, the federal rules about all the privacy and the doctor issues are negated.

$2000 Question

Following Michael’s death, Jon Gosselin brings an action claiming he is the real father of Michael’s kids. Who must be joined as a party to this action?

(a) His son Blanket

(b) His son Prince

The correct answer is B.

Michael’s son Prince. Prince is 12 or older and therefore must be made a party to Gosselin’s action (Fam. Code § 7635(a)), which Gosselin is allowed to bring pursuant to Family Code § 7630(c). Michael’s son Blanket is under age 12 and, therefore, joining him is discretionary. (Fam. Code § 7635(a).) Assuming Debbie Rowe is the natural mother of all three children, joining her would also be discretionary. (Id.) Note that her biological relationship to Prince and Paris has been questioned recently, and it has never been claimed that she is the mother of Blanket.

$3000 Question

Michael’s mother seeks custody of the kids. Debbie Rowe opposes the request as to Prince and Paris, but not as to Blanket. Will the court separate the siblings?

(a) No

(b) Yes, if Debbie can establish she is the natural mother of Prince and Paris

The correct answer is C – “extraordinary educational need” is one of the compelling circumstances specifically listed as possibly providing for separation of siblings. In re Marriage of Williams (2001) 88 Cal.App.4^th 808, 814. The other extraordinary needs listed in that case are “emotional” and “medical;” there is also a catchall provision for “some other compelling circumstance.” Id. Accordingly (a) is not correct. (b) is not correct either since Debbie Rowe’s status as natural parent would not be enough by itself for the court to order separation of the siblings.

$4000 Question

Under California Evidence Code 1108, bringing in evidence of "prior bad acts" to suggest that a defendant had a propensity to commit a crime is

a) Allowed in child molestation cases

b) Allowed if California Evidence Code Section 352 is not violated

c) Never allowed to show the propensity to commit a crime

Answer: A. CEC 1108 allows prior similar incidents of child molestation and the Court may listen and may even allow evidence of propensity and disposition as long as 403/ 352 is not being violated.

$5000 Question

The Associated Press and other media agencies requested the release of Michael Jackson’s formerly classified FBI file based on:

a) The US Patriot Act

b) The Freedom of Information Act

c) His Death Certificate

Answer: B. Over 300 pages were released of Michael Jackson’s FBI file however; despite an application under the US Freedom of Information Act, just over half of the file will remain sealed.

$6000 Question

After Michael dangles Blanket out a window, Ellen Degeneres reveals that she is Blanket’s mother and requests custody. Which of the following will not be considered by the court?

(a) Jackson’s absence from the family home during a brief tour

(b) Blanket’s health, safety and welfare

The correct answer is A – the court won’t consider Jackson’s tour absence assuming it is brief and Jackson shows an interest in maintaining custody, maintains regular contact with Blanket and does not indicate an intent to abandon him. (Fam. Code § 3046(a)(1).) (b) will be considered by the court pursuant to Family Code § 3011(a). (c) will also be considered by the court, but to restrict custody there must be an affirmative showing of harm to the child. In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1030.

$7000 Question

Assume that Debbie is found not to be the natural mother of Prince and Paris, but wants visitation rights. Michael’s mother has custody and objects. Will Debbie prevail?

(a) Yes, if it’s in the children’s best interests

(b) No, because Debbie is not the biological mother

The correct answer is c:

As strong as the rights of such parents must be, there may be instances in which a child would be significantly harmed by completely terminating his or her relationship with a person who has (1) lived with the child for a substantial portion of the child’s life; (2) been regularly involved in providing day-to-day care, nurturance and guidance for the child appropriate to the child’s stage of development; and, (3) been permitted by a biologic parent to assume a parental role. The needs of the child, which are the most important consideration, may sometimes require that a visitation award be made to such a “de facto parent.”

In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1521. (a) is not correct, since Gayden reversed a trial court finding based on the child’s best interests. (b) is not correct because it is irrelevant; as discussed above, a non-biological person can get visitation rights if they show that they are a “de facto” parent.

