Did Scientology’s dogmatic hatred of psychiatry contribute
to the death of a vulnerable, 20-year-old? That is the central question in a lawsuit filed to the
Florida appeal court last month.
Five years after the death
of a mentally troubled 20-year-old student while visiting his Scientologist
father, a wrongful death lawsuit brought by his mother is back in court.
Kyle Brennan was found
dead, shot in the head with a bullet from his father’s 357 Magnum pistol. He
died at his father’s apartment in Clearwater Florida, on or around February 16, 2007.
On February 16 this year,
Florida attorney Luke Lirot filed the latest papers on behalf of Kyle’s mother
Victoria Britton.
He was appealing a district
court’s dismissal of the lawsuit against Thomas Brennan – Kyle’s Scientologist
father – two other Scientologists and the Scientology’s Florida operation.
At issue is whether
Scientology’s dogmatic hatred of psychiatry and psychiatric drugs led to Kyle
being deprived of medication vital to his mental and emotional stability – but
also whether the judge had the right to throw out the case without letting a
jury consider the evidence.
Lirot has come late to the
case and, as he makes clear in his appeal filing, by the time he arrived it had
already acquired the procedural stigmata associated with Scientology-related
litigation.
He replaced colleague Ken
Dandar, best known for having represented the estate of Lisa McPherson in a
successful lawsuit against Scientology.
Dandar was forced to quit
the lawsuit after objections by Scientology, a drawn-out battle that involved a
dispute between two judges, one of whom fined Dandar and threatened to slap
criminal contempt charges on him.
Six months after Dandar
left the case – and Lirot took over –District Court Judge Steven D. Merryday
made his ruling last December dismissing the lawsuit.
A month later, as he threw
out a Scientology motion for sanctions against Dandar, the same judge had harsh
words for both sides in the dispute.
But the basic facts of the
case – as set out by Lirot in his appeal filing – are as follows.[i]
Kyle Brennan’s death
In 2007, Kyle was 20 years
old, in his second year at a community college. His parents, Victoria Britton
and Thomas Brennan, were divorced and Kyle lived mainly with his mother in
Charlottesville, Virginia.
In the weeks leading up to
his death, Kyle had been travelling in Iowa, California and Hawaii.
It was in Hawaii that he
ran into trouble, getting assaulted on February 5, 2007, an incident that was
the subject of a police report. Shortly afterwards he flew on to visit his
father, Thomas Brennan, in Clearwater, Florida.
Kyle’s father is a devoted
Scientologist, and Clearwater is one of the main centres for Scientology in the
United States. The movement promotes it as somewhere loyal members can received
top-level auditing, or therapy, from the movement’s best-trained practitioners.
Kyle had mental health
problems. His psychiatrist Stephen McNamara, who had treated him for depression, had prescribed him the psychiatric drug Lexapro to help him
manage his condition.
Before arriving in
Clearwater, Kyle had told his uncle, Gary Robinson, that he had been taking his
medication regularly and would continue to do so.
But that posed a problem
for Thomas Brennan, Lirot argued.
Scientology reviles
psychiatrists and psychologists as virtually the root of all evil. Their
rejection of psychiatric drugs is just as vehement.
That meant that Thomas
Brennan had what the movement refers to as an ethics, or disciplinary, issue to
resolve – for no Scientologist in good standing is meant to associate with
anyone receiving psychiatric treatment or taking psychiatric drugs.
Brennan reported his son’s
visit to his counsellor Denise Gentile. (Gentile, née Miscavige, is the twin
sister of Scientology’s leader David Miscavige.)
Denise Gentile phoned Kyle’s mother, Victoria Britton, in Virginia and tried to
persuade her to have Kyle put into a Narconon programme.
Narconon is a
drug-treatment programme run along principles established by Scientology
founder L. Ron Hubbard.
A Narconon representative
also contacted her and offered their services, said
Lirot.
Victoria Britton made it quite clear she did not want Kyle coming
off Lexapro as she knew that this could have a catastrophic effect on his
mental health.
Gentile had by now informed
a Scientology “ethics officer”, whose job it was to ensure that Thomas Brennan
followed the movement’s rules, of the situation. This officer gave written
instructions to Brennan to get his son out of his apartment.
"In 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,” wrote Lirot in his appeal brief.
