Thursday 1 March 2012

Brennan case goes to appeal

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.
[vii] “…without the knowledge or consent”: page 7 of the Appelant’s corrected initial brief.
[viii] Defendants’ Joint Motion for Summary Judgment: my thanks to Luke Lirot for providing a copy.
[xi] Posting as Tikk at Why We Protest, the nerve centre of Anonymous’ campaign against Scientology’s abuses. His blog is Reality based community.
[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.
[xiv] The US Court of Appeals, 11th Circuit, Case No. 10-14967. Estate of Kyle Thomas Brennan v Church of Scientology Flag Service Organization, Inc. D. C. Docket No. 8:09-cv-00264-SDM-EAJ. July 7, 2011 ruling (pages 17-18). While the appeal court expressed some sympathy with Judge Merryday’s objections to the sanctions imposed against Dandar it did not feel he had the power to block the ruling.
[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.
[xvii] From the fifth and final page of the order denying 231 motion for sanctions (op. cit.).

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