IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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

On Appeal from the United States District Court

Middle District of Florida

Tampa Division

Lower Tribunal Case No.:

8:09-cv-00264-SDM-EAJ

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 of

Kyle Brennan

APPELLANT’ 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.

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.

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

Appellants hereby certify 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

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.

TABLE OF CONTENTS

Certificate of Interested Persons ii

Statement Regarding Oral Argument iv

Table of Contents v

Table of Authorities vi

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

I. 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 Brennan 29

V. Conclusion 45

Certificate of Compliance 45

Certificate of Service 46

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 rel. 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,

(11th Cir. 2002) 19

Corbitt v. Home Depot U.S.A., 573 F.3d 1223 (11th Cir. 2009) 22

Felder v. Howerton, 240 Fed.Appx. 404, (11th Cir. 2007) 24

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

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

Cir.2001) 17

Jones v. Caddo Parish School Bd., 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. of Educ., 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 Samples v. City of Atlanta, 846 F.2d 1328,

(11th

Cir. 1988) 22

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 Cheshire Bridge, Inc., 117 F.3d 1278,

(11th Cir. 1997) 19

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630

(9th

Cir. 1987) 18

U.S. v. Maxwell, 579 F.3d 1282 (11th 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) 32

Wyke v. Polk County School Bd., 129 F.3d 560 (11th Cir. 1997) 32, 42, 44

Wood v. Camp, 284 So.2d 691, 695 (Fla.1973) 29, 30

TABLE OF OTHER AUTHORITIES

Constitutional, Statute and Rule Provisions:

Constitution of the United States, Article III 2

28 U.S.C. § 1291 1

28 U.S.C. § 1332 1

Rule 54, Fed.R. Civ. P 18

Rule 56 (c) Fed.R.Civ.P. 18, 23

Rule 102 Fed.R.Evid. 32

Florida Wrongful Death Act § 768.16 8

Fla. Stat. § 768.0170 (1) 30

Fla. Stat. § 768.1355 10

Fla. Stat. § 790.17 40

Fla. Stat. § 825.102 32, 41

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 Court as

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.

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?

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.

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

psychotropic drugs are abhorrent to Scientologists.

Thomas Brennan, a devout Scientologist, told his Scientology counselor,

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

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

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.

It was ultimately alleged that, on or about February 16, 2007, for reasons yet

unknown to the Estate, one or more of the Defendants, knowing that Kyle Brennan

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.

On February 13, 2009, The Estate of Kyle Thomas Brennan, by and through

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

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.1).

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

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

in Florida, and his return of service was returned “unexecuted” on June 1, 2009.

(Doc. 12), which predicated the issuance of an Alias Summons for Mr. Brennan,

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

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).

On June 12, 2009, still unable to secure service on Thomas Brennan, who

was believed to have been transported to another Scientology facility outside the

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 firm,

Dandar and Dandar, P.A., on the basis of alleged “agreements” restricting Dandar

and his firm from litigation involving Scientology, which purportedly stemmed

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

issues in the instant appeal, they will not be addressed in this Brief, but for the

inescapable fact that the voluminous Record reflects that these “unrelated” issues

placed a shadow over the merits of the wrongful death action, both administratively

and in recognition of the vast resources dedicated to this tangential dispute.

In any event, on July 7, 2009, yet another return of service was returned

unexecuted as to Thomas Brennan (Doc. 31), which predicated a Plurias 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

Statutes.

FLAG raised similar defenses, and also asserted that the Estate assailed

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

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

soundness of this religious belief.” (See Doc. 34, p. 3).

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

(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).

On September 27, 2010, the Estate filed its Response in Opposition to the

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),

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

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

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.

Indeed, FLAG records show, unequivocally, that Thomas Brennan reported this

“potential trouble source” to Denise Gentile, and that Gerald Gentile was aware of

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,

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

of Scientology,” with numerous entries around the time of Kyle Brennan’s visit,

add 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

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 org’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 May or

June of 2006. (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

Declaration 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, 5)

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.

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

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.

SUMMARY OF THE ARGUMENT

The District Court, granted Summary Judgment on the basis of a variety of

credibility determinations, and an apparent rejection of the extensive exposition of

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

his damages and injuries were certainly foreseeable. 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.

