Kyle Brennan Scientology Case - COS Subpoenas Sent to USDOJ 10 Mar 2010
Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
Transcript of Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 1/56
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCIDT
CASE NO. 12-10024-AA
The Estate of Kyle Brennan, by and through,
Its Administrator, Victoria L. Britton,
Appellant,
v.
Church of Scientology Flag Service
Organization, Inc., et al.
Appellees.
APPELLANT'S CORRECTED INITIAL BRIEF
Luke Lirot, Esquire
Florida Bar No. 714836
2240 Belleair Road, Suite 190
Clearwater, Florida 33764
(727) 536-2100 Telephone
(727) 536-2110 Facsimile
Counsel for Appellant-Estate ofKyle Brennan
On Appeal from the United States District Court
Middle District of Florida
Tampa Division
Lower Tribunal Case No.:
8:09-cv-00264-SDM-EAJ
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 2/56
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCIDT
CASE NO. 12-10024-AA
The Estate of Kyle Brennan, by and through,
Its Administrator, Victoria L.Britton,
Appellant,
v.
Church of Scientology Flag Service
Organization, Inc., et al.
Appellees.
Luke Lirot, Esquire
FIOlida Bar No. 714836
2240 Belleair Road, Suite 190
Clearwater, Florida 33764
(727) 536-2100 Telephone
(727) 536-2110 Facsimile
Counsel for Appellant-Estate of
Kyle Brennan
APPELLANT'S CORRECTED INITIAL BRIEF
On Appeal from the United States District Court
Middle District of Florida
Tampa Division
Lower Tribunal Case No.:
8:09-cv-00264-SDM-EAJ
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 3/56
APPELLANT'S CERTIFICATE OF INTERESTED
PERSONS AND CORPORATE DISCLOSURE STATEMENT
THE ESTATE OF KYLE THOMAS BRENNAN, Appellant, by counsel and
pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, respectfully submits a
complete list of all persons and entities known to have an interest in the outcome of
this appeal:
1. Judge Steven D. Merryday, District Court Judge.
2. Judge Robert Beach, Pinellas County Florida, Circuit Court Judge.
3. Martin Rice Counsel for Judge Robert Beach.
4. Church of Scientology Flag Service Organization, Inc., Defendant.
5. Estate of Kyle Thomas Brennan, Victoria L Britton, Personal
Representative of Plaintiff.
II
6. Gerald Gentile, Defendant.
7. Denise Gentile, Defendant.
8. Thomas Brennan, Defendant.
9. Luke Lirot, Counsel for Plaintiff.
10. Thomas Dandar, Former Counsel for Plaintiff.
11. Kennan Dandar, Former Counsel for Plaintiff.
12. F. Wallace Pope, Jr., Counsel for all Defendants.
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 4/56
13. Robert Vernon Potter, Counsel for all Defendants.
14. Lee Fugate, Co-Counsel for Defendants, Denise and Gerald Gentile.
15. Nathan Michael Berman, Co- Counsel for Defendants, Denise and
Gerald Gentile.
16. Richard C. Alvarez, Co-Counsel for Defendant, Thomas Brennan.
17. Peter J. Grilli, Mediator.
CORPORATE DISCLOSURE STATEMENT
Appellant hereby certifies that there is no parent company, subsidiary,
affiliate, or any corporate entity related to Appellants, The Estate of Kyle Thomas
Brennan.
Luke Lirot, Esquire
Florida Bar Number 714836
III
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 5/56
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 34, Fed.R.App.P., Appellant respectfully requests oral
argument in this matter. The complex and unique issues in this case can be clarified
and reconciled in oral argument and that could assist the Court in dealing with, and
giving proper consideration to, the conduct, policies and stringent "religious
beliefs" that come to bear in this action. Oral Argument can also be useful in
addressing any concerns or unanswered questions that the Court may have.
iv
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 6/56
TABLE OF CONTENTS
Certificate of Interested Persons 11
Statement Regarding Oral Argument IV
Table of Contents V
Table of Authorities Vll
Statement of Jurisdiction 1
Statement of the Issues 2
Statement of the Case and of the Facts 3
Summary of the Argument 16
Argument and Citations of Authority 17
1. Standard of Review 17
II. The District Court Erred by Making Credibility
Determinations and Rejecting "Plausible Inferences" That
Should Have Been Left to a Jury 17
III. The Estate Presented Sufficient Factual Bases to Support
Its Allegations and Avoid any Legitimate Adverse
Summary Judgment 26
IV, The District Court Erred by Failing to Find that the
Defendants Owed a Duty of Care to Kyle Brennan29
V. Conclusion 45
v
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 7/56
Certificate of Compliance
Certificate of Service
45
46
VI
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 8/56
TABLE OF AUTHORITIES
Cases:
Aaron v. Palatka Mall, LLC, 908 So.2d 574, 578 (Fla. 5th DCA 2005) 30
Adams v. Baldwin County Bd. of Ed. Of Baldwin County, Georgia,
628 F.2d 895 (5th
Cir. 1980) 25
Allen v Board of Public Education for Bibb County, 495 F.3d 1306
(11th Cir. 2007) 21,22
Amin v. Loyola Univ. Chicago, 2006 WL 3371446 (W.D. Wis. 2006) 26
Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, (1986) 18,21, 22,24
Banfield v. Addington, 104 So. 2d. 661, 893 (1932) 32
Barfield ex reI. Barfield v. Langley, 432 So.2d 748 (Fla. 2d DCA 1983) 32
Celotex Corp. v. Catrett, 477 U.S. 317,106 S.Ct. 2458 (1986) 19
CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th
Cir. 2003) 21
Conno v. Halifax Hosp. Med. Center, unpublished, 2002 WL 32290997,(11 th Cir. 2002) 19
Corbitt v. Home Depot U.S.A., 573 F.3d 1223 (11 th Cir. 2009) 22
Felder v. Howerton, 240 Fed.Appx. 404, (11 th Cir. 2007) 24
vii
Flight Training, Inc. v. Tropical, Inc., 2007 WL 5117263,6 (S.D. Fla. 2007) 33
Food Lion, LLC v. Monument/Julington Assoc. Ltd., 939 So.2d 1106,1107-08 (Fla. 1st DCA 2006) 30
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 9/56
Frede v. J.C. Penney Corp., Inc., 2007 WL 2254513 (M.D.Fla. 2007) 31
Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520,522 (Fla.1980) 33
Hornsby v. Allen, 326 F.2d 605 (5th
Cir. 1964) 26
Horton v. Freeman, 917 So.2d 1064,1066 -1067 (Fla. 4th DCA 2006) 32
Ja Dan, Inc. v. L-J Inc., 898 F.Supp. 894, 900 (S.D.Fla.1995) 31
Johnson v. Bd. of Regents, 263 F.3d 1234 (11th CiT.2001) 17
Jones v. Caddo Parish SchoolBd., 499 F.2d 914, 918 (5th Cir. 1974) 25
Malicki v. Doe, 814 So.2d 347 (Fla. 2002) 31
McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) 29
Mize v. Jefferson City Bd. ofEduc., 93 F.3d 739 (11th Cir. 1996) 18, 19,24
Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988) 44
Rafferman v. Carnival Cruise Lines, Inc., 659 So.2d 1271
(Fla. 3rd DCA 1995) 42,43
Samples on behalf of Samplesv. City of Atlanta, 846 F.2d 1328,(11th CiT.1988) 22
VlU
Sogo v. Garcia's National Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993) 33
Spadafora v. Carlo, 569 So.2d 1329, 1331 (Fla. 2nd DCA 1990) 30
Stewart v. Happy Herman's CheshireBridge, Inc., 117F.3d 1278,(11th Cir. 1997) 19
T.W. Elec. Serv., Inc. v. Pacific Elec. ContractorsAssoc., 809 F.2d 626, 630(9th Cir. 1987) 18
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 10/56
u.s. v. Maxwell, 579 F.3d 1282 (11 th Cir. 2009) 21
Williams v. Davis, 974 So.2d 1052 (Fla. 2007) 29
Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067
(11th Cir. 2003)
Wyke v. Polk County School Bd., 129 F.3d 560 (11 th Cir. 1997)
32
32,42,44
Wood v. Camp, 284 So.2d 691, 695 (Fla.1973) 29,30
TABLE OF OTHER AUTHORITIES
Constitutional, Statute and Rule Provisions:
28 U.S.C. § 1291
28 U.S.C. § 1332
1
1
Rule 54, Fed.R. Civ. P 18
Rule 56 (c) Fed.R.Civ.P. 18,23
Rule 102 Fed.R.Evid. 32
Fla. Stat. § 768.1355 10
Florida Wrongful Death Act § 768.16 8
Fla. Stat. § 768.0170 (1) 30
Fla. Stat. § 790.17 40
Fla. Stat. § 825.102 32,41
ix
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 11/56
STATEMENT OF JURISDICTION
The matter before the lower court was a Complaint for Wrongful Death. The
District Court's jurisdiction was invoked pursuant to 28 U.S.C. § 1332, on the basis
of diversity of citizenship of the parties. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1291. This is a direct appeal as a matter of right from a
final Order of the District Court granting a Motion for Summary Judgment in favor
of Defendants, the Church of Scientology Flag Service Organization, Inc., Denise
Gentile, Gerald Gentile, and Thomas Brennan, which was filed in District COUl1as
case 8:09-cv-00264-SDM-EAJ.
