Kyle Brennan: Arguments on appeal

UPDATE: On September 19 the appeal court rejected plaintiff's application, affirming the district court's dismissal of the action. More details at the end of this piece.

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A lawyer for the mother of Kyle Brennan, a vulnerable 20-year-old who died while visiting his Scientologist father, will try today to persuade a Florida appeal court to reinstate their wrongful death lawsuit.

The lawsuit over the death of Kyle Brennan arrives at a federal appeal court in Florida later Friday (September 14), where lawyers on both sides will present their arguments to the judges.

Brennan died on or around February 16, 2007, while visiting his father, Thomas Brennan, a dedicated Scientologist, at his home in Clearwater, Florida.

He died from a single shot to the head from his father's .357 Magnum pistol. At issue is whether Scientology’s dogmatic hatred of psychiatry contributed to the death of the mentally troubled 20-year-old.

Targetted in the lawsuit are Kyle's father, Thomas Brennan, two other Scientologists and the Church of Scientology Flag Service Organization – the movement's Florida operation.

Representing Kyle Brennan's mother Victoria Britton at the Federal Court of Appeal in Jacksonville Florida will be attorney Luke Lirot.

But legal briefs already filed by both sides give an idea of the arguments they will advance in oral argument today.

Lirot will be trying to persuade the judges to overturn a district court ruling that dismissed the case last December. Scientology's attorneys will be arguing that the appeal court should follow the district court and throw out the lawsuit.

Both sides agree that in the days leading up to his death he had not been taking the medication his psychiatrist had prescribed him for his depression, Lexapro.

Where the two sides differ is whether it was Kyle Brennan's decision to stop taking the drug, as his father says; or whether Thomas Brennan's Scientology-inspired opposition to psychiatric drugs prompted him to confiscate his son's medication.

At the District Court in Tampa, Florida last December, Judge Steven D. Merryday dismissed the case. He took the view that the plaintiffs had nothing to counter Thomas Brennan's account.

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..., he wrote.

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.¹

But Lirot, in his appeal brief, argues that the judge over-reached himself: that these were issues that should have been put to a jury to decide.

He argues that there is more than enough evidence to show that Scientology's dogmatic opposition to psychiatric drugs was at the root of the tragedy.

Scientology's anti-psychiatry dogma and the rigid top-down ethics system that governs members' conduct were the keys to the case against the defendants, Lirot argued.

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 psychotropic drugs are abhorrent to Scientologists.²

Neither Kyle Brennan nor his mother were Scientologists, wrote Lirot. In fact, he added, they “...both found these beliefs to be curious and repugnant.”

But for Thomas Brennan, as a Scientologist, it would have been completely unacceptable that his son was taking a psychiatric drug to cope with his fragile mental condition, Lirot argued.

And as a Scientologist, he had no option but to report the matter to his superiors.

He argued that Brennan had turned to his spiritual counselor, Denise Gentile (née Miscavige; the twin sister of the movement's current leader David Miscavige); and Gentile informed a Scientology “Ethics Officer” whose job it is to enforce Scientology's values on its members.

Denise Gentile, her husband Gerald and Thomas Brennan are the three individuals targetted in the lawsuit.

Scientology 'handled' the Brennans

The ethics officer, wrote Lirot, gave written orders to Thomas Brennan to “to remove his son from the apartment and 'handle' the situation with his son per Scientology 'policy,' even though Kyle was never a Scientologist.”³

Lirot continued:

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.

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.⁴

In support of their case, the plaintiffs – now the appelants – drew upon the testimony of former Scientology insider Lance Marcor.

In his declaration Marcor set out how Scientology doctrine would have obliged Brennan to report the situation to his superiors – and how they would have reacted.

“This submission can not be overemphasized, and it sheds light on the incredibly insular

and cloistered practices of Scientology,” wrote Lirot.⁵

Simply stated, Kyle Brennan’s presence in an apartment shared by Kyle’s Father, Thomas Brennan, was an enormous “flap” 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.⁶

Internal Scientology documents from FLAG, Scientology's Florida operation, showed that Brennan had reported the situation to Denise Gentile, who had informed her husband, Lirot continued.

According to the extensive Declaration provided by Marcor, the tragedy befalling Kyle was the result of a meticulous and unwavering set of practices, 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.

Marcor also said that based on his knowledge of the Scientology procedures that had to be followed to handle such a “flap”, many key documents and reports were missing from the papers submitted to the court.⁷

The implication appears to be that these missing documents would have supported the case against Scientology.

Brennan 'was not taking his medication'

Scientology's lawyers, in their filing to the appeal court, paint a very different picture.

They portray Kyle Brennan as a troubled young man who even before he arrived in Clearwater to visit his father had not been taking his medication regularly – and may even have been contemplating suicide.

