Pages 1 thru 5 of Shaeffer's Order

From: alerma@nospam.bellatlantic.net (arnie lerma - www.lermanet.com)
Subject: Pages 1 thru 5 of Shaeffer's Order
Organization: CitizensAgainstCorruption
Message-ID: <3d9b5b60.59528536@news.verizon.net>
Date: Wed, 02 Oct 2002 20:40:30 GMT

Johnson, Alain Kartuzinski
And David Houghton, D.D.S.,

Defendants,

______________________/

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGEMENT ON WRONGFUL DEATH CLAIM (COUNT 1)

This cause came on to be heard on Defendants' Motion for Summary Judgment on Wrongful Death Claim (Count1), with a certificate of service dated May 24, 2002. This Motion was filed in the midst of a 35-day hearing on Defendants' Omnibus Motion for Terminating Sanctions and Other Relief. It was believed by counsel for both sides that some of the issues in the Omnibus motion would overlap the Motion for Summary Judgment as to the wrongful death count, and that some of the witnesses who would be testifying would be witnesses who had previously provided affidavits, depositions, etc. that would be used in the Summary Judgment Motion. Accordingly, it was agreed that the transcript of the Omnibus Motion would be filed, and counsel for all parties would be permitted to refer to the sworn testimony, as well as exhibits from the Omnibus Motion Hearing as well as all previously filed affidavits, sworn testimony, depositions and the like to support their respective positions in the Summary Judgment Motion. it is important that any reviewing court understand that testimony was not taken on the Summary Judgement Motion, as that is generally prohibited.

With the above explanation as a backdrop, the Plaintiff served her Amended Response to Defendants' Motions for Summary Judgment on

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Wrongful Death and Negligence (Counts I and V) on July 20,2002.. The Defendants had also filed a Motion for Summary Judgement as to Count V, the Negligent Survival Claim and the plaintiff combined her response as to both motions. Since the Defendants had filed their Motion in the middle of the hearing, they were, by agreement, permitted to file and did file Defendants' Final Brief on Issue of Sham Pleading, and Final Reply on Motion for Summary Judgment on Wrongful death Count, with a certificate of service of August 9, 2002. The Defendants had alleged as part of their Omnibus Motion for Terminating Sanctions and Other Relief that Count I of the complaint was a sham pleading. They combined this aspect with their Final Reply to the Summary Judgment Motion. Since the Defendants' Response was so extensive, the Plaintiff was given an opportunity to respond, which she did by serving her Response to Defendants' Final Replies to Plaintiff's Response to Summary Judgment on Negligence and Wrongful Death Claims on August 19, 2002. It was agreed this court could rule on this motion for summary judgment without further argument. This order follows.

A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgement as a matter of law. Fla. R. Civ. P. 1.510(c), and cases too numerous to cite. The burden is on the Defendants, as the moving party herein, to demonstrate conclusively that the Plaintiff cannot prevail. St. Pierre v United Pacific Life Insurance Company, 644 So 2nd 1030 (Fla. 2d DCA 1994); Snyder v Cheezem Dev. Corp., 373 So 2d 719 (Fla. 2nd DCA 1979). Not only must there be no genuine issue of material fact, but the court must draw every possible inference in favor of the party against whom the summary judgment is sought. Moore v. Morris, 475 So 2d, 666 (Fla. 1985). Even if the facts are uncontroverted, the entry of a summary judgment is erroneous if different inferences can be drawn reasonably from the facts. Staniszesky v. Walker, 550 So 2d 19 (Fla. 2d DCA 1989). If the record reflects the existence of any genuine issue of material fact or the "possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper:. St. Pierre @ 1031, emphasis mine. A summary judgment should not be granted unless the facts are "so crystallized that nothing remains but questions of law." Moore @ 668.

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Applying this rather basic law to Plaintiff's wrongful death claim, it would seem that no summary judgment can be granted. There are virtually no issues of material fact that are not controverted, including evidentiary as well as ultimate facts. Did the Defendants, or any of them, commit a wrongful act or acts of either commission or omission? There is no agreement on this issue. What was the cause of Lisa's death? Certainly this is a hotly contested issue, and has been since the case began. If the Defendants, or any of them, committed wrongful acts that caused Lisa's

death, what is the extent of each defendant's wrongdoing, were they negligent, grossly negligent, culpably negligent, or did they intend to cause her death? This is certainly a contested issue, and is the real issue in Defendants' Motion for Summary Judgment on Count I.

The crux of the Defendants' Motion can be found on pp. 1-2 of their Motion. "Because there are no facts to support plaintiff's intentional murder claim, and therefore, no genuine issue as to any material fact, the defendants are entitled to judgement as a matter of law on Count I of the plaintiff's Fifth Amended Complaint." It is this aspect of the Defendants' Motion that will be dealt with in this Order. The issue of whether or not this is a "sham pleading", because the Defendants allege the Plaintiff had no evidence to join David Miscavige as a defendant, or because there is an allegation in the

complaint that the decision to let Lisa McPherson die was made through the Sea org, by David Miscavige, will be dealt with in a subsequent order on the Defendants' Omnibus Motion for Terminating Sanction and Other Relief. Since David Miscavige is no longer a Defendant, what the Plaintiff will have to prove is that the Defendants, or any of them, "in total and conscious disregard for the rights of Lisa McPherson, willfully, intentionally, wantonly, and maliciously toward the last days of her life decided to let Lisa McPherson die, ..rather than save her life..." P 34 of Plaintiff's Fifth Amended Complaint. The rest of P 34 is either an explanation of terms, the reason David Miscavige was added to the complaint as a Defendant, surplus or why this happened, i.e. the motivation for why this happened.