The Order granting Defendant's Motion for Summary Judgment was entered
on December 6, 2011, which Order also directed the Clerk to close the case (Doc.
229). A Final Judgment was entered in favor of all Defendants on December 7,
2011 (Doc. 230). On December 29, 2009, the Plaintiff timely filed a Notice of
Appeal in this action (Doc. 236). This appeal is from a final judgment in favor of
Defendants. The Order granting Summary Judgment disposed of all claims with
respect to all parties.
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 12/56
STATEMENT OF THE ISSUES
I. Whether the District Court committed reversible error by granting Summary
Judgment on the basis of a variety of credibility determinations, and failing to
follow the doctrines applicable to summary judgment considerations?
II. Whether the District Court committed reversible error by making credibility
determinations and rejecting "plausible inferences" that should have been left to a
jury?
III. Whether the District Court committed reversible error by failing to find that
the Estate presented sufficient factual bases to support its allegations and avoid any
legitimate adverse Summary Judgment?
IV. Whether the District Court committed reversible error by failing to find that
the Defendants owed a duty of care to Kyle Brennan and that his damages and
injuries were certainly foreseeable?
2
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 13/56
STATEMENT OF THE CASE AND FACTS
In 2007, Kyle Thomas Brennan ("Kyle"), the son of Thomas Brennan and
Victoria Britton, was a 20 year old college sophomore. Even though his parents had
been divorced for many years and he had primarily resided with his Mother, Kyle
still maintained a relationship with his Father. Kyle had been under psychiatric care
for many years, and maintained a prescription for psychiatric drugs. Through
therapy and treatment, Kyle was able to stabilize his depression and schizophrenia
and was able to lead a happy and productive life.
Kyle had left his home in Charlottesville, Virginia on November 27, 2006,
and flew to Des Moines, Iowa, to look at colleges. Kyle took his community college
classes online as he traveled. Kyle also carried some substantial savings that he had
acquired for his travels. Not unlike his contemporaries, Kyle was adept at using a
laptop computer that he consistently carried with him. He traveled from Des Moines
to San Diego, CA, where he visited his father's two sisters, then flew to Hawaii,
upon the suggestion of his uncle. Kyle had some challenging moments as he
travelled the Country, staying with different relatives, in hotels and maintaining
sporadic communication with his Mother. In Hawaii, he was assaulted on February
5,2007, and a police report was taken.
3
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 14/56
Kyle then flew to Tampa on February 7 or 8, 2007, and then made the short
trip to Clearwater to visit his father, Thomas Brennan. Before his arrival he had told
his uncle, Gary Robinson, that he had been taking his medication consistently since
the assault on February 5, 2007, and would continue to do so until he returned home
to Virginia. Kyle had planned to return to Virginia after visiting his Father. Upon
arriving in Clearwater, Kyle was in possession of a bottle of his prescription anti-
depression medication, Lexapro, prescribed by his psychiatrist, Stephen McNamara,
M.D.
Kyle's Father, Thomas Brennan, had been a long time adherent to the beliefs
of Scientology. Neither Kyle, nor his Mother, Victoria Britton, were adherents to
the beliefs of Scientology, and both found these beliefs to be curious and repugnant.
One of the major tenets of Scientology is the belief that psychiatric treatment and
psychological counseling is a forbidden practice, and the existence and use of
psychiatric drugs is a forbidden and unacceptable human endeavor. No practicing
Scientologist can maintain a relationship with any individual undergoing psychiatric
treatment or consuming psychotropic drugs. Both psychiatry and the taking of
Thomas Brennan, a devout Scientologist, told his Scientology counselor,
psychotropic drugs are abhorrent to Scientologists.
Denise Gentile, that his son, Kyle, then visiting and residing with him, was in
possession of, and taking, the psychotropic medication prescribed by Kyle's
4
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 15/56
psychiatrist. Thereafter, the Defendants, Denise Gentile, Gerald Gentile, and
Thomas Brennan contacted Kyle Brennan's mother, Victoria L. Britton, in Virginia,
and vehemently attempted to persuade her to have Kyle Brennan placed into the
Scientology operated treatment facility known as ''Narconon,'' and had a
"Narconon" representative, soon thereafter, contact Victoria L. Britton in an attempt
to persuade her that the treatment therapy offered by "Narconon" would result in
facilitating Kyle's discontinuation of the dependence and use of Lexapro, and
provide an alternative to the need for any psychotropic medication.
Neither Ms. Britton nor Kyle were Scientologists and they both felt that the
serious nature of Kyle's psychiatric condition would not be aided or properly
treated through any Scientology practice. Therefore, both refused the treatment
offer of the Defendants. Furthermore, Victoria Britton emphatically told them to
make sure Kyle kept taking his prescribed medication, Lexapro, knowing that any
forced deprivation of this critical medication could have catastrophic psychiatric
results.
Following Scientology policy, after Thomas Brennan notified Denise Gentile
of his son's condition and presence in his home, Ms. Gentile then told this to a
Scientology "Ethics Officer," who then gave written instructions to Thomas
Brennan to remove his son from the apartment and "handle" the situation with his
son per Scientology "policy," even though Kyle was never a Scientologist. In
5
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 16/56
compliance with the commands from the Scientology Ethics Officer, Thomas
Brennan locked the prescription Lexapro in the trunk of his car and had his son
pack his bags and strip his bed of linens. Thomas Brennan then told Kyle's mother,
Victoria Britton in Charlottesville, Virginia, that Kyle had to move out
immediately. Within 24 hours, Kyle Brennan was found dead from a single shot
Itwas ultimately alleged that, on or about February 16,2007, for reasons yet
from a .357 magnum handgun that was left in an unsecured nightstand inside the
father's bedroom.
unknown to the Estate, one or more of the Defendants, knowing that Kyle Brennan
On February 13, 2009, The Estate of Kyle Thomas Brennan, by and through
was a disabled adult, negligently, recklessly, wantonly or willfully, callously, and
with total disregard for the rights and safety of Kyle Brennan failed to remove and
secure a loaded .357 Magnum handgun that was easily accessible to Kyle.
its Administrator, Victoria L. Britton, filed its Complaint against the Defendants
(Doc. 1), and it was alleged that Mr. Brennan "placed, or provided access to, a
loaded .357 Magnum pistol owned by THOMAS BRENNAN, on or next to the bed
of Kyle Brennan in the bedroom only occupied by Kyle Brennan in the apartment
of THOMAS BRENNAN." The Complaint further alleged that, "There, on or about
February 16, 2007, while in a mentally deteriorated state caused by the abrupt
denial of his prescription Lexapro, and with ready access to the loaded .357
6
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 17/56
Magnum, Kyle Brennan was found dead from a gunshot to his head from the .357
Magnum pistol with neither the pistol nor the bullets having any identifiable
fingerprints." (Doc. 1).
Kyle Brennan's psychiatrist, Dr. McNamara, has opined that the abrupt
removal of the antidepressant, coupled with Kyle's knowledge that he could not
gain access to this medication, had a deleterious effect on Kyle Brennan which
substantially precipitated his death, if it was a suicide. (Doc.l).
After investigation, Kyle's death was ruled a suicide by the Clearwater Police
Department, and no criminal charges were filed against Thomas Brennan, nor
against any of the Scientology "counselors" who had directed Thomas Brennan to
"handle" the situation with his son. (Doc. 1).
The nature of the cause of action alleged against the Defendants asserted that,
based upon Denise Gentile's "title, position, and agency with Defendant,
SCIENTOLOGY, Thomas Brennan obeyed and negligently, recklessly, wantonly or
willfully, callously, and with total disregard for the rights and safety of Kyle
Brennan, removed the Lexapro from his son's possession, without the knowledge
and consent of his adult son, Kyle Brennan, and locked the Lexapro in THOMAS
BRENNAN'S truck." (Doc. 1).