The case against their clients, they argued, “...is a mishmash of facts, fiction and self-serving conclusion...”.⁸

Kyle Brennan's parents, Victoria Britton and Thomas Brennan, were divorced and Kyle lived mainly with his mother and step-father in Charlottesville, Virginia.

In the months leading up to his death, he had left his home to go travelling, visiting Iowa, California, Hawaii and finally his father in Clearwater, Florida.

Scientology's brief quotes an affidavit from Kyle's paternal aunt, Cathleen Brennan, whom he visited in California about a month before his death.

She described him as as “dark and gloomy”, uncommunicative and alienated from both his parents.

Summarising her account, the brief states: “There was just a stream of hate coming from him … She wondered if he was travelling around saying goodbye to people … Kyle stated that he was not taking his medication because 'it was crap, he hated it and it did not help him'.”⁹

During his visit to California, Kyle Brennan was staying in the house of another one of his other paternal aunts, Caryl Farrell.

Farrell described her nephew as “depressed and paranoid” – and, the brief adds, he had also told her that he had stopped taking his medicine. ¹⁰

By February, Kyle Brennan's travels had taken him to Hawaii, where after he was the victim of an assault, he was interviewed by a police officer, Rockwell Silva.

“Officer Silva interviewed Kyle, found him to be reasonably lucid, and advised him that his family was worried about him,” Scientology's attorneys noted.

“Kyle told the officer that he was not taking his medicine as there was no need and that it was part of his problem,” they added.¹¹

Later the same month, after more than two months of travelling, Kyle Brennan arrived at his father's apartment in Clearwater.

Tom Brennan thought his son looked pretty bad when he arrived, the brief noted. “He had lost weight, did not look happy and was complaining about everybody.”

But on the crucial question regarding the drugs, Scientology's lawyers underlined Tom Brennan's account: he said it was Kyle who had handed him his drugs – that it had been his son's decision to stop taking them, not something that he had imposed on him.

“According to Tom, who is the only person who can testify about the conversation, Kyle handed him the bottle of Lexapro and explained 'I hate this shit. It makes me sick.'”¹²

During the nine days of his stay, Kyle Brennan seemed listless, spending a lot of his time at his father's apartment watching videos or on the computer.

His parents were both concerned, and discussed their son on the phone: but they did not agree on what to do to help him.

Victoria Britton rejected a suggestion that Kyle be admitted to Narconon, a drug treatment centre run along lines set out by Scientology's founder L. Ron Hubbard. She did not believe taking him off his medication was the solution.

On the day Kyle died, his father says he had tried to bring him around to thinking about his future, but his son appeared to interpret that as his wanting him to move on.

When he got back from work later that day, he found the door to his apartment barricaded from the inside. When he managed to gain entry, he found Kyle dead in his bedroom, having shot himself with his grandfather's police pistol – a family heirloom.

“Tom never told Kyle where the pistol was located in his apartment and Kyle only could have discovered it by an aggressive search of Tom's room,” Scientology's attorneys argue.¹³

The only role that the Gentiles played was as friends and advisers, the brief argues: they did not issue ultimatums or orders to Tom Brennan – nor is there any hard evidence in the legal complaint against the defendants to say otherwise.

Scientology's legal team also points out that the Clearwater Police investigation into Kyle Brennan's death concluded that it had been suicide and that they had filed no charges against anyone.

And they repeat the argument accepted by Judge Merryday in the district court: the plaintiffs simply have nothing solid to support their case against Scientology, or the individual Scientologists named in the lawsuit.

“[T]here is no evidence that the Church interfered in Kyle's healthcare...,” it states.¹⁴

“While Victoria, in her grief and her campaign to blame somebody for the events that befell her son, may suspect her ex-husband of wrongdoing, the Estate fails to produce record evidence of such and, therefore, the award of summary judgment should be affirmed.”¹⁵

Key disputed issues

For Lirot, representing Kyle's mother Victoria Britton, this account is a travesty.

In a second, reply brief submitted to the appeal court, he set out to rebut two key claims of Scientology's legal team.

He attacked the defence claim that Kyle Brennan had voluntarily parted with his medication.

And he also argued against the defence position that Kyle's infrequent use of Lexapro would have cancelled any negative effect his being deprived of the drug might have had.

Tom Brennan was now claiming that his son had voluntarily handed over his medication: but that did not tally with what he told police on the night of his son's death, Lirot argued.

He referred to the account given by Officer Jonathan Yuen of the Clearwater Police Department, who interviewed Thomas Brennan at the scene shortly after he had discovered his son's body.

Under deposition Officer Yuen said:

He said that his son was prescribed the prescription of Lexapro for his depression. However he stated his son was not taking the medication. Thomas also advised that he did not believe in psychiatric medications based on his belifes. And Kyle – he encouraged Kyle to stop taking the medications, and he advises that he took the prescription bottle from him about three days ago.¹⁶

There is no suggestion that this was a voluntary decision on the part of Kyle Brennan, Lirot argued.