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 (11th Cir.2001).

II. The District Court Erred by Making 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

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 (11th

Cir. 1996). At the summary judgment

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.

Furthermore, at the summary judgment stage, the judge must view the

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 must be denied. Mize, 93 F.3d at 742

(“[w]here the non-movant presents direct evidence that, if believed by the jury,

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.” Conno v. Halifax Hosp.

Med. Center, unpublished, 2002 WL 32290997, *3 (11th

Cir. 2002); Mize, 93 F.3d

at 743.

In granting the Motion for Summary Judgment, the District Court focused on

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

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 (11th

Cir. 1997).

In the instant action, the District Court begins the recitation of its order

granting summary judgment by going through a description of the relevant

pleadings and, notably, explaining the delay of addressing the pending summary

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

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

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 (11th

Cir. 2009).

This Court has held, citing one of the key Summary Judgment cases,

Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, (1986), that such action

is not the province of the trial court:

“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, 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

S.Ct. 2505.” Allen v Board of Public Education for Bibb

County, 495 F.3d 1306 (11th

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

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 U.S.A., 573 F.3d 1223 (11th Cir. 2009)

See also, Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328,

1330 (11th Cir. 1988). Summary judgment is appropriate only where there exists no

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.

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

(“[n]either 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 (11th Cir.1996). ” Felder v. Howerton, 240

Fed.Appx. 404, 406 (11th Cir. 2007).

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.

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 rights 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

context of a plea in intervention, because there were important constitutional rights

at stake, an evidentiary hearing was required to allow the court to enter findings

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.”

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

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

The complaint alleges that the individual Defendants were volunteers for

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

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 “FSO1” (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

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 to16,

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,

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

accessible to Kyle. These two independent actions breached the duties they owed to

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,

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,

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

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. Ltd., 939 So.2d 1106,

1107-08 (Fla. 1st DCA 2006). Whether the "duty to maintain the premises has been

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) ("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

open and obvious"), Frede v. J.C. Penney Corp., 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

the individual Defendants were volunteers acting under orders from FLAG

rendering the principal and its agents liable for the death of Kyle Brennan, Malicki

v. Doe, 814 So.2d 347 (Fla. 2002). The District Court erred in failing to reach this

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.1995).

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

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 FSO 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 rel. 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

§825.102, 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

• 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

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)

(foreseeability asks ‘whether the harm that occurred was within the scope of danger

attributable to the defendant's negligent conduct.’ ” Id. (quoting Gibson v. Avis

Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980)); Sogo v. Garcia's National

Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993) (where the seller of gun to a person

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

(11thCir. (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

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-

depressant, in need of help, and therefore a disabled adult. While Kyle Brennan was

still alive, Victoria Britton kept a daily log in a journal which she then transferred to

a computer. After Kyle’s death, Victoria Britton submitted the log to the

Clearwater Police by letter dated September 10, 2007. These logs are extremely

revealing as to the knowledge of Tom Brennan, Gerald Gentile, Denise Gentile, and

FLAG on the issue of when they knew Kyle Brennan was indeed a disabled adult.

Her daily logs show:

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.

After arrival in Clearwater

February 8, 2007:

• Tom is very busy with a class and it cost him a great deal of money

• Tom then said he was afraid to leave Kyle alone.

• Tom was afraid Kyle would hurt himself.

• Tom was afraid Kyle would commit suicide.

February 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.

February 12 , 2007:

(same day Denise Gentile performs Scientology “auditing” on Thomas Brennan).

• Victoria calls Tom and tells him Narconon agreed it is not the right place

• 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.

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

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.

Additionally, according to the Declaration of Gary Robinson, his Uncle, there

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

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 May or 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

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.

170-1). This is evidence of their assumption of duty by interfering with the

treatment of Kyle Brennan. It is clear that, at least a week before the death, Denise

Gentile and Tom Brennan know of the Lexapro, 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

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

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 Int5” in 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

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

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.”

Thomas Brennan, in accordance with the dictates of Scientology, did not

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

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

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 (11th 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 1271,1273 (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

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

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

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.

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, Trenan, Kenker, 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