The Complaint further alleged that, "At all times material herein as alleged
above, the Defendants did not act as an ordinary reasonably prudent person would
7
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 18/56
have acted under the same or similar circumstances, and the death of Kyle Brennan
was caused by the wanton or willful misconduct on the part of the Defendants in the
performance of such duties. The Complaint specified that Kyle was survived by his
mother, Victoria Britton. The ESTATE brought the action to recover for her pain
and suffering, funeral expenses, and all other damages permitted by Florida' s
Wrongful Death Act, §768.16, et seq. (Doc. 1).
Subsequent to the filing of the Complaint, Denise and Gerald Gentile filed a
Motion to Dismiss the Complaint. (Doc. 11). Thomas Brennan could not be located
(Doc. 12), which predicated the issuance of an Alias Summons for Mr. Brennan,
in Florida, and his return of service was returned "unexecuted" on June 1, 2009.
also on June 1, 2009. (Doc. 13). This was followed shortly thereafter with an
additional Motion to Dismiss, "with prejudice," filed by the Church of Scientology
Flag Service organization ("FLAG"), on June 2, 2009. (Doc. 14). The Estate filed
its response in opposition to the Gentile motions on June 8, 2009. (Doc. 15), and
also filed a motion to strike the police report which was relied on by the Defendants
On June 12, 2009, still unable to secure service on Thomas Brennan, who
in an effort to obtain dismissal of the action. (Doc. 16). Thereafter, the Estate filed
its Response on Opposition to FLAG's Motion to Dismiss on June 12, 2009. (Doc.
19).
was believed to have been transported to another Scientology facility outside the
8
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 19/56
State of Florida, the Estate filed a Motion to extend time to serve Mr. Brennan
(Doc. 20), which was granted by the Court by an Order dated June 19, 2009. (Doc.
24). On June 24, 2009, the Court issued an Order denying the Defendants' Motions
to Dismiss, granting the Estate's Motion to strike the police report, and denying as
moot the remaining pending Motions. (Doc. 28).
Dominating this action throughout the vast majority of the District Court's
administration of this action was the effort made by FLAG and the other
Defendants to disqualify the Estate's attorney, Kennan Dandar, Esq., and his finn,
Dandar and Dandar, P.A., on the basis of alleged "agreements" restricting Dandar
and his finn from litigation involving Scientology, which purportedly stemmed
issues in the instant appeal, they will not be addressed in this Brief, but for the
from the resolution of another case participated in by Dandar against FLAG. This
dispute was the focal point of protracted litigation in the action before the District
Court, and was also the subject of a prior appellate proceeding before this Court,
wherein the Defendants appealed the District Court's denial of their Motions to
disqualify Dandar and his firm from representing the Estate. This Court reversed the
District Court. (See Mandate, Doc. 220). In that these matters are unrelated to the
inescapable fact that the voluminous Record reflects that these "unrelated" issues
and in recognition of the vast resources dedicated to this tangential dispute.
9
placed a shadow over the merits of the wrongful death action, both administratively
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 20/56
In any event, on July 7, 2009, yet another return of service was returned
unexecuted as to Thomas Brennan (Doc. 31), which predicated a P1urias Summons
for Mr. Brennan issued on July 9, 2009. (Doc. 35). Between these dates, on July 8,
2009, Defendant Denise Gentile filed her Answer and Affirmative Defenses (Doc.
32), as did Gerald Gentile (Doc. 33) and FLAG (Doc. 34). The gravamen of these
responsive pleadings was that, among numerous defenses, Kyle Brennan's "injury
and damages" were caused by his "sole negligence," and also that Kyle's "injury
and damages" were "proximately caused by the comparative fault of joint
tortfeasors ... Thomas Brennan, Victoria Britton, and Dr. Stephen McNamara ... "
Also alleged was the defense that Denise and Gerald Gentile were immune from
civil liability "for any acts [she/he] performed as a volunteer for the Church of
Scientology Flag Service Organization, Inc ... ," pursuant to Sec. 768.1355, Florida
FLAG raised similar defenses, and also asserted that the Estate assailed
Statutes.
Defendants because they" ... acted pursuant to their religious beliefs in discouraging
the use of psychotropic drugs such as Lexapro and improperly seeks to hold the
defendant church responsible for an unforeseeable and improbable intervening act
soundness of this religious belief." (See Doc. 34, p. 3).
10
of suicide." It was asserted that it would be improper for the District Court to,
" ... use its authority to assist in making inquiry into the validity, worthiness, and
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 21/56
On July 17, 2009, after extensive efforts to locate and serve Thomas Brennan
succeeded, a return of service was filed (Doc. 41), and Mr. Brennan filed his
Answer and Affirmative Defenses on December 7, 2009. (Doc. 53). The primary
defenses asserted were that Thomas Brennan enjoyed "parental immunity" for the
death of Kyle Brennan, and that, "The carelessness or comparative negligence of
Kyle Brennan was the sole cause or a contributing cause of his death." (See Doc.
53, pp. 2-3).
After extensive discovery and "other matters" alluded to above, the
Defendants filed their First Motion for Summary Judgment on September 8, 2009.
(Doc. 118). Included in support of the Defendants' Motion were the deposition of
Detective Stephen Bohling (Doc. 119), evidence reports and Dr. Kaplan's Report
On September 27, 2010, the Estate filed its Response in Opposition to the
(Doc. 120), and the depositions of Dr. Stephen McNamara (Doc. 121), Thomas
Brennan (Doc. 122), Officer Jonathan Yuen (Doc. 123), Gerald Gentile (Doc. 124),
Denise Gentile (Doc. 125), Assistant State Attorney Douglas Barry (Doc. 126),
Assistant Medical Examiner Noel Palma (Doc. 127), Richard Britton (Doc. 128),
Victoria Britton (Doc. 129), Barbara Mendez (Doc. 130), Rockwell Silva (Doc.
131), Eric Lawson (Doc. 132), and Susan Hannifan (Doc. 133).
Defendants' Motion for Summary Judgment. (Doc. 143). In conjunction, the Estate
filed: 1) the daily log of Victoria Britton, 2) the Declaration of Gary Robinson, 3),
11
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 22/56
Clearwater Police report excerpts, 4) Denise Gentile deposition excerpts, 5) Thomas
Brennan deposition excerpts, 6) List of Actions (a Scientology related document),
7) Gerald Gentile "Knowledge Report" (A Scientology related record), 8) the
Declaration of Sean Brennan, and 9) Stephen McNamara, M.D., deposition
excerpts.
Also filed in response in opposition to the Motion for Summary Judgment
was, on September 28, 2010, the second Declaration of Lance Marcor, a former
Scientologist, which Declaration included numerous Exhibits addressing the issues
explaining how Scientology doctrine dictated the concept of "handling" matters
inconsistent with Scientology beliefs and practices, including individuals under
psychiatric care, or prescribed psychotropic medications. (Doc. 149). This
an apartment shared by Kyle's Father, Thomas Brennan, was an enormous "flap,"
submission can not be overemphasized, and it sheds light on the incredibly insular
and cloistered practices of Scientology. Simply stated, Kyle Brennan's presence in
and a "potential trouble source." Allowing the presence of anyone undergoing
psychiatric treatment or taking psychotropic drugs was the equivalent of a "high
crime," and failure to "disconnect" and "handle" that person would have subjected
Thomas Brennan (and even his "Chaplain," Denise Gentile) to serious punishment.
Indeed, FLAG records show, unequivocally, that Thomas Brennan reported this
"potential trouble source" to Denise Gentile, and that Gerald Gentile was aware of
12
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 23/56
these issues and made records of their existence and purportedly authored a
"knowledge report," or "KR.!' (Doc. 149-19).
Simply stated, the overwhelming amount of documented FLAG evidence
devoted to the "flap" caused by Kyle's condition and connection to his Father,
coupled with the fact that, upon discovering his Son's dead body, Thomas Brennan
did not call 911, did not call any Ambulance or Doctor, did not call his current wife,
and did not call Kyle's mother, he called his Scientology Chaplain, because, in
Marcor's view, Brennan's position was, "my son is dead and I can't make a
decision on my own."
According to the extensive Declaration provided by Marcor, the tragedy
befalling Kyle was the result of a meticulous and unwavering set of practices,
of Scientology," with numerous entries around the time of Kyle Brennan's visit,
showing the involvement that Scientology has on individuals in controlling their
lives and implementing drastic and unorthodox mechanisms for "handling," through
whatever means necessary, the "high crime" of allowing the use of psychotropic
medication. (See Doc. 149). Additionally, the "Privilege Log," describing numerous
"private personal confidential communications made by Tom Brennan for the
purpose of seeking spiritual counsel under the established practices and procedures
adds to suspicion. (Doc. 149-1). Indeed, according to Marcor, the meticulous record
keeping that is an earmark of the Scientology religion leads him to conclude that
13
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 24/56
many required documents and reports are "missing." (See Doc. 149). Indeed, as
Marcor states, through reference to Scientology "commandments," "Psychotics
must not be accepted, but are to be gotten off the erg's lines. They have usually
been in the hands of psychiatrists and leave the organization open to failures." (Doc.