Officer Yuen said during his deposition:

A: Basically he advised that he and Kyle had discussions about not taking the medication and trying to get off the medication and he decided to place it on the trunk of his car.

Q: Who decided?

A: Thomas did.¹⁷

Officer Yuen also said that Thomas Brennan had told him that Kyle only took his medication when he felt like it.

Why then, asked Lirot, would Kyle Brennan have voluntarily handed over pills which, by father's own account, he took when needed?

On the night of his son's death then, Thomas Brennan, had told police “that he did not believe in psychiatric medications because of his religious beliefs.”

Still quoting from the relevant police report, Lirot continued: "Thomas encouraged Kyle to stop taking the medications and took the prescription bottle from him approximately three days" before his son's death (Lirot's emphasis).¹⁸

All the effort the defence team put into establishing Kyle Brennan's deteriorating mental state prior to his arrival in Clearwater was neither here nor there if in the crucial final days he was deprived of the medication he needed, Lirot argued.

And to lock away his medication, but not something as lethal as a .357 Magnum, Lirot argued, “...is not something that can be disposed of nearly with a summary judgment...”.¹⁹

The second key question was whether or not there were any risks involved in taking Lexapro away from someone who had in any case not been taking it regularly.

Kyle Brennan's psychiatrist, Stephen McNamara, took the view that while irregular use of Lexapro was not ideal, it was acceptable.

But that did not mean that there were no risks of “a significantly adverse effect” if the user was suddenly deprived of the drug.

McNamara was quite clear on this point, noted Lirot: “The impact of the removal of even sporadically consumed medication could be devastating.”

And no matter that Scientology's expert witness took a different view: this was just the kind of disputed issue that should have gone before a jury.

It should not have been decided by the District Court, Lirot added.

Rush to judgment

Judge Merryday's ruling had ignored crucial facts in the case, Lirot argued.

It never properly addressed the implications of Scientology's dogmatic opposition to psychiatric drugs and the authoritarian nature of its ethics system governing members' behaviour.

And it had concluded that there was “no genuine issue of material fact” to put to a jury.

But the plaintiff's contention that Tom Brennan had confiscated his son's medication was was not groundless speculation. It was supported by Brennan's own initial statements to the police.

“His testimony is inconsistent, and the District Court, painfully, disregarded these inconsistencies....,” wrote Lirot.

“Under any analysis of the record in this case, the 'voluntariness' of the disuse of Lexapro is a disputed issue.”²⁰

Judge Merryday had also ruled that those targetted in the lawsuit had no duty of care to Kyle Brennan.

But Lirot argued: “Kyle's psychiatric ailments were known, the importance of his continual taking of Lexapro was communicated, and the results of this tragedy were forseeable.”(Lirot's emphasis)²¹

And if there was any dispute over the question of forseeability, well – that too should have been left for a jury to decide, he added.

Citing case law, Lirot argued: “A judge should only remove the question from the jury if there is 'a total absence of evidence to support an inference that the intervening cause was foreseeable.'”²²

That was not the case here, he wrote.

Scientology's legal team had cited a wealth of case law in defence of their clients, Lirot noted. But certain aspects of this affair made it unique.

For one thing, he argued “...none of these cases involved an 'International Church' with a well known and militant aversion to psychotropic drugs.”

For another, he argued: “Taking away important psychiatric medication and negligently leaving a handgun and easily available ammunition accessible to a person with known psychological problems creates an entirely different factual scenario.”²³

The plaintiffs did not dispute the right of Scientologists to their beliefs and their right to express their anti-psychiatry views, wrote Lirot.

But those beliefs could not be imposed on non-believers. And this, he argued, was exactly what had happened here, with tragic consequences.

“This is a case about negligent and invasive conduct, not religious freedom. The District Court erred by glossing over this huge fact.”²⁴

What they wanted then, was their day in court – and before a jury, not just a judge.

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UPDATE: On Wednesday September 19, less than a week after oral arguments had been heard, the court filed its response:

“After full review and oral argument, we conclude that... [Lirot] has demonstrated no reversible error in the district court’s order,”  said the court. Case dismissed.

Scientology spokeswoman Pat Harney told The Tampa Bay Times: “The ruling of the U. S. District Court in Tampa and the rapid affirmation of the 11th Circuit Court of Appeals in Atlanta both confirm what we have said from the beginning — the evidence is overwhelming that the Brennan lawsuit never had any factual or legal basis.”

Leaving aside the preliminary details identifying the case, the actual ruling ran to just five lines.

In a response to the ruling, Lirot expressed his frustration that the court had not troubled itself to explain where his arguments had fallen down.

