In July, just four months after the show opened to rave reviews, producers closed the hit Broadway musical, “Shuffle Along, Or The Making of the Musical Sensation of 1921 and All That Followed.” “Shuffle Along,” with 10 Tony nominations this year, had the makings of a long-running bonanza, but producers decided that when its acclaimed star, multiple past Tony Award winner (six!) Audra McDonald, had to leave the cast due to a surprising pregnancy (the actress was 45), it was too risky to continue. As soon as a replacement was named, ticket sales plummeted.
The show, which was capitalized for up to $12 million, had purchased a $14 million insurance policy from Lloyd’s of London to cover any damages arising if McDonald “was unable to perform because of an accident or illness.” Now producers are asking Lloyd’s to pay up, covering losses created by the pre-mature closing of the musical and by the effects on the production occasioned by other health issues related to McDonald’s pregnancy while she was still performing. “Since the beginning of previews of the Show, Ms. McDonald was unable to appear in numerous performances of the Show due to circumstances related to illness, a knee injury, and her pregnancy,” a lawsuit says. Her role was a strenuous one, requiring, among other things, a lot of tap-dancing.
Why the lawsuit, you ask? Lloyd’s says that the policy’s terms haven’t been met, arguing that the actress’s pregnancy and the associated medical conditions were neither due to an ‘accident’ nor an ‘illness’ under the policies.” The show’s position, as articulated by a lawyer representing the show, is that”‘Shuffle Along’ bought an insurance policy to cover it in the event that Ms. McDonald was unable to perform, and she was unable to perform.”
I love this story! It has everything—cold-eyed insurance executives, a perhaps manipulative diva, the sanctity of pregnancy, buck-passing, Hail Marys, feminist taboos, and Broadway!
According to the lawsuit, Audra McDonald was contractually committed to perform 52 weeks in the show’s cast. About four days before opening night, she informed the producers that she was pregnant. The lawsuit says that “given her age and medical history, the news of her viable pregnancy came as a surprise to her and, consequently, to “Shuffle Along.” So we begin with the question of what constitutes an “accidental” pregnancy. I assume we can all agree that the “illness’ provision doesn’t apply. Having children at advanced ages is something of a rich celebrity fad these days, and most of the time, it is certainly not an accident, since getting pregnant at that age usually requires a special effort.
Did McDonald get pregnant and withhold the information from producers until it was too late to replace her? That would be the rebuttable presumption, if I were judging the case. The timing is very suspicious. If she got pregnant intentionally after signing her performance contract, knowing she was trying to have a baby, then she deliberately misled her producers to have her baby and the marquee too.
I assume that asking an actress if she’s pregnant, trying to get pregnant or likely to do so during the run of the show is prohibited during employment negotiations; nevertheless, it is still unethical for a non-fungible, essential employee to intentionally incapacitate herself from delivering on contractual obligations. If her pregnancy wasn’t an accident, in other words, McDonald placed a Broadway show, a large investment, and many jobs and careers in jeopardy for her own ends.
I also assume that the producers have a duty to mitigate damages. Once they knew McDonald was pregnant, they had to know a reckoning was coming. Especially with a 45 year old expectant mother, an early order from doctors to stop tap-dancing was, or should have been, entirely predictable. Why didn’t they just delay the show’s opening and replace her immediately? Were they afraid of feminists attacking their decision as part of “war on women”? Is the lawsuit just a desperate attempt to avoid the consequences of either their star’s double-cross or their own bad gamble? Did they say at some point, “Okay, let’s see if we can get the show established while Audra can still tap, and if it looks like audiences won’t buy tickets without her, we can always make Lloyd’s pay for it.”
This could be attempted insurance fraud. Is there a legal presumption that a pregnancy is volitional? How about a logical presumption? Does the presumption reverse if a 45-year-old woman is the mother? Does privacy figure in this at all? Are the producers counting on Lloyd’s being squeamish about trying to prove in court that Audra had tried to get pregnant? I think that the show has the burden of showing that the terms of the policy were met, which means finding convincing evidence that the pregnancy was an accident. Good luck with that, although Audra has every motivation to help them, because if it wasn’t an accident, she intentionally harmed the production.
The producers could sue her next. Would they dare to sue a popular female performer for getting pregnant, though?
I can’t wait to see what happens. Based on what we know, however, Lloyd’s is on the right legal and ethical side.
Pointer and Facts: New York Times