149-15). "A potential trouble source is defined as a person who while in
Scientology or a pc yet remains connected to a person or group that is a suppressive
person or group." (Doc. 149-16). Apparently manifesting this doctrine, Victoria
Britton was inundated with letters from the Church of Scientology proclaiming the
evils of psychiatry," after Kyle had visited his Father, Thomas Brennan, in Mayor
June of2006. (Doc. 149-18).
On September 29, 2010, the Estate filed a Motion to Supplement the
Response in Opposition to Defendants' Motion for Summary Judgment (Doc. 154),
which was followed the very next day with a Motion to Strike the Marcor
DecIaration and Exhibits. (Doc. 155).
On October 4, 2010, the District Court granted the Estate's Motion to
Supplement its Response in Opposition to the Motion for Summary Judgment, and
denied the Motion to Strike the Declaration of Lance Marcor, etc. (Doc. 160). On
October 11, 2010, the Estate filed a significant amount of material, including 1)
excerpts of Clearwater Police Report, 2) Declaration of Victoria Britton re: CVS, 3)
Dr. McNamara Deposition excerpts, 4) Thomas Brennan deposition excerpts,S)
14
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 25/56
Declaration of Scott Brennan, 6) Gerald Gentile deposition excerpts, 7) Officer
Jonathan Yuen deposition excerpts, 8) Denise Gentile deposition excerpts, 9)
Declaration of Mia Brennan, 10) Mendez deposition excerpts, 11) Declaration of
Victoria Britton re: Detective Bohling, and, 12) Declaration of Victoria Britton re:
Farrell.
At this point in time, the parties continued to prepare for the trial in this
action, and Defendants filed multiple Motions in Limine (Docs. 181, 183, 184, and
185), the parties filed a trial brief (Doc. 196), the Estate opposed the Motions in
Limine (Doc. 197), with Defendants filing proposed jury instructions (Doc. 198),
and proposed voir dire questions (Doc. 199). The Estate also filed proposed jury
instructions and a verdict form. (Doc. 200).
On November 8, 2010, the District Court issued an omnibus order (Doc. 212)
addressing multiple pending issues, granting the Defendants leave to file a reply to
the Estate's Response in Opposition, granting the Defendants' Motion to change the
reference to Defendant "Denise Miscavige Gentile" to "Denise Gentile," and
making that correction nunc pro tunc to February 13, 2009 (the date of filing the
original Complaint, obviating the need for the filing of any additional responsive
pleadings), and granting a Motion to Stay the trial in the matter, removing the
matter from the Court's trial calendar.
15
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 26/56
During this period of time, this Court administered the appeal of the issues
related to the efforts to have Mr. Dandar and Dandar and Dandar, P.A., disqualified
(USCA Number 10-14967-DD). On September 21,2011, this Court reversed and
remanded the District Court's order denying the Dandar Motion to Withdraw (Doc.
220), and the District Court issued an order granting the Motion and Dandar and his
firm were replaced by the undersigned Counsel, who entered his appearance as
Counsel for the Estate on October 3, 201. (Doc. 222). After an unsuccessful motion
to reopen discovery (Doc. 223), denied on November 23, 2011, (Doc. 225) and
other related matters, the District Court, on December 6, 2011, issued its Order
Granting the Defendants' Motion for Summary Judgment, directing the Clerk to
enter judgment for each Defendant and against Plaintiff, terminating any pending
SUMMARY OF THE ARGUMENT
motions and closing the case. (Doc. 229). On December 7, 2011, the District Court
entered final judgment in favor of Defendants (Doc. 230). After Defendants filed
renewed sanctions motions (Doc. 231), the Estate opposed the motions on
December 23, 2011 (Doc. 235), and thereafter filed their Notice of Appeal on
December 29,2011. (Doc. 236). On January 25,2012, the District Court denied the
renewed motion for sanctions (Doc. 238), and this appeal ensues.
The District Court, granted Summary Judgment on the basis of a variety of
credibility determinations, and an apparent rejection of the extensive exposition of
16
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 27/56
Scientology practices that should have been presented to show the foreseeability of
the tragic consequences of removing a person's medication. The District Court
erred by making credibility determinations and rejecting "plausible inferences" that
should have been left to a jury. Additionally, the District Court erred by failing to
find that the Estate presented sufficient factual bases to support its allegations and
avoid any legitimate adverse Summary Judgment. Finally, the District Court erred
by failing to find that the Defendants owed a duty of care to Kyle Brennan and that
reversed and the Court should require a trial on the merits.
his damages and injuries were certainly foreseeable, The Estate respectfully asserts
that the summary judgment issued in favor Defendants in this action should be
ARGUMENT AND CITATIONS OF AUTHORITY
I. Standard of Review
Review of Summary Judgment is de novo:
We review a district court's grant of summary judgment
de novo, applying the same legal standard used by the
district court: See Johnson v. Bd. of Regents, 263 F.3d
1234, 1242 (11 th Cir.200 I),
ll. The District Court Erred by Malting Credibility Determinations and
Rejecting "Plausible Inferences" That Should Have Been left to a Jury
Rule 56 of the Federal Rules of Civil Procedure states that summary judgment is
appropriate if the pleadings, the discovery and disclosure materials on file, and any
17
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 28/56
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c). The
showing of a genuine issue as to any material fact required by this Rule "to entitle a
party to proceed to trial is not required to be resolved conclusively in favor of the
party asserting its existence; rather, all that is required is that sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve
the parties' differing versions of the truth at trial.' T.W. Elec. Serv., Inc. v. Pacific
Elec. Contractors Assoc., 809 F.2d 626, 630 (9th
Cir. 1987) (adopted by Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739 (11 th Cir. 1996). At the summary judgment
Furthermore, at the summary judgment stage, the judge must view the
stage, the judge may not weigh conflicting evidence with respect to a disputed fact
or make credibility determinations with regard to the evidence presented, which are
exclusively within the role of the factfinder at trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Mize, 93 F.3d at 742; T.W. Elec., 809 F.2d at 630.
evidence in the light most favorable to the non-moving party (in this case
Appellant), assuming as true all the evidence of the non-movant and drawing all
reasonable inferences in favor of the non-movant, Anderson, 477 U.S. at 255. If
the non-movant produces direct evidence that conflicts with evidence produced by
the moving party, summary judgment mllst be denied. Mize, 93 F.3d at 742
C ' T w]here the non-movant presents direct evidence that, if believed by the jury,
18
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 29/56
would be sufficient to win at trial, summary judgment is not appropriate even where
the movant presents conflicting evidence,") (emphasis added); T,W Elec., 809
F.2d at 631 ("[p]ut another way, if a rational trier of fact might resolve the issue in
favor of the nonmoving party, summary judgment must be denied. ") (emphasis
added). Additionally, with respect to circumstantial evidence, all reasonable
inferences must be drawn in favor of the non-moving party, unless the evidence
relied upon by the non-moving party is "implausible." Canna v. Halifax Hasp.
Med. Center, unpublished, 2002 WL 32290997, *3 (11 th Cir. 2002); Mize, 93 F.3d
In granting the Motion for Summary Judgment, the District Court focused on
at 743.
a relatively one-sided view of the "disputed facts" of the instant action, and totally
failed to factor in the stringent adherence to Scientology "policies" that result in the
In the instant action, the District Court begins the recitation of its order
imposition of serious sanctions on any practicing Scientologist bold or independent
enough to depart from these unwavering policies. The standard of review relative to
Summary Judgment, is best articulated in the decisions in Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2458 (1986); and Stewart v. Happy Herman's Cheshire
Bridge, Inc., 117 F.3d 1278, 1285 (11 th Cir. 1997).
granting summary judgment by going through a description of the relevant
pleadings and, notably, explaining the delay of addressing the pending summary
19
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 30/56
judgment motion while the "disqualification" issues struggled toward resolution, as
an effort to avoid another of the, "lengthy, expensive, and strenuous series of
quarrels in this action." From a basic review of the Record in the action before the
District Court, it is clear that the vast majority of effort on the part of the parties
was directed to the "disqualification" issues.