“What an incredible disappointment!” he wrote.

“We will get no further explanation, no comment, and no articulation of where the arguments I made were inaccurate, insufficient, or wrong.

“I despise those situations where a Court rules against me, but does not articulate any basis to support their decision.

“It does not happen often, but this is clearly the worst example of that hollow practice.

“We can go to the Supreme Court, but that is the equivalent of a lottery ticket, since they take less than 3% of the petitions filed with them.

“A sad day for American justice, or the lack thereof.”

Whether Victoria Britton decides to take that lottery ticket remains to be seen. But according to messages posted by her supporters, we can expect a statement from her before long.

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For a narrative summary of the final weeks of Kyle Brennan's life – and an account of the tortuous litigation surrounding this case, see my first posting in this section: Appeal lodged in Brennan case.

Campaigner Justin Ross has launched his own website on this lawsuit, where you can find links to many of the key documents in the case.

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1 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.

2 From page 13 of Appellant's Corrected Initial Brief in 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).

3 That order comes from a heavily redacted Scientology document in the case files: a security check document. It instructs Thomas Brennan:

Get your son moved out and get him set up somewhere so that he can get handled.

“The situation required handling and Kyle was not gone, so the only inference is that the offending medication had to be...,” writes Lirot in his reply brief (page 25).

Former Scientologist Lance Marcor's testimony had established that directives from an ethics officer were orders, not advice: to disobey or disregard them would result in swift and severe sanctions.

4 Pages 14-15 of the Appellant's Corrected Initial Brief.

5 You can find the Second Declaration of Lance Marcor – and other key documents in this case – at the Scribd account of AnonLover.

6 Page 22 of the Appellant's Corrected Initial Brief.

7 Pages 22 to 23 of the Appellant's Corrected Initial Brief.

8 Page three of the Appellee's Joint Answer Brief: April 4, 2012. Scientology's legal team also offered a detailed account of how many refills Kyle Brennan had bought for his medication in the weeks leading up to his death in a bid to argue that even before he arrived at his father's apartment he had not been taking his medication regularly. Their account is vigorously disputed by the other side. Kyle could simply have bought refills and put the pills in his original bottle, thus confounding the defence's calculations, Lirot points out.

9 Page six of the Appellee's Joint Answer Brief.

10 Page seven of the Appellee's Joint Answer Brief.

On the other hand, Gary Robinson – the brother of Kyle's mother, Victoria Britton – said he had spoken to his nephew by phone in January, when he was visiting his aunts and again on February 7, on that occasion for two and a half hours.

Robinson's statement said: I asked Kyle if he was still taking his Lexapro. He told me that he was taking it every day since his assault in Hawaii on February 5, 2007. Declaration of Gary Robinson, submitted to the court.

In his statement Robinson also says: He realized that the Lexapro was helping him although it made him sleepy and he didn't feel like eating... He promised me he would continue to take them, he had enough saved up to make it home, and he would get a refill when he returned to Virginia.

We then talked about his future plans. He sounded very upbeat and eager to back home and school.

This contrasts starkly with the portrait of Kyle that his paternal aunts gave in their accounts.

11 Page seven of the Appellee's Joint Answer Brief.

12 Page nine, Appellee's Joint Answer Brief.

13 Page 13 of the Appellee's Joint Answer Brief.

14 Page 43 of the Appellee's Joint Answer Brief.

15 Page 44 of the Appellee's Joint Answer Brief.

16 Quoted on page three of Lirot's Reply Brief, but you can also find it on page 18 of Officer's Yuen's deposition posted at AnonLover's archive of key documents in the case. (See also pages 29-32 of the deposition).

Q. Did it appear to you that the father had taken control of the medicine?...

A. Yes.

17 From page four of Lirot's Reply Brief; page 32 of Officer's Yuen's deposition

18 From page 11 of Lirot's Reply Brief; page 11 of the Clearwater Police Department Report (2007-3872 Suicide).

19 From page 13 of Lirot's Reply Brief.

20 Pages 15-16 of Lirot's Reply Brief.

21 Page 22 of Lirot's Reply Brief.

22 Citing Overby v. Willie, 411 So. 2d 1331, 1332 (Fla. 4th DCA 1982). Page 23 of Lirot's Reply Brief.

23 Page 23-24 of Lirot's Reply Brief.

24 From page 28 of Lirot's Reply Brief.

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.

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See also Kyle Brennan: arguments on appeal

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[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, 11^th 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.

[ii] Page 28 of the Appelant’s corrected initial brief.

[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.

[iv] District Court summary judgment, op. cit.

[v] District Court summary judgment, op. cit.

[vi] Pages 16-17 of the Appelant’s corrected initial brief.

[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.

[ix] Pages 23-24 of Appelant’s corrected initial brief.

[x] District Court summary judgment, op. cit.

[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.).