Brooke Ashley Workers Comp Hearing Continues
Level of responsibility producers must take for health of performers hangs in balance
Posted Jul 20th, 2007 00:00 AM by Mark Kernes
SANTA MONICA, Calif. - The adult industry will have to wait until at least December 4 before finding out if the relationship between producers and talent will undergo a revolutionary change, thanks to a legal case that's been nine years in the making.
December 4 will mark 90 days after testimony in the workers compensation case known as "Doe 43" will be completed before Judge Lisa A. Sussman, a judge of the California Workers Compensation Appeals Board.
That final witness will be writer/director Cash Markman, who spent about a half-hour on the stand yesterday morning, being questioned by Elliot Berkowitz, attorney for claimant Doe 43, better known to the adult industry as actress Brooke Ashley.
It was in early 1998 that several porn stars, including Ashley, Tricia Devereaux, Kimberly Jade and a European actress named Caroline, were discovered to have been infected with the human immunodeficiency virus (HIV), allegedly by legendary actor Marc Wallice, who had been working for several months with a forged HIV test from a clinic used by almost no one else in the industry.
It was the Wallice case that led to the creation of the Adult Industry Medical (AIM) Healthcare Foundation and the universal use among adult talent of the PCR-DNA test for HIV, replacing the old ELISA HIV-antibody test which, due to its long incubation period, was deemed to be unsatisfactory for use in the adult video setting.
Brooke Ashley's infection is thought to have occurred on the set of The World's Biggest Anal Gangbang
, shot over two days at the old Gourmet Video studios in March of '98. The shoot was produced by Dan Beck, who had been best known up to that point as the producer of a series of sexually-explicit "reality TV" shows titled "Late Night with Jonathan Morgan," which were shown on the adult TEN Channel.
Beck's financier for The World's Biggest Anal Gangbang
was reportedly one Robert Dupree, and in the current proceeding, Berkowitz and Workers Compensation Bureau attorney Nora Tu-Willis are seeking to have the court declare that Ashley was Dupree's employee. If such is the finding of the court, Dupree would be required to pay workers compensation to Ashley, or if for some reason Dupree were unable to do so, Ashley's compensation would be paid from the Uninsured Employees' Benefit Trust Fund. Additionally, Dupree might be assessed fees for not having paid for workers compensation insurance for Ashley while she was his employee.
The central question, however, is whether in fact Ashley was an employee of anyone
while making The World's Biggest Anal Gangbang
, or simply an independent contract selling her services to the production company, as is currently considered to be the case with the vast majority of adult productions today.
Several witnesses, including Ashley herself, have already given depositions in the case, and several have been called to testify in the Workers Compensation Appeals Board proceeding. On Thursday, the first witness was Ran Munee, who served as the cook for the shoot, but soon found himself drafted into the production manager's job, one of his duties then becoming the collector of the HIV tests from the performers.
"I told them that I provided food for the shoot," Munee recounted his testimony from the proceeding, which was closed to the press, "and then when I got there, I found that I had to collect the paperwork and that specifically, some people didn't have correct paperwork, things of that nature. I was asked if I ever saw her [Ashley's] test, which I did not; that was collected by Dan Beck."
Munee, who'd been on the tech side of the industry for several years, was immediately suspicious about Wallice's test.
"It looked like it was a forgery all the way," Munee declared. "I was going to tell him to go home and get the original. I had asked him for the original there and he said he would have to go home, all that, and Dan Beck came in and said, 'No, no, that's good; we need a name.'"
Munee said that Wallice's wasn't the only test he questioned.
"On the live gangbang, they had all these crazy guys come in and specifically had paperwork that was not right," Munee recalled. "Like for instance, the shoot's in March, and this guy brings in a test from October and he says, 'Well, I haven't had sex since then.' I says, 'Well, I'm sorry to hear that, but you still have to have a current test.' This guy – they had certain guys that were just off the street. They had sent out a thing, 'Do you want to be in a gangbang?' And then they brought in the ringers like Marc Wallice and Buck Adams and people like that."
Markman later disputed the idea that Beck had hired performers "off the street."
"There was nobody off the street," Markman contradicted. "Everybody who came in was professional talent; they all had paperwork, although the paperwork may have looked a little shady with some of them and certainly with one of them [Wallice]... It was a photocopy; I remember that."
"Dan had like 50 guys booked," Markman continued. "He may have fallen a little short, but that was the magic number he wanted, so then what he did was, he was getting desperate towards the end to find people. I do know he was scraping the bottom of the barrel by the end of the two days to come up with more people because he wasn't paying them very much. He was only paying the guys like $150 each."
According to Markman, the going rate for male talent in '98 was $300 per scene.
Markman said he was questioned by Berkowitz for about 25 minutes.
"It was clear that he was trying to find somebody to pin the blame on," Markman said, "so he asked a lot of questions about the industry; in particular, about what a director does and how directors direct these movies and what we tell the talent to do, and do we tell them where to report for work and what time to perform and who to perform with and how to perform, what positions to get into, and tell them to say specific things while they're doing their scenes and all that type of stuff."