The unique dominance of this internecine dispute, in what should have been
an action devoted solely to the evaluation of the wrongful death claims at issue,
contaminated the case beyond repair. Once the Mandate reversing the District
Court's controversial rejection of the multi-faceted efforts to "remove" the Estate's
chosen counsel, Ken Dandar, was returned by this Court (Doc. 220), almost an
entire year had passed since the parties' respective summary judgment arguments
were presented to the Court, and the combined distractions and delays caused by
this unprecedented "tangent" worked a disservice to the District Court and the
litigants.
Ignoring any speculation about the "rebound effect" caused by any
subconscious concern the District Court may have had resulting from the
benevolence first exhibited to Counsel for the Estate, suffice it to say that the
District Court improperly weighed the relevant evidence and invaded the province
of the jury by granting summary judgment. Whatever "inferences" might be drawn
2 0
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 31/56
from the evidence automatically requires the Court to determine the "credibility" of
the evidence in the record. This is not acceptable.
It is especially important to note that this Court has, not surprisingly,
commented on the concept of "credible evidence" in the context of summary
judgment issues. Credible evidence is defined as: "evidence that suffices under the
law." See CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th
Cir. 2003). The
most troubling aspect of the District Court's order granting summary judgment to
the Defendants is that it is rife with references to the difficulty of drawing
"inferences" from various disputed points of evidence. Notwithstanding the Estate's
resistance to accept the District Court's "interpretation" of this disputed evidence,
for the purposes of this appeal, it need only be emphasized that the credibility of
This Court has held, citing one of the key Summary Judgment cases,
evidence is a question of fact for the trier of fact: "credibility determinations are the
sole province of the jury." U.S. v.Maxwell, 579 F.3d 1282 (11 th Cir. 2009).
"Credibility determinations, the weighing of the
evidence, and the drawing of legitim ate inferellces from
the facts are jury fUllctions, not those of a judge,whether he is ruling on a motion for summary judgment
or for a directed verdict. The evidence of the nonmovant
is to be believed, and all justifiable inferences are to be
drawn in his favor. See Anderson, 477 U.S. at 255, 106
21
Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, (1986), that such action
is not the province of the trial court:
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 32/56
S.Ct. 2505." Allen v Board of Public Education for Bibb
County, 495 F.3d 1306 (l1t~ Cir. 2007) (emphasis
added).
In the instant action, the District Court simply concluded that the forced
removal of an important psychotropic medication, based on that lower court's
weighing of the evidence, would require too many "inferences" from the jury. As
will be shown in greater detail below, conflicting evidence was summarily
discounted (i.e, "disbelieved"), and important factual determinations, such as the
"foreseeability' of someone suffering from serious and known mental health
problems resorting to suicide when their medication was taken away, all show a
dramatic invasion of determinations that should have been left to a jury. The
22
summary judgment issued by the District Court demands reversal, and these
disputed issues should have been submitted to a jury.
In addition, Appellant would assert that any inferences from the evidence
must be made pursuant to the following:
"... a district court must consider all inferences drawn
from the underlying facts in the light most favorable to
the party opposing the motion and must resolve all
reasonable doubts against the moving party", Anderson,
477 U.S. at 255, 106 S.Ct. at 2513. Corbitt v. Home
Depot US.A., 573 FJd 1223 (11 th Cir. 2009)
See also, Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328,
1330 (11 th Cir. 1988). Summary judgment is appropriate only where there exists no
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 33/56
genuine issue of material fact and where as a matter of law, the movant can show
an entitlement to summary disposition beyond all reasonable doubt.
In the instant case, the District Court erred by weighing conflicting evidence,
making credibility determinations, and failing to view the evidence in the light most
favorable to Appellant at the summary judgment stage. Specifically, Appellant
produced direct evidence in the form of testimony from former Scientologists (Mr.
Marcor) showing the hugely critical nature of the existence of an individual both
receiving psychiatric treatment, as well as using (to any degree) psychotropic
medication. Additionally, Kyle Brennan's own physician opined that, regardless of
whether a psychotropic medication such as Lexapro was taken religiously according
to pharmaceutical schedules, the forced deprivation of access to this important
substance could, in and of itself, have triggered inexplicable and dire emotional and
mental consequences. This direct evidence, identified specifically below, in and of
itself, is sufficient to deny summary judgment to the Defendants. However, the
District Court weighed the conflicting anecdotal evidence presented by the
Defendants, made credibility determinations as to this evidence, and decided, for
itself, which "inferences" would be appropriate and which would not. This is a clear
derogation of the Rule 56 summary judgment standard set forth by the Federal
Rules of Civil Procedure, the body of U.S. Supreme Court precedent, and the case
law of this Circuit.
23
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 34/56
In addition to Appellants' direct evidence, if the District Court properly
reflected on the fact that, "the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor," there exists even more reason to
reverse the summary judgment in this case. See Anderson, 477 U.S. at 455
("[nJeither do we suggest that the trial courts should act other than with caution in
granting summary judgment or that the trial court may not deny summary judgment
in a case where there is reason to believe that the better course would be to proceed
to a full trial."). This Circuit recently articulated the application of the summary
judgment standard where there is conflicting evidence:
"Although the defendants present evidence that would
allow a jury to conclude that Felder is lying about every
claim, and Felder's evidence, which does not extend
beyond his own testimony, is weak, on a motion for
summary judgment, "[i]t is not the court's role to weigh
conflicting evidence or to make credibility
determinations", Mize v. Jefferson City Bd. of Educ., 93
F.3d 739,742 (lIth Cir.1996)." Felder v. Howerton, 240
Fed.Appx. 404, 406 (11 tit Cir. 2007).
24
As it relates to the arguments and evidence asserted by the Estate, by
weighing conflicting evidence, making credibility determinations, and failing to
view the evidence in the light most favorable to the Appellant Estate, the District
Court erred in granting summary judgment in favor of the County. Therefore, this
Court should reverse the District Court's ruling and remand this case for trial.
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 35/56
The concept of allowing parties to a controversy, even a unique and socially
explosive controversy, to be denied the due process of a full trial, should never
result in a judicially created justification of the denial of such due process. The
Federal Rules of Evidence are designed and shall be construed to "secure fairness in
administration, elimination of unjustifiable expense and delay, and promotion of
growth and development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined", Fed.R.Evid. 102.
It is a fundamental tenet of the American judicial system that all parties be
offered an equal opportunity to present evidence in support of their respective
positions; due process of law requires no less. Jones v. Caddo Parish School Bd.,
499 F.2d 914, 918 (5th
Cir. 1974) (emphasis added), This is particularly so where
there are "important constitutional lights at stake," which "demand a scrupulous
regard for due process considerations." Adams v. Baldwin County Bd. of Ed. Of
Baldwin County, Georgia, 628 F.2d 895, 897 (5th
Cir. 1980) (holding that in the
at stake, an evidentiary hearing was required to allow the court to enter findings
context of a plea in intervention, because there were important constitutional lights
based upon an adequate record). There can certainly be no greater constitutional
consideration than the sanctity of one's independent medical and psychological
treatment, which should have been respected without undue interference and
deprivation based on someone else's purported "religious beliefs."
25
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 36/56
Further, the interests of justice are best served when cases are decided on
their merits, which mandate "that both sides must have equal opportunity to present
evidence on their behalf and test the strength and credibility of the opposing party's
evidence", Amin v. Loyola Univ. Chicago, 2006 WL 3371446, *6 (W.D. Wis.
2006). This basic principle of law has also been applied in the context of
administrative proceedings of a judicial nature. See Hornsby v. Allen, 326 F.2d
605, 608 (5th Cir. 1964) (to be in conformity with fair practices of Anglo-Saxon
jurisprudence, parties must be allowed to present evidence to support their
contentions). The current deprivation of due process manifest in the grant of
summary judgment to the individuals charged with the duty to care for a disabled
adult, especially one whose disabilities were undeniably exacerbated by the forced
The complaint alleges that the individual Defendants were volunteers for
deprivation of much needed psychotropic medication, must be reversed.