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 from a .357 Magnum handgun that was
left in an unsecured nightstand inside the father’s bedroom.”
Lirot argued:
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 to 16, 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
antidepressant medicine, Lexapro. Second, they knew or should have known that
Kyle should not be left alone and that Tom Brennan had a loaded 357 revolver
accessible to Kyle.
These two independent
actions breached the duties they owed to Kyle Brennan resulting in his death,
so that it can be said, but for the reckless and intentional acts of these
Defendants, the death would not have occurred.[ii]
In summary then, the
lawsuit brought by Britton, Kyle’s mother, contends that the actions of Thomas
Brennan – and the Scientologists who issued the orders he followed – brought
about her son’s death.
It argues that Kyle was not
only denied access to the drug he needed to maintain his mental stability, but
a lethal weapon was left unsecured in the apartment where he was staying.
But a district court in
Tampa, Florida, dismissed the case last December.
The district court’s
dismissal
After summarizing the case
set out by Britton, District Judge Steven D. Merryday, in his ruling, listed
five points advanced by Scientology’s lawyers in defence of their clients.
In a joint defence for
Thomas Brennan, the Gentiles and Church of Scientology Flag Service
Organization, lawyers had argued that the plaintiff had no evidence to show or
suggest that:
·
Kyle was consuming the
Lexapro on a consistent basis necessary to obtain a therapeutic benefit;
·
The Lexapro was removed
without Kyle’s permission;
·
Any defendant encouraged or
assisted Kyle in committing suicide;
·
Any defendant gave him
access to a loaded gun;
·
Kyle committed suicide for
any reason other than his depression and paranoia.[iii]
Judge Merryday agreed,
writing:
“The plaintiff's claim of Scientology's complicity
in, and responsibility for, Kyle's death remains a mere hypothesis that is
without essential support based upon reasoned and direct inference from the
available evidence.”[iv]
Summing up his findings, he
wrote:
Kyle Brennan was an
attractive and bright but troubled young man, who died violently, by his own
hand, and alone, barricaded in his father's apartment.
Plagued by emotional
turbulence and mental instability, Kyle's brief life, especially the last year
of his life, was tangled and traumatic both for Kyle and for his family and
close friends.
Kyle's mother seeks by this
action to establish that the organization, principles, and operatives of
Scientology are responsible — in fact and in law — for the death of her son.
A practitioner of modern
psychiatry treated Kyle for his psychological afflictions and prescribed a
course of psychotropic medication. Modern psychiatry and psychotropic
medication are anathema to Scientology. Kyle's father was an incipient practitioner
of Scientology.
The fragile Kyle with his
psychotropic medication, Kyle's father with his Scientology, and Scientology
with its opposition to psychotropic medication approached one another in close
proximity during the time of Kyle's suicide.
The plaintiff looks upon
the proximity of Scientology to the death of her son and sees a causal link,
sees the one brought about by the other.
After painstaking review, I conclude that the plaintiff's
suspicion, although perhaps not impossible, is not anywhere evidenced in the
record creates no genuine issue of material fact for reasoned determination by
a jury. [v]
Conflicting accounts
But Lirot, in his appeal
filing, argued that this was not Merryday’s call to make.
The District Court erred by making credibility
determinations and rejecting “plausible inferences” that should have been left
to a jury.[vi]
Among the facts in dispute
are just what role the Gentiles played in the days running up to Kyle Brennan’s
death.
Lirot’s appeal filing
argued that under the influence of the higher-ranking Denise Gentile, Thomas
Brennan had removed the Lexapro from his son’s possession, “without the
knowledge and consent of his adult son” locking the drug in his truck.[vii]
Scientology, in a joint
motion from all the defendants for summary judgment, looked at how often Kyle
had been buying refills for his Lexapro: from that, it argued that he had
clearly not been taking the drug on a regular basis, as prescribed – a claim
disputed by Dandar.
Denise Gentile had
suggested Narconon for Kyle because she feared he might be using illicit
“street drugs”, the defence argued: neither she nor her husband had given any
advice to Tom Brennan about Kyle’s use of Lexapro, it added.
Nor did the Gentiles tell
Tom Brennan to take away his son’s medication, the defence added.