$8000 Question

MJ’s father, Joe Jackson, made a claim against MJ’s estate under what legal theory?

a) As a pretermitted heir. (Probate Code 21600)

b) For a family allowance. (Probate Code 6540(b)(2))

c) For an accounting. (Probate Code 10950)

Correct Answer: B

Under Probate Code Section 6540 a Family Allowance can be awarded to a surviving spouse, minor children, or adult dependent children. Under PrC 6540(b), the court may also, in its discretion, grant such an allowance to others, including a parent of the decedent who was actually dependent in whole or in part upon the decedent for support.

When a Family Allowance is granted, PrC Section 11420 establishes that it has priority over other debts of the decedent, although it is subject to payment first of expenses of administration, obligations secured by a mortgage, deed of trust or other lien, funeral expenses, and expenses of last illness.

Michael Jackson’s father was not dependent upon his son for support, and in fact MJ had specifically excluded his father from his will. The court denied his petition for family support.

$9000 Question

Upon investigation of his death, the County Coroners Office decides to subpoena the medical records for Michael Jackson from several of his doctors, including Dr. Klein (the father of MJ's children). The Coroners office MUST be given:

a.) All of Jackson's medical records including those from Dr. Klein

b.) All of Jackson's medical records except those from Dr. Klein.

c.) Nothing, because County Coroners may not subpoena medical records.

The correct answer is B. The request for medical records is made by a coroner in the course of an investigation as to MJ's death. The relationship of Klein as to MJ's children or MJ is irrelevant. All medical records subpoenaed must be disclosed to the coroner's office without delay.

Source:

Pursuant to the Confidentiality of Medical Information Act, CA Civil Code §56.10. (a) No provider of health care, health care service plan, or contractor shall disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health

care service plan without first obtaining an authorization, except (b) if the disclosure is compelled by:

(8) By a coroner, when requested in the course of an investigation by the coroner's office for the purpose of identifying the decedent, [...] or when investigating deaths that may involve public health concerns, organ or tissue donation, [...]suicides, poisonings, accidents, suspicious deaths, unknown deaths, or criminal deaths, or when otherwise authorized by the decedent's representative. Medical information requested by the coroner under this paragraph shall be limited to information regarding the patient who is the decedent and who is the subject of the investigation and shall be disclosed to the coroner without delay upon request.

$10,000 Question

Dr. Payne prescribes Aderol to Jackson on a regular basis. At the same time, he prescribes Percodan and Oxycontin to Jackson under Jackson's alias Jack London. Dr. Payne maintains Jack London's medical records for 2 years but destroys Jackson's records every 3 months to ensure privacy. Must Dr. Payne maintain Jackson's and London's medical records for a specific period of time?

a.) No, medical records need not be maintained for any specific period of time.

b.) Yes, the records must be maintained for at least 7 years.

c.) Yes, unless the patient consents to the destruction of records.

ANSWER:

The correct answer is A. There is no general law requiring a physician to maintain patient medical records for any period of time. However, certain situations require physicians to maintain medical records for a specific retention period. Records must be maintained for 3 years when a physician prescribes a schedule II controlled substance. So, Dr. Payne could destroy Jackson's records after 3 months without Jackson's consent but MUST maintain Jack London's records for 3 years since he prescribed a schedule II substance.

Source:

Health and Safety Code section 11190 (when a physician prescribes, dispenses or administers a Schedule II controlled substance), (a) Every practitioner, other than a pharmacist, who

prescribes or administers a controlled substance classified in Schedule II shall make a record that, as to the transaction, shows all of the following: (1) The name and address of the patient. (2) The date.

(3) The character, including the name and strength, and quantity of controlled substances involved.

Health and Safety Code section 11191: The record shall be preserved for three years.

Also see: The Medical Board of California (www.medbd.ca.gov/consumer)