III. The Estate Presented Sufficient Factual Bases to Support Its
Allegations and Avoid any Legitimate Adverse
Summary Judgment
Scientology and that Denise Gentile was a Chaplain to Thomas Brennan, based on
his multiple police interviews. It turns out that Denise Gentile is not a Chaplain, but
a student auditor, which is a closer relationship to the Defendant, Church of
Scientology, its Ethics Officer, and its Office of Special Affairs. The facts
26
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 37/56
elucidated were based on their admissions, deposition testimony, the evidence, and
Scientology policies proving: 1) The Defendants knew Kyle was mentally disabled
as early as May 2006; 2) Per policy, Denise Gentile reported to "FSO 1" (a
"superior") that Kyle was seeing a psychiatrist and taking a psychotropic drug,
which then caused the FLAG to engage and enforce its policies to order Thomas
Brennan to move his son out and "handle" him; and, 3) The FLAG orders to
"handle" Kyle Brennan resulted in the forced removal and deprivation of his
psychotropic medication and could have foreseeably led to his death. To understand
why and how this could happen it must first be noted that Scientology absolutely
loathes Psychiatry and psychotropic drugs, such as Lexapro, and maintains as one
of its primary tenets the elimination of Psychiatry. Second, Scientology written
policies must be followed or the Scientologist faces punishment. Lance Marcor, a
dedicated and highly trained Scientologist from 1978 to 2007, with most of his time
spent at FLAG in Clearwater Florida, explains how the policies were applied to the
individual Defendants to achieve the goal of "disconnection" to "handle" the
"PTS"2 situation caused by the presence of Kyle Brennan These quoted words have
very distinct meanings in Scientology terminology. (Doc. 149, Lance Marcor
Second Declaration). Further, as explained in Mr. Marcor's Declaration, there are
many records which have not been provided or produced, the existence and
preservation of which are absolutely mandated by Scientology policy. Those
27
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 38/56
records include the written communication between the "Office of Special Affairs,"
a/k/a OSA, and the Ethics Officer and/or Denise Gentile, which reports are
disclosed in the privilege log. However, the responses and reports from OSA, the
entity exerting ultimate control over the individuals involved in this matter, are
missing or are believed to have been withheld from discovery.
Thomas Brennan had a duty to his son, Kyle Brennan, as a mentally disabled
social guest while Kyle resided with him in his apartment from February 7 tol ti,
2007. That duty was not to expose Kyle Brennan to unreasonable risk and to use
reasonable care under the circumstances. All Defendants assumed a duty under
statutory and common law to use reasonable care under the circumstances when
they intervened and took control over the care and treatment of Kyle Brennan, a
mentally disabled adult. First, they took away his anti-depressant medicine,
accessible to Kyle. These two independent actions breached the duties they owed to
Lexapro. Second, they knew or should have known that Kyle should not be left
alone and that Tom Brennan had a loaded .357 revolver, with ammunition readily
Kyle Brennan, and it was foreseeable that such conduct would result in his death.
But for the reckless and intentional acts of these Defendants, all stemming from the
strict application of Scientology practices and doctrines, the death would not have
occurred. In this case, the Defendants acted not only with gross negligence and
reckless disregard of the rights and safety of Kyle Brennan, but also intentionally,
28
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 39/56
all of which resulted in death. An intentional act does not require proof of a duty.
Intentional acts simply require proof of an intentional act and legal causation.
Defendants' motion only addressed claims of negligence. This is not a sufficient
basis for a summary judgment.
IV. The District Court Erred by Failing to Find that the
Defendants Owed a Duty of Care to Kyle Brennan
In order to establish a claim of negligence, the Plaintiff must prove the
following:
1. The defendant owed a duty, or obligation, recognized by law, requiring the
defendants to conform to a certain standard of conduct, for the protection of others
against unreasonable risks;
2. The defendant failed to conform to that duty; and
3. There must be a reasonably close causal connection between the
nonconforming conduct and the resulting injury to the claimant, Williams v. Davis,
974 So.2d 1052 (Fla. 2007). Whether a duty of care exists is a question of law.
McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992). Whether there
has been a breach is a jury question. Contrary to what the District Court concluded,
there was a duty of care between Thomas Brennan and Kyle Brennan, beyond even
the relationship of father and son, that as Kyle being a social guest in the premises
of Thomas Brennan. This position is supported by Wood v. Camp, 284 So.2d 691,
29
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 40/56
695 (Fla.1973). In Wood, the Florida Supreme Court eliminated the distinction
between commercial (business or public) visitors and social guests upon the
premises. Both commercial and social invitees are entitled to a "single standard of
reasonable care under the circumstances." Wood, 284 So.2d at 695 (emphasis
supplied); Spadafora v. Carlo, 569 So.2d 1329, 1331 (Fla. 2nd DCA 1990). Florida
law explicitly creates "a duty of reasonable care to maintain the premises in a
reasonably safe condition for the safety of business invitees on the premises, which
includes reasonable efforts to keep the premises free from transitory foreign objects
1107-08 (Fla. 1st DCA 2006). \Vhether the "duty to maintain the premises has been
or substances that might foreseeably give rise to loss, injury, or damage." Fla. Stat.
§ 768.0710(1) .... The duty of reasonable care includes "a duty not only to react to
hazards of which it has notice but also to inspect to ensure conditions are safe or,
at the least, that hazards (unless open and obvious) are discovered and warned
against", Food Lion, LLC v. Monument/Julington Assoc. ua., 939 So.2d 1106,
breached is ordinarily a question for the jury to decide." Id. at 1108; see also Aaron
v. Palatka Mall, LLC, 908 So.2d 574, 578 (Fla. 5th DCA 2005) C'When an injured
party alleges that the owner or possessor breached the duty to keep the premises in a
reasonably safe condition, an issue of fact is generally raised as to whether the
condition was dangerous and whether the owner or possessor should have
anticipated that the dangerous condition would cause injury despite the fact it was
30
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 41/56
open and obvious"), Frede v. J cC . Penney C01P' l Inc., 2007 WL 2254513 (M.D.
Fla. 2007). Additionally, all Defendants had a duty to Kyle Brennan which arose
from the general facts of the case. Prior to interfering with the treatment of the
mental disability of Kyle Brennan, the Defendants, Denise Gentile, Gerald Gentile,
and FLAG had no duty to him. Once these Defendants interjected themselves into
deciding Kyle's medication access, the duty to act as a reasonable person, not a
reasonable Scientologist, arose under the common law and Florida Statutes. It then
becomes an issue of foreseeability as to whether injury can occur if an anti-
depressant is abruptly discontinued or withheld from a disabled adult. The
recklessness, gross negligence and willful conduct results in liability of FLAG
under Fla. Stat. §768.1355, the Volunteer Protection Act, since it is now known that
v. Doe, 814 So.2d 347 (Fla. 2002). The District Court erred in failing to reach this
the individual Defendants were volunteers acting under orders from FLAG
rendering the principal and its agents liable for the death of Kyle Brennan, Malicki
conclusion and in determining its decision by invading the province of the jury and
deciding what was or was not "foreseeable" under the unique fats of this case.
Apparent authority exists when the principal creates the appearance of an
agency relationship, Ja Dan, Inc. v. L-J Inc., 898 F.Supp. 894, 900 (S.D.Fla.l995).
The appearance of an agency relationship can be created when the principal
knowingly permits the agent to act as if the agent is authorized, or "by silently
31
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 42/56
acting in a manner which creates a reasonable appearance of an agent's authority,"
but cannot "arise from the subjective understanding of the person dealing with the
purported agent", Id. Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d
1067, 1077 -1078 (11th Cir. 2003). As a direct result of Denise Gentile informing
the FSG Ethics Officer that Kyle was under psychiatric care and on anti-
depressants, the Ethics Officer acts under written Scientology policies and gives
written orders to Thomas Brennan to "handle" his son. Having injected themselves
into this process, there existed a duty to use reasonable care in protecting Kyle
Brennan from reasonably foreseeable harm. "It is axiomatic that an action
undertaken for the benefit of another, even gratuitously, must be performed in
accordance with an obligation to exercise reasonable care." Barfield ex rei. Barfield
v. Langley, 432 So.2d 748 (Fla. 2d DCA 1983) (citing Banfield v. Addington, 104
Fla. 661, 140 So. 893 (1932)); see also Restatement (Second) of Torts § 323 (1965).
Horton v. Freeman, 917 So.2d 1064, 1066 -1067 (Fla. 4th DCA 2006).