The Plaintiff does not have to prove that an end cycle order was given. Nor does she have to prove that David Miscavige, or any other person, ordered an end cycle. She doesn't have to prove that David Miscavige did or did not do anything, as he is no longer a Defendant in this case. She does not have to prove why, i.e. what was each Defendants's motive. She does

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have to prove that the Defendants' intentional actions or inaction's caused Lisa McPherson's death, and that damages are appropriate against the Defendant(s), individually or collectively, and what the amount of those damages are.

The Plaintiff, in her Amended Response to Defendants' Motion for Summary Judgment on Wrongful Death and Negligence suggests that her complaint alleges not only intentional action or inaction on the part of the Defendants, but also conduct that would allege culpable negligence on the part of the Defendants. That is far from clear in the court's mind. The Plaintiff seems to know how to plead culpable negligence, as can be seen from every other count of the complaint. Count II-Intentional and Reckless Infliction of Emotional Distress (Outrage), alleges @ 39, "These Defendants, after assuming responsibility for her well being, intentionally, willfully, wantonly, maliciously, and in reckless and conscious disregard of the rights of LISA MCPHERSON, engaged in the following outrageous behavior towards her:", emphasis mine. Count III-False Imprisonment alleges @ 44, "Defendants willfully, intentionally, wantonly, and maliciously and in reckless and conscious disregard of the rights and safety of LISA MCPHERSON.." committed battery upon her, emphasis mine. Count V- Negligence alleges @ 53, "The above actions by SCIENTOLOGY were grossly negligent, and in reckless and conscious disregard for the safety, well being, and rights of LISA MCPHERSON...", emphasis mine. Each of Counts 2-5 of the Plaintiff's complaint allege culpable negligence as well as intentional conduct on the part of Defendants. Count I, however, does not allege that the actions of the Defendants were done "with reckless and conscious disregard" for the rights, safety, well-being, etc. of Lisa McPherson, but only the "total and conscious disregard" of the rights of LISA McPherson. It seems to this court that the Plaintiff deliberately omitted any culpable negligence, i.e. reckless disregard, from Count I of her complaint.

The Plaintiff indicates in her Amended Response several times that Count I alleges "intentional medical neglect:. Allowing a physically or mentally disabled adult to die through intentional medical neglect is indeed a felony in the State of Florida. See F.S. $ 825.102(1995). But that statute also provides for the felony if it was done by "culpable negligence." In 1995, a death occurred as a consequence of and during the

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commission of that felony, whether done "knowingly, willfully, or by culpable negligence" could be murder. In 1995, it would be a murder in the third degree, although subsequent to the time Lisa died, murder in the first degree was amended to include this crime as one of the underlying felonies subjecting one to first degree murder charges. Thus, when the Defendants complain that the Plaintiff and her counsel stated at various times, in pleading's and otherwise, that this was a case of the murder of Lisa McPherson, there is basis for the Plaintiff's statement, even if the death was not premeditated, but rather as the consequence of and during the commission of the intentional abuse or medical neglect of Lisa McPherson, if she was a disabled person, which is a question of fact for the jury.

Did the Plaintiff think she had alleged culpable negligence in her complaint? While such thoughts would be irrelevant as to whether she had in fact pled culpable negligence, the Defendants, both in their Motion for Summary Judgement and in their final Reply on the motion, refer this court to a discussion between Mr. Dander and Judge Moody as a hearing to dismiss the Fourth amended Complaint which had similar language in the wrongful death count (Count I of the Fourth Amended Complaint); 36, Fourth Amended Complaint, "...[Y]et it was decided on or before December 5, 1999 (sic) by the Defendants and the hierarchy to do nothing to save the life of LISA MCPHERSON." ,emphasis mine. The Defendants, on pp. 2-3 of their Motion, and on p.32 of their Final Reply say, "At a hearing on July 22, 1999 on a Motion to Dismiss the Fourth Amended Complaint, when questioned about these allegations, Mr. Dandar 'asserted' (in Motion); 'emphatically insisted' (in Reply) to Judge Moody that the wrongful death count did not rest upon any allegation of negligence, but rather was based exclusively on an allegation of intentional murder, even in the face of Judge Moody's suggestion that he would be unable to prove it:

MR. DANDAR: The wrongful death count is pursuant to an order from above. They made a decision, "Do not seek medical help. Let her die. She better dead than going to the press or going back to Morton Plant Hospital. We have too many questions to answer."

THE COURT: All right. Well, putting aside for the moment the manner in which you intend to prove Count 1, the fact is that Count I is an allegation of negligence with resulting personal injury which caused death.

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