The defence also cited
Thomas Brennan’s version of events: that Kyle had told him he hated using the
drug and had handed it over to him of his own accord.[viii]
To help convince the court
that Scientology would inevitably have micro-managed Thomas Brennan’s reaction
to his son’s visit, Ken Dandar had submitted expert testimony from former
Scientologist Lance Marcor.
Marcor had argued that
Scientology’s doctrine on psychiatry and psychiatric drugs would have
determined how Thomas Brennan responded to Kyle’s visit.
He also argued that his
knowledge of Scientology’s extensive record-keeping told him that key documents
that should have been submitted to the court were missing, lending support to
the plaintiff’s contention that Scientology was engaged in a cover-up.[ix]
In the end however, Judge
Merryday ruled that the plaintiff had no solid evidence with which to overturn
the defendants’ account.
“The record, including the proffered expert
testimony, offers nothing on which to create a rationally triable issue one way
or the other; the plaintiff's proposed history is merely possible but no more
possible than several other possible histories, each of which exculpates
Scientology and the other defendants,” the judge wrote. [x]
It was only to be expected
that the accounts given by the opposing sides would differ in crucial respects.
But Lirot is suggesting
that Judge Merryday overstepped the mark when he decided that the plaintiff
could not muster enough evidence to stand up its case against Scientology.
Attorney Scott Pilutik, who
has covered other Scientology-related lawsuits on his blog Reality Based
Community, summed up Lirot’s objection this way:
"The essence of Lirot's argument is that Judge
Merryday wrongly usurped the jury's role in deciding matters of fact at the
summary judgment stage; a judge may only decide matters of law in a motion for
summary judgment, and Merryday exceeded his authority at this stage by deciding
matters of witness credibility and rejecting the jury's role in plausibly
inferring the defendants' liability from the evidence presented."[xi]
A procedural marathon
Luke Lirot came to this
case late, after the original attorney Ken Dandar was forced to withdraw.
Dandar of course is best
known as the attorney who fought the lawsuit for the estate of Lisa McPherson,
the 36-year-old Scientologist who in 1995 died in the custody of her fellow
believers in Florida.
That case was finally
settled out of court for an undisclosed sum in 2004 after a gruelling legal
marathon.
Lirot only took on the
Brennan case because of the lengthy campaign by Scientology to have Dandar
kicked off it.
Dandar had filed the case
on behalf of Victoria Britton in February 13, 2009: two years after Kyle
Brennan’s death.
Scientology objected that
as part of the settlement in the McPherson case, Dandar had agreed to take no
part in any further litigation against Scientology. Dandar denied that there
had been any such undertaking.
Unfortunately for him
Senior Circuit Judge Robert Beach, who had presided over the McPherson case
action, accepted Scientology’s argument. On June 10, 2009, Judge Beach ordered
him off the case.
Dandar appealed to the
Florida District Appeal Court and when that bid failed, Scientology moved to
get Judge Beach’s ruling enforced.
By April 12, 2010, the
judge had found Dandar in civil contempt.[xii]
He ordered Dandar to pay Scientology $50,000 in damages, with another $1,000 a
day in civil penalties against him as long as he refused to comply with the
ruling to quit the case.
So Dandar presented an involuntary
motion to withdraw as counsel to the District Court Judge Merryday. His client,
Victoria Britton, argued that Dandar would be nigh-on impossible to replace
given attorneys’ reluctance to take on Scientology in the courts.
On April 22, District Judge
Steven Merryday accepted that argument, denying the motion to withdraw.
But that left Dandar caught
between a rock and a hard place: for by now Judge Beach was thinking in terms
criminal contempt.[xiii]
In October 2010 Judge
Merryday stopped the sanctions against Dandar and slapped Judge Beach on the
wrist for overstepping the mark. Judge Beach withdrew from the case.
But Scientology appealed
Judge Merryday’s ruling – and the appeal court agreed that it was Judge
Merryday who had overreached himself.
The appeal court wrote in
its July 7, 2011 ruling:
The District Court’s concern about the ability of
the Brennan Estate to secure other counsel was certainly understandable and
commendable… The Court was not responsible for securing representation for the
parties before it, however, and its jurisdiction to adjudicate the claim of the
Brennan Estate was not dependent on its doing so.[xiv]
It
overturned Judge Merryday’s ruling, which effectively confirmed that Dandar was
off the case – though by this time he had handed over to Lirot.