In addition to the common law duty, there was also a duty under Fla. Stat
§825.I02, which makes it unlawful to:
• intentionally inflict physical or psychological injury upon a disabled adult; or
• perform any intentional act that could reasonably be expected to result in
physical or psychological injury to disabled adult; or
32
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 43/56
• to actively encourage any person to commit an act that results or could
reasonably be expected to result in physical or psychological injury to a disabled
adult. Thomas Brennan had the extra duty of not making a loaded gun accessible to
a person of unsound mind under Fla. Stat. § 790.17. The District Court should have
allowed the jury to decide if Defendants can have this same duty if the jury inferred
they had knowledge of the foreseeability of tragic consequences as a result of the
(foreseeability asks 'whether the harm that occurred was within the scope of danger
removal of a critical medication. The District Court erred by not finding that there
was foreseeability and no intervening cause to relieve the Defendants of liability,
Flight Training, Inc. v. Tropical, Inc., 2007 WL 5117263, 6 (S.D. Fla. 2007)
attributable to the defendant's negligent conduct.' " Id. (quoting Gibson v. Avis
Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993) (where the seller of gun to a person
Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla. 1980)); Sago v. Garcia's National
who later commits suicide is actionable even though the seller had no warning of
the suicidal thoughts of the buyer, but the seller violated the ordinance requiring
three day waiting period); and, Wyke v. Polk County School Bd., 129 F.3d 560
(llthCir. (Fla.) 1997) (where a need for counseling for anger problems and
behavioral problems observed by the defendants were enough to create an issue of
foreseeability to be decided by the trier of fact under Florida law). As seen in the
log below, depositions, and police interviews, Thomas Brennan admits he observed
33
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 44/56
problems with his son and he told "Denise Gentile, who then told the FSO Ethics
Officer. This information led to actions that directly interfered with Kyle's access to
his medication, and it was clearly foreseeable that adverse consequences would
result.
The summary judgment ignored the extensive evidence showing the
Defendants knew that Kyle Brennan was being treated by a psychiatrist, on an anti-
still alive, Victoria Britton kept a daily log in a journal which she then transferred to
depressant, in need of help, and therefore a disabled adult. While Kyle Brennan was
Clearwater Police by letter dated September 10, 2007. These logs are extremely
a computer. After Kyle's death, Victoria Britton submitted the log to the
revealing as to the knowledge of Tom Brennan, Gerald Gentile, Denise Gentile, and
Her daily logs show:
FLAG on the issue of when they knew Kyle Brennan was indeed a disabled adult.
February 7, 2007
Before flight to Tampa, (same day Kyle calls his uncle Gary):
• Tom said Kyle seemed fine mentally over the phone, but he was very tired.
• Tom is very busy with a class and it cost him a great deal of money
After arrival in Clearwater
February 8, 2007:
• Tom then said he was afraid to leave Kyle alone.
34
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 45/56
• Tom was afraid Kyle would hurt himself.
• Tom was afraid Kyle would commit suicide.
Februmy 9, 2007:
• Tom said Kyle is doing much better.
February 10 or 11, 2007:
• Tom calls and is very agitated and anxious. Hands the phone over to "his
friend Denise (Gentile)" to see how you (Victoria) can help Kyle for a serious
drug problem.
• Denise Gentile talks to Victoria about Narconon.
• Narconon calls Victoria and agrees they are not the place for Lexapro.
• Victoria calls Tom and tells him Narconon agreed it is not the right place
February 12 .2007:
(same day Denise Gentile performs Scientology "auditing" on Thomas Brennan).
• Tom complains Kyle is sleeping a lot.
February 14,2007:
• Tom is complaining that Kyle sleeps all day and is taking advantage of him.
• Tom says he wished he had driven Kyle back to Virginia the first day he
arrived.
• "The Church is putting a lot of pressure on him."
• Victoria tells Tom she will fly down there Tuesday or Wednesday.
35
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 46/56
February 15,2007:
(allegedly same day "list of actions" prepared by Ethics Officer)
• Tom calls to tell Victoria that Kyle must move out over the weekend.
• Victoria asks why Tom has been trying to rid himself of Kyle ever since Kyle
arrived.
The above log strongly suggests, if not clearly shows, that Thomas Brennan
Additionally, according to the Declaration of Gary Robinson, his Uncle, there
is certainly aware that his son is suicidal and sleeping a lot. The sleepiness is the
side effect of taking Lexapro. His "church" is putting a lot of pressure on him. At
this time, Victoria Britton does not know what type of pressure that is, or why the
church is exerting pressure, but she does know it is all related to Kyle. She certainly
does not know the church ordered Thomas Brennan to move his son out of the
apartment, because on February 15, 2007, Thomas Brennan tells her he must leave
because he has rented out Kyle's bedroom.
is plausible evidence that Kyle is taking his medication. From the above notes of
phone calls between the parents, Tom Brennan is complaining that Kyle is sleeping
all day. Combining these notes of the unusual sleep pattern with Kyle sounding just
fine over the phone but saying the Lexapro is making him tired, during phone calls
he had with his Uncle Gary Robinson and another with his father on February 7,
2007, these all point to strong evidence that Kyle is taking his Lexapro on a daily
36
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 47/56
basis as he promised his uncle he had been doing since the assault in Hawaii on
February 5, 2007. The District Court erroneously asserts the "sporadic"
consumption of the medication as a means to lessen the impact of the deprivation of
medication caused by the removal of that medication caused by the Defendants. At
the crime scene, Tom Brennan told the first responding police officer, Jonathan
Yuen, that Kyle had been suffering from depression for the last 6-7 months and was
on prescribed psychiatric medication, Lexapro 10mg (Doc. 170-1). This confirms
Victoria Britton's recollection that she told Tom Brennan in Mayor June 2006, that
Kyle was taking Lexapro and seeing a psychiatrist. (Doc. 170-2). Denise Gentile
states that when Kyle came to Clearwater on February 7, 2007, within a day or two
Tom had told her about Kyle being on psychiatric drugs and "Police" refers to the
official Clearwater Police Report, possibly seeing a psychiatrist (Doc. 170-8). A
170-1). This is evidence of their assumption of duty by interfering with the
week prior to the death, Tom Brennan and Denise Gentile agreed that on the topic
of Kyle Brennan: "something should be done, like, he should go somewhere", (Doc.
treatment of Kyle Brennan. It is clear that, at least a week before the death, Denise
Gentile and Tom Brennan knew of the Lexapro and psychiatric treatment and
determined "something" must be done. This triggers the requirement of reports to
the Ethics Office, which have not been produced. Once Denise Gentile has this
knowledge, she reports, as she must, to the Ethics Officer at FLAG. (Marcor
37
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 48/56
Declaration, Doc. 149). After Denise Gentile and Tom Brennan decide to take
action, Tom Brennan and Denise Gentile called Victoria Britton on February 10 or
11, 2007. Denise recommended a Scientology group known as Narconon, to help
get Kyle off his drugs. Victoria refused and demanded Tom promise he would
make sure Kyle kept taking his Lexapro. Tom told Victoria he would, but in his
deposition, he admitted that he lied to Victoria. (Doc. 170-4). Thomas Brennan
knew he had to get rid of the Lexapro under pressure from his church. (Doc-170-1).
In his deposition, when asked whether Denise Gentile was more than a friend to
him, Tom Brennan said she was just a friend, but a very good friend. When asked
if she was his Chaplain, he said no and also denied that he ever told Officer Yuen or
Det. Bohling that Denise was "Chaplain Denise." (Doc. 170-4). Yet Officer Yuen
and Det. Bohling say otherwise in their official report, where Tom Brennan told
them at least three times that Denise Gentile was his Chaplain. Therefore, based on
Tom Brennan's and Denise Gentile's admissions, they knew Kyle was suffering
from depression, they knew he should not be left alone; they knew he was being
treated by a psychiatrist, and therefore, they knew he was a disabled adult. Since
Tom Brennan tells Denise Gentile everything, it can be inferred that Gerald "Jerry"
Gentile knows everything that is going on since he is home from Friday through
Monday and Tom Brennan tells Det. Bohling that "Jerry" is his good friend. "Jerry"
is the first person who Tom Brennan called upon discovering his dead son and Jerry
38
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 49/56
was there when the police arrived. (Doc 170-1). Gerald Gentile argues he had no
involvement in this death, however he writes a "Knowledge Report," (KR), to
"OSA IntSHin Los Angeles, California, and copies the local OSA office. (Doc. 149-
19). Where are the "KR's" written by Tom Brennan and Denise Gentile before and
after Kyle Brennan's death? OSA has been involved with Tom Brennan since May
2006. (See privilege log, Doc. 1490-1). OSA is involved while "OSA Int." is
Office of Special Affairs International. Kyle Brennan is visiting his father. These
"KR's" or Ethics Officer reports and OSA responses are required. (Doc. 149). None
of the authorities relied on by the District Court contemplates such meticulous and
pervasive interference with the affairs of an individual on psychotropic medication.
