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.

APPELLANTS 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 Statement Regarding Oral Argument Table of Contents Table of Authorities Statement of Jurisdiction Statement of the Issues Statement of the Case and of the Facts Summary of the Argument Argument and Citations of Authority I. II. Standard of Review The District Court Erred by Making Credibility Determinations and Rejecting Plausible Inferences That Should Have Been Left to a Jury The Estate Presented Sufficient Factual Bases to Support Its Allegations and Avoid any Legitimate Adverse Summary Judgment The District Court Erred by Failing to Find that the Defendants Owed a Duty of Care to Kyle Brennan Conclusion

ii iv v vi 1 2 3 16 17 17

17

III.

26

IV.

29 45

V.

Certificate of Compliance Certificate of Service

45 46

TABLE OF AUTHORITIES Cases: Aaron v. Palatka Mall, LLC, 908 So.2d 574, 578 (Fla. 5th DCA 2005) Adams v. Baldwin County Bd. of Ed. Of Baldwin County, Georgia, 628 F.2d 895 (5th Cir. 1980) Allen v Board of Public Education for Bibb County, 495 F.3d 1306 (11th Cir. 2007) Amin v. Loyola Univ. Chicago, 2006 WL 3371446 (W.D. Wis. 2006) Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, (1986) Banfield v. Addington, 104 So. 2d. 661, 893 (1932) Barfield ex rel. Barfield v. Langley, 432 So.2d 748 (Fla. 2d DCA 1983) Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2458 (1986) CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003) Conno v. Halifax Hosp. Med. Center, unpublished, 2002 WL 32290997, (11th Cir. 2002) Corbitt v. Home Depot U.S.A., 573 F.3d 1223 (11th Cir. 2009) Felder v. Howerton, 240 Fed.Appx. 404, (11th Cir. 2007) Flight Training, Inc. v. Tropical, Inc., 2007 WL 5117263, 6 (S.D. Fla. 2007) Food Lion, LLC v. Monument/Julington Assoc. Ltd., 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006) 30

25

21, 22 26 18, 21, 22, 24 32 32 19 21

19 22 24 33

30

Frede v. J.C. Penney Corp., Inc., 2007 WL 2254513 (M.D. Fla. 2007) Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980) Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) Horton v. Freeman, 917 So.2d 1064, 1066 -1067 (Fla. 4th DCA 2006) Ja Dan, Inc. v. L-J Inc., 898 F.Supp. 894, 900 (S.D.Fla.1995) Johnson v. Bd. of Regents, 263 F.3d 1234 (11th Cir.2001) Jones v. Caddo Parish School Bd., 499 F.2d 914, 918 (5th Cir. 1974) Malicki v. Doe, 814 So.2d 347 (Fla. 2002) McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir. 1996) Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988) Rafferman v. Carnival Cruise Lines, Inc., 659 So.2d 1271 (Fla. 3rd DCA 1995) Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328, (11th Cir. 1988) Sogo v. Garcia's National Gun, Inc., 615 So.2d 184 (Fla. 3d DCA 1993) Spadafora v. Carlo, 569 So.2d 1329, 1331 (Fla. 2nd DCA 1990) Stewart v. Happy Hermans Cheshire Bridge, Inc., 117 F.3d 1278, (11th Cir. 1997) T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987)

31 33 26 32 31 17 25 31 29 18, 19, 24 44

42, 43

22 33 30

19

18

U.S. v. Maxwell, 579 F.3d 1282 (11th Cir. 2009) Williams v. Davis, 974 So.2d 1052 (Fla. 2007) Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067 (11th Cir. 2003) Wyke v. Polk County School Bd., 129 F.3d 560 (11th Cir. 1997) Wood v. Camp, 284 So.2d 691, 695 (Fla.1973) TABLE OF OTHER AUTHORITIES Constitutional, Statute and Rule Provisions: Constitution of the United States, Article III 28 U.S.C. 1291 28 U.S.C. 1332 Rule 54, Fed.R. Civ. P Rule 56 (c) Fed.R.Civ.P. Rule 102 Fed.R.Evid. Florida Wrongful Death Act 768.16 Fla. Stat. 768.0170 (1) Fla. Stat. 768.1355 Fla. Stat. 790.17 Fla. Stat. 825.102

21 29

32 32, 42, 44 29, 30

2 1 1 18 18, 23 32 8 30 10 40 32, 41

STATEMENT OF JURISDICTION The matter before the lower court was a Complaint for Wrongful Death. The District Courts 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 Defendants 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 antidepression medication, Lexapro, prescribed by his psychiatrist, Stephen McNamara, M.D. Kyles 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 Kyles

psychiatrist. Thereafter, the Defendants, Denise Gentile, Gerald Gentile, and Thomas Brennan contacted Kyle Brennans 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 Kyles 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 Kyles 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 sons 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, Kyles 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 Gentiles 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 sons possession, without the knowledge and consent of his adult son, Kyle Brennan, and locked the Lexapro in THOMAS BRENNANS 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 Floridas 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 FLAGs 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 Estates 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 Courts administration of this action was the effort made by FLAG and the other Defendants to disqualify the Estates 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 Courts 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 Brennans injury and damages were caused by his sole negligence, and also that Kyles injury and damages were proximately caused by the comparative fault of joint tortfeasorsThomas 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. Kaplans 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 Brennans presence in an apartment shared by Kyles 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 Kyles condition and connection to his Father, coupled with the fact that, upon discovering his Sons 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 Kyles mother, he called his Scientology Chaplain, because, in Marcors view, Brennans position was, my son is dead and I cant 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 Brennans 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 orgs 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 Estates 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 Estates 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 Courts 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 Courts 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 persons 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 Hermans 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 Courts controversial rejection of the multi-faceted efforts to remove the Estates 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 Courts 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 Estates resistance to accept the District Courts 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 courts 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 Brennans 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 Courts 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 ones independent medical and psychological treatment, which should have been respected without undue interference and deprivation based on someone elses 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 PTS2 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. Marcors 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. 3. The defendant failed to conform to that duty; and 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 Kyles 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 antidepressant 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 antidepressants, 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 Kyles 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 antidepressant, 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 Kyles 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 Kyles 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 Brittons 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 Brennans and Denise Gentiles 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. 14919). Where are the KRs written by Tom Brennan and Denise Gentile before and after Kyle Brennans 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 KRs 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 cars 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). FLAGs control even lasted beyond the date of Kyles 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 Gentiles 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 Brennans 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 individuals propensity to do violence to himself or others. Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988), and further found, In sum, Kyles fathers mere possession of a handgun and ammunition neither creates a duty to prevent his adult sons unforeseeable suicide by use of the gun nor establishes that his adult sons 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