After Judge Merryday threw
out the case at the end of last year, Scientology renewed a bid to have
sanctions applied against Dandar. They wanted him punished under Rule 11, which
penalises lawyers who bring lawsuits that have no factual or legal basis.[xv]
The judge made it clear his
patience had run out.
First, he pointed out that
they had not given Dandar the legally required 21-day notice which would give
him the opportunity to correct any alleged fault if he so required. And since
he was no longer on the case he no longer had any power to remedy the
situation.
But in any case, their
first motion for sanctions had been rejected because it had no merit, he added.
And while may have been clear
about what he saw as the weaknesses of the plaintiff’s case against
Scientology, he had not concluded that it was baseless, the judge wrote.
The order granting summary judgment notes the
pleading’s flaws, and Scientology is at pains to repeat the order’s critiques
to the court. But, although the plaintiff’s case was built predominantly on
compound inference and speculation, the plaintiff’s allegations, with one
possible exception, were not so wholly and demonstrably baseless as to trigger
Rule 11.[xvi]
Judge Merryday had clearly
had his fill of the case and all the subsidiary litigation it had spawned.
This litigation, along with simultaneous and
associated litigation in the state courts (described in excruciating detail
elsewhere in this record), is the sort of “scorched earth” litigation that
impairs and adulterates the better judgment and professionalism of counsel,
involves the courts in tangled and exhausting disputes tangential to the main
dispute, and causes a marked decline in the public’s confidence in the bench
and the bar. The parties and their counsel should direct themselves to the
necessary matters at hand and reject the temptation toward further provocation
and retaliation, pursued either in over-zealous excess or as a tawdry
litigation tactic designed as a general deterrent. Without reason to hope the
parties and counsel will heed my advice but with knowledge that sanctions
aplenty (and more) have attached elsewhere, I add nothing further to the sad
folly of these parties’ aggravated relations.[xvii]
In other words: a plague on
both your houses.
[i] The following account is from the Appelant’s
corrected initial brief for The Estate of Kyle Brennan v. the Church of
Scientology Flag Service Organization Inc., et al, Case no: 12-10024-AA, filed
to the U.S. Court of Appeals, 11th Circuit on February 16, 2012. The
bare bones of the case are set out between pages 3-6 of Lirot’s filing: the
first four pages of the Statement of the Case and Facts.
[iii] Estate of Brennan v. Church of Scientology
Flag Service Organization, Inc.; Denise Gentile; Gerald Gentile; and Thomas
Brennan. December 6, 2011, Tampa, Florida, District
Court summary judgment, Case No. 8:09-cv-264-T-23EAJ.
[viii] Defendants’ Joint Motion for
Summary Judgment: my thanks to Luke Lirot for providing a copy.
[xii] On February 19, 2010, Judge Beach
rejected a move by Dandar to get the terms of the McPherson settlement
agreement voided.
[xiii] According to one local media
report, at one “inexplicably” closed hearing the judge had also threatened to
revoke Dandar’s law license “something he has no power to do”. See “In
Court with Scientology” an opinion piece in the Tampa Tribune,
September 21, 2010.
[xiii]Federal
Rule of Civil Procedure 11 provides that a district court may sanction
attorneys or parties who submit pleadings for an improper purpose or that
contain frivolous arguments or arguments that have no evidentiary support.” From
the Lectric Law Library.
[xvi] Page 4 of Judge Steven D.
Merryday’s order
denying 231 motion for sanctions, issued January 25, 2012. The ruling is
also available here.
In a
footnote to his ruling dismissing the lawsuit the previous month, Judge
Merryday was scathing about one passage from the plaintiff’s original filing.
It read: [O]n or about February 16, 2007, for reasons yet unknown to the
[plaintiff], one or more of the defendants, knowing that Kyle Brennan was a
disabled adult, negligently, recklessly, wantonly or wilfully, callously, and
with total disregard for the rights and safety of Kyle 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.
“Excepting
that Kyle's father owned a gun,” Judge Merryday noted, “no fact alleged in this
paragraph appears in the record in this action. The allegation at least
approaches sanctionable recklessness in pleading.” From District
Court summary judgment, op. cit.
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