Tom Brennan knew something was wrong with Kyle when he first arrived,
and knew that until the day he died. The Lexapro was locked in his car's trunk and
Tom Brennan told Officer Yuen that, on the day Kyle died, "he did not feel it was
beneficial to leave Kyle alone," but he did anyway. (Doc. 170-1). Brennan also told
Officer Yuen that Kyle was scheduled to leave on the following Monday, but, in his
deposition, he admitted that Kyle was not scheduled to leave. (Doc. 170-4). Tom
Brennan chose to leave a loaded .357 magnum revolver in his apartment with his
son, who he feared could not be left alone, and who he thought was suicidal, on his
first day in the apartment on February 8, 2007. This violates Fla. Stat. § 790.17,
since Kyle is a person of unsound mind, particularly after the Lexapro is taken away
3 9
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 50/56
and he has no access to it. Yet, Thomas Brennan chose to leave him alone, and this
was a total breach of duty to his son, a social guest, for not acting as a reasonable
person under the circumstances and increasing the risk of injury to his guest from a
condition of the premises: an accessible loaded gun. The Gentiles and FLAG state
they did not know Tom Brennan had a gun. The District Court placed great weight
on this fact, but, in that Denise Gentile started the process of getting the Lexapro
and Kyle "removed" by reporting the situation to FSO Ethics Officer per the
Thomas Brennan, in accordance with the dictates of Scientology, did not
privilege log and as explained by Lance Marcor, the conduct taken by these
individuals all leads to a foreseeable negative and tragic result, and they al should
have ensured that there were no "unsafe conditions" before removing such
necessary medication. All of the Defendants breached their duty to Kyle Brennan
by collectively engaging in actions to increase the likelihood of his demise: locking
up his Lexapro for reasons explained above, then ordering Kyle to move out and
ordering the father to "handle" his son, with the full knowledge that "handling"
meant anything to eliminate this "potential trouble source" from the Thomas
Brennan "Scientology Apartment."
believe in psychiatric medications because of his "religious beliefs." Kyle was not a
Scientologist. Kyle was not taking his medication because Tom "encouraged" Kyle
to stop taking the medication and took the prescription bottle from him
40
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 51/56
approximately 3 days before February 16, 2007 (Doc. 170-1). Yet in his deposition
he states Kyle gave it to him because he did not like it. (Doc 170-4). In his
deposition, Tom Brennan was not sure when he took the Lexapro away, saying it
was 2-3 days before his death. It is most likely this occurred February 15, 2007, the
day he was ordered by his Ethics Officer to "handle" his son. (Doc. 149). FLAG's
control even lasted beyond the date of Kyle's death, when OSA recommended to
Tom Brennan that he hire Paul Johnson, a lawyer who has represented FLAG for
many years. (Doc.170-4).
Consequently, all Defendants had a duty under Fla. Stat. §825.102, not to do
anything which would inflict physical or psychological injury upon Kyle, or
perform any intentional act that could reasonably be expected to result in physical
or psychological injury, or to actively encourage any person to commit an act that
results or could reasonably be expected to result in physical or psychological injury.
Likewise, Denise Gentile, sending Knowledge Reports to the Ethics Officer,
who is the "enforcer" of the policies of Scientology, who then actively orders Tom
Brennan to commit acts which resulted, or could reasonably be expected to result in
physical or psychological injury to Kyle, creates liability for a breach of duty. The
instruction to "handle" another, in Scientology parlance, is a tremendous order
requiring immediate action or the facing of more severe consequences. Thus,
because of Denise Gentile's multiple communications to the Ethics Officer (see the
41
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 52/56
privilege log) the Ethics Officer then involved FLAG into the ultimate outcome of
Scientology policy: "Disconnection" resulting in an unnecessary and preventable
death of a 20 year old adult who was not a Scientologist. Would a reasonable
person, whether it be a father, a good friend, an employer, a spiritual counsel
(known as an Auditor), and a church representative, the Ethics Officer, impose their
religious beliefs upon another and act superior to a medical doctor by abruptly
discontinuing a prescribed anti-depressant and substitute it with vitamins, in
addition to providing access to a loaded .357 magnum to a person who should not
be left alone? These questions should have been left in the province of a jury, but
the District Court, usurping the job of the jury, made credibility judgments and
substituted its judgment for that of a fact finder by granting summary judgment.
In Wyke v. Polk County School Bd., 129 F.3d 560 (lIth Cir. (Fla.) 1997),
where a 13 year-old committed suicide, the mother and grandmother with whom the
child resided thought that the child should receive counseling for anger problems
which they both observed. They knew he had behavioral problems. The court
found a jury could reasonably conclude that an ordinarily prudent person would
have foreseen that the child needed help and that their negligence was properly
submitted to the jury. The court cited Rafferman v. Carnival Cruise Lines, Inc., 659
So.2d 1271)273 (Fla. 3rd DCA 1995), which stated that, where there is evidence of
a serious medical problem, so as to put one on notice that a person required
42
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 53/56
protective precautions to ensure his safety, this knowledge exposes one to liability
for suicide.
There is ample evidence, or at least inferences from the evidence, which
preclude summary judgment in this matter. All Defendants were on notice of Kyle
Brennan's mental state, especially their concern that he should not be left alone.
It should have been a jury question as to whether or not the intentional and reckless
acts and/or the breach of duty were a legal cause of death. When Kyle Brennan was
seeing his psychiatrist, Stephen McNamara, M.D., Kyle did not exhibit suicidal
ideation. (Doc. 170-3). He had no eating disorder. He had no panic attacks, no
hallucinations, and no suicide potential. Kyle rated his depression 5-6 on a scale of
10. Nothing in his life was causing his symptoms. Kyle was taking his Lexapro,
which Dr. McNamara prescribed because it was fast acting and could get results in
days, not weeks, and it had a low side effect profile. Kyle described his mother,
Victoria, as a nice person, loving, and caring, a safe power, warm, reliable, and
consistent. His father was the complete opposite- angry, brittle, volatile, "always
blew up at me." Kyle was worried that he would become like his father. Dr.
McNamara concluded by stating that, within reasonable medical certainty, the
abrupt withholding of Lexapro would clearly be a precipitating cause of suicide.
The "steady state" of Lexapro is within 7 days. If Kyle had prior irregular use, it
does not matter. It is the daily use of Lexapro in February, 2007, and then its abrupt
43
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 54/56
withdrawal, which is the controlling factor. The half-life of Lexapro is 27 to 32
hours, i.e., a relatively rapidly metabolized drug. Usually within day one of the
missed dose or day two, the patient will experience all of those physical and
emotional symptoms, versus if the drug is tapered off. Kyle would have felt better
at the steady state. But once Kyle loses control of the Lexapro when it is locked up,
that can lead to very significant outcomes that would be deleterious. Kyle could
have taken one pill every 3-4 days and still feel the effect of the Lexapro. There is a
further effect on Kyle by his knowing that his father locked up the Lexapro and it is,
for the very first time, out of his control. The District Court apparently rejected all
of this testimony. The "medical certainty" opined by Dr. McNamara establishes the
evidence of legal cause. Legal cause of a suicide is a question for the jury. Wyke v.
Polk County School Bd., 129 F.3d 560 (11th Cir. 1997). The District Court stated,
"Not even a psychiatrist is charged with a duty to predict, and prevent injury
resulting from, 'an individual's propensity to do violence to himself or others.'
Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988)," and further found, "In
sum, Kyle's father's mere possession of a handgun and ammunition neither creates
a duty to prevent his adult son's unforeseeable suicide by use of the gun nor
establishes that his adult son's suicide is a foreseeable consequence of that mere
possession." It is respectfully asserted that the District Court erred by evaluating the
44
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 55/56
evidence and imposing its own credibility determinations, inferences and
conclusions in areas that should have been left to a jury.
CONCLUSION
The District Court erred by making credibility determinations and rejecting
"plausible inferences" that should have been left to a jury. Additionally, the District
Court erred by rejecting the extensive factual bases supporting its allegations and
erred by failing to find that the Defendants owed a duty of care to Kyle Brennan
and that his damages and injuries were certainly foreseeable and attributable to
these Defendants. The Estate respectfully asserts that the summary judgment issued
in favor Defendants in this action should be reversed and the Court should require a
trial on the merits.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the type-volume
limitation set forth in Federal Rule of Appellate Procedure 32(a)(7)(B). This Brief
contains approximately 11,771 words.
45
8/3/2019 Kyle Brennan Scientology Case - Appellants Corrected Initial Brief 16 Feb 2012
http://slidepdf.com/reader/full/kyle-brennan-scientology-case-appellants-corrected-initial-brief-16-feb-2012 56/56
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to Marie Tomassi, Esq, Trenam, Kemker, Scharf, Barkin,
Frye & Mullis, 200 Central Ave, Suite 1600, St. Petersburg, FL 33701, on this 16th
day of February, 2012.
Luke Lirot, Esquire
Florida Bar No. 714836
LUKE CHARLES LIROT, P.A.
2240 Belleair Road, Suite 190
Clearwater, Florida 33764
(727) 536-2100 Telephone
(727) 536-2110 Facsimile
Counsel for Appellant- The Estate of
Kyle Brennan