"He didn't like my answers," Markman continued, "because I told him that in a scripted movie, absolutely, I will give them specific direction, but when it comes to sex scenes or all-sex movies like this thing, we tell them what it's about and let them to their thing, and the only time we ask them to do something differently is if they're not giving us what we want. Then we may call out, 'Give us more energy,' or 'Honey, throw your head back; your hair's in your face' or something like that. I said, as far as I direct, I let them pick their positions and they usually get to pick who they're going to work with and they get to decide whether they want to wear condoms or not, and I could tell he didn't like those answers because he's really trying to find somebody to say 'This person is responsible for what happened to her.' So he was trying to nail me in regards to show I was the director of the movie."
But in Markman's opinion, Dan Beck was the point man on the set, having booked the talent, arranged for the stage, arranged for the set dressage and other technical details.
"It was a very bizarre shoot," Markman characterized. "It was the type of thing I've never done before, because Dan set it up to where Brooke was going to be on the stage and these guys were going to come in one after another, and she would remain basically in one spot, and they would come in and do one or two positions with her, and the next guy would come in and tap him on the shoulder and do one or two positions with her. This went on for two days, and it was, I thought, very boring, very visually boring – I mean, it was kind of cute for the first two or three guys with them tapping each other on the shoulder, but after that, I'm thinking, 'Man, this is dull; you know, it's just the same thing.' And I said, 'If I were directing something like this, it would have been directed a lot differently, so no, we were trying to record what was happening, but it was basically choreographed already and Dan was telling everybody before they came into the room what they were going to be doing. And we would take breaks every three or four guys and Brooke would have about 15 minutes to recover and then we would go back and do another three or four, and this went on for two days."
Markman said it was obvious to him that this was a very difficult shoot for Ashley.
"It was a grueling shoot," he said. "After two days of that, my heart went out to her. She was in distress, because you can imagine, by the end of the day, she was in tears, and we would take a long break because she would be crying because it had become such an ordeal. It was so degrading to be shooting this way, and have this never-ending line of guys, and then she came to me and asked me if I could go talk to Dan and tell him she didn't want to work with a couple of these guys, and there were a couple of others, she wanted them to wear condoms because she thought they looked dirty or whatever. She was fine with Marc [Wallice]; she knew Marc. So I went back and talked with Dan, and he said, 'I've got a contract with her, and she's supposed to do these scenes or a certain amount of scenes without a condom.'"
That contract could conceivably play an important role in the current proceeding, and Markman told AVN.com his recollection of its terms.
"He [Beck] showed me the contract," Markman stated. "It was a couple of pages long, and – because when I went in and said, 'She doesn't want these guys to not be wearing condoms,' he pulled the contract out and said, 'I have a contract.' It either said no condoms or a certain percentage. I think there may have been a certain percentage, like maybe out of the 50, 10 of them could and 40 couldn't, because he wanted it to be primarily non-condom, and so I remember there was a clause in there about condoms; I just can't remember if it was none at all or it was a small percentage was allowed. So he did have the contract for her to do those two days, and to promote it. There were some clauses in there that she would come back on the live show and promote it and that he paid in installments; as she honored different portions of the contract, she'd get another check. So it was a contract situation, absolutely."
Markman said he understood the implications that Judge Sussman's final decision could have for the adult industry: That it could force producers to treat talent as employees who needed to be accorded certain employee benefits, rather than independent contractors.
"I hope not, because it would destroy a good chunk of our business," Markman opined. "A lot of people are going to be out of work if that happens. The profit ratio on these movies is so small, there may be people getting rich in this industry at the end of the year, but on individual movies, they're making so little profit now that if you had to increase the budget to pay for this type of insurance and pay for payroll costs, it's going to make most of these production unaffordable. So I would guess 80% of the companies will be out of business, and that means 80% of the directors, 80% of the crew people and 80% of the talent aren't going to be working. It's going to be a much small industry, like it was 30 years ago. I'm hoping that doesn't happen, because there's a lot of people in this industry I like who are barely getting by now, and I'm talking about crew people mostly, but some talent as well, and they're just not going to be working, period. And look beyond that as well; all the taxes, all the revenue that the city makes off of adult movies, 80% of that's going to go away. So people who don't look at the big picture and don't realize all the benefits [of talent's independent contractor status], it's going to hurt everyone. The economy will take a big hit in this city if something like this were to happen."
Markman also said that whatever the outcome of the workers comp proceeding, he expected Ashley to file a civil lawsuit as well.
"Maybe this judge's entire decision is going to be based on whether Doe 43 is eligible for workers comp or state assistance or whatever, but the fact that there were two other attorneys there, one representing the financer of the video, the other representing the talent, just the tone of the questions, the degree of the questions and who they were coming from tells me that this isn't going to be over when this particular trial is over," Markman summarized.