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 2 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. 3 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 4 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 imprisoned LISA MCPHERSON...", emphasis mine. Count IV-Battery alleges @ ¶ 48,"[T]hese Defendants willfully, intentionally, watonly, and maliciously in reckless disgregard 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 5 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 is 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. 6 MR. DANDAR: It's intentional conduct actually. It's not negligence. There is no negligence in here except in this count [i.e., the negligence survival count]." Transcript, p 53, emphasis in original. What the Defendants failed to include in both their original Motion and their Final Reply is the very next inquiry by the Court and Mr. Dandar's response: THE COURT: So Count I does not---you are not incorporating negligence into Count I? MR. DANDAR: We call it culpable negligence. We call it gross negligence, and we call it willful and intentional and malicious. Just to be sure, let me turn to the ---, emphasis mine. After this, the court, without waiting for Mr. Dandar, goes back to discussing Count VII, the negligent survivor count, and that is the end of this discussion. Thus Mr. Dandar and the Plaintiff must have thought they pled culpable negligence as well as intentional conduct. Again, whether he did or not is what is in question, not what he or the Plaintiff thought they alleged. However, the Defendants should have included the additional language to paint the whole picture of the Plaintiff's intent. Since there is a serious question in my mind as to whether or not the Plaintiff alleged a homicide by culpable negligence, or a homicide by abuse or a neglect of a disabled person by culpable negligence, I will concentrate in this order only on whether or not there is any evidence, even the "slightest" amount, to show intentional conduct or omission on the part of any or all of the Defendants. I am not going to analyze all the evidence, only so much of it that shows there is some evidence in the record to support intentional conduct or omission on the part of the defendants. Once I have shown that "slightest" amount of evidence, it is unnecessary for me to show more to decide the Defendants' Motion. Clearly, if there is evidence of intentional actions or omissions on the part of the Defendants, there is evidence of culpably negligent actions or omissions, a lesser burden of proof. All three of Plaintiff's forensic pathologists opine that the manner of Lisa Mcpherson's death was a homicide, and not an accident. There are four types of homicide in Florida: (1) murder in the first degree, a death, coupled 7 with preditation, or as a consequence of and during the course of committing certain felonies, such as rape, kidnapping, armed robbery and the like, (2) murder in the second degree, a death by an act imminently dangerous to another and evincing a depraved mind regardless of human life, (3) murder in the third degree, a death occurring as a consequence of and during commission of a felony not included in those constituting first degree murder, such as grand theft, or in 1995, abuse or neglect of a disabled adult, and (4) manslaughter, a death caused by an act, a procurement, or culpable negligence. Since Lisa McPherson's death, the manslaughter statute has been amended to specifically include death caused by abuse or neglect of a disabled adult. And as previously stated, the first degree murder statute has been amended to include this felony as one which underlies a first degree murder charge. In this court's opinion, the Plaintiff, in her complaint, in accordance with 1995 law, has alleged a wrongful death either with premeditation (first degree murder), or as a consequence of and during the commission of the felony of abuse or neglect of a disabled adult, not by alleging culpable negligence, but by intentional abuse or neglect, (third degree murder ), or by a wrongful act that was neither premeditated nor imminently dangerous to another and evincing a depraved mind regardless of human life, (manslaughter by an act) The Plaintiff suggests she has also alleged manslaughter by culpable negligence, or abuse or neglect of a disabled adult by culpable negligence, but in this court's opinion, that is tenuous. Thus any analysis of culpable negligence, as easier burden of proof for the Plaintiff, will not be addressed further in the analysis of the evidence. Intent is generally a question for the jury, and a summary judgment is generally no appropriate when intent is the issue of a fact or question. See MHI, Inc. v. DeCamp Realty, Inc. 726 So 2d 305 (Fla. 4th DCA 1999); Wolofsky v Waldron, 526 So 2d 945 (4th DCA 1988); American International reality, Inc v. Southeast First National Bank of Miami, 468 So. 2d 383 ( Fla. 3dDCA 985); State v Wise, 464 So. 2d DCA1245 (Fla. 1st DCA 1985): Nesbitt v Auto-Owners Insurance Company, 390 So 2d 1209 (Fla. 5th DCA 1980); State v. J.T.S., 373 So 2d 418 ( Fla. 2d DCA 418). Normally, criminal cases would not be stated in civil case, but as stated in J.T.S. @ 419, "proceeding under Rule 3.190 (c)(4) (the Criminal Rule of Procedure involved in the case) is the equivalent of a civil summary judgment proceeding..." Parenthetical mine. 8 The intent with which an act is done is not only usually a jury question, and not one for the court in a summary judgment motion, but that would be particularly true in a case such as this where evidence might directly prove intent has been withheld by the Defendants. Where evidence such as that withheld in this case is not forthcoming prior to trial, the Plaintiff can resort at the trial to arguing adverse inferences that the withheld evidence would be unfavorable to the Defendants, and perhaps even shift the burden of proof in some instances. Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla 1987); New Hampshire Insurance Company Inc. v. Royal Insurance Company, 559 So. 2d 102 (4th DCA 1990). The inference that this court must draw in any summary judgment motion is every possible inference in favor of the Plaintiff, the party against whome the summary judgment motion is sought. Moore v. Morris, 475 So 2d 666 (Fla. 1985). Thus, the appropriate inference this court must draw in this Motion for Summary Judgement is that the missing caretaker reports, the missing information in Lisa's pc folders, and all the other missing information is unfavorable to the Defendants, including unfavorable regarding the Defendants ' intentions. If the missing caretaker reports near the time of Lisa's death indicated that she was critically ill, in need of medical attention, or that she appeared dehydrated, comatose, or any of the things that the Plaintiff's doctors say should have been obvious, particularly to Defendant Johnson who was, although unlicensed in Florida, medically trained, and a previously licensed physician, the failure of the Defendants to obtain necessary care for Lisa could very easily progress from a negligent omission to an intentional one. In any event, this is clearly a question of fact to be resolved by the fact finder-the jury. The Defendants would respond that the caretakers are able to state what was in their reports, or that Defendant Kartuzinski, can state what was in the reports he received, and further, that Kartuzinski, Johnson and Houghton can state what their intent was, However, credibility of a witness is clearly a question for the jury, not this court. The Defendant church suggests that it would violate Florida Statute § 90.611 to let the jury hear about any Scientology religious belief which purportedly "encourages Scientologists to commit perjury or make false statements" as an issue bearing on the Defendants' credibility. Defendants Reply, p 67. I need not answer that issue here, as it is not necessary to do so. Suffice to say that the Defendant Kartuzinski has admitted in his filed, sworn testimony before the state attorney, and in his deposition that he lied to police who were investigating this case in order to protect himself and the Defendant Church. 9 Additionally, his own testimony, given at various times, is not always consistent. And there are inconsistencies between his testimony and that of the other witnesses. As to Janis Johnson, her testimony is so different from the Plaintiff's experts, other caretakers, and Dr David Minkoff, the Scientologist doctor, whom the Defendants insisted see Lisa McPherson, even though he was a 45 minute drive away, and he testifies in his deposition that he told the Defendants to take Lisa to the emergency room, the closest of which was just a few miles away, that either her testimony is erroneous or Dr. Minkoff, and other witnesses' testimony is erroneous. As to the other caretakers, particularly those who were taking care of Lisa during the last, and the most critical days of her life, their testimony conflicts with each other, with that of other witnesses, and within their own various testimony to the police. the state attorney and deposition. This will all have to be sorted out by the jury. Who is telling the truth is not a question of law, but a fact for the jury. And while it is not for any party's experts to testify whether a witness is telling the truth, when asked in his deposition, by the Defendants' counsel, if the caretakers were telling the truth when they say this or that, in their reports, depositions, etc., Dr. Werner Spitz says as to some of their testimony and reports that he does not believe the caretakers are telling the truth. Spitz Deposition, June 14 and 15 2001 @ pp 54-55, 101, 397-400. The jury could conclude the same as Dr. Spitz did. In summary, what each of the Defendants' intent was is a question of fact for the jury, not this court. On the this basis alone, no summary judgment can be granted at to Count I. The Defendants discuss what the Plaintiffs' experts stated in their depositions and affidavits to attempt to establish that the Plaintiff can prove no issue of intentional wrongdoing. They artfully pick and choose their passages from the depositions. However, the Defendants are incorrect for several reasons in their conclusion that no expert of the Plaintiff supports the Plaintiff's assertions that the Defendants' actions, or inactions, in failing to obtain necessary medical case for Lisa was intentional. First, these experts cannot possibly know what either Kartuzinki's, Johnson's or Houghton's intent was. it is doubtful if any of them thoroughly read Kartuzinski'', Johnson'' and Houghton'' deposition, or various other sworn and unsworn statements. They are probably unaware that Kartuzinski has admitted he lied on at least two occasions as to his involvement. They could not know what he, or any Defendant knew from the caretaker reports for the last days 10 of Lisa McPherson's life, because the Defendants have with one exception not produced these reports. Second, the testimony of the forensic doctors, assuming it is objected to by either side, as to their opinions of "second degree murder", "intentional medical neglect", or "gross negligence", is inadmissible. they not only don't have the knowledge of all the necessary facts in this case to even begin to suggest what someone's intent was, a prerequisite for any ultimate issue testimony, but also this type ultimate issue testimony is generally inadmissible, despite what is otherwise stated in F.S. § 90.703. See Ehrhardt, Florida Evidence § 703.1., and cases cited therein which disallow expert's opinions that something was done from "negligence", "gross negligence" "premeditated", "depraved mind" and the like. Although there are many reasons for excluding testimony, such as invading the province of the jury by allowing an expert to tell them how to decide the case, the "most significant reason for exclusion of the opinion testimony is not due to the issue upon which the witness is testifying, but rather that there can be no assurance that the witnes s is using a term or legal expression in the same sense that the statutes and appellate decisions have defined the critical words of art." Erhardt. "The Conflict Concerning Expert Witnesses and Legal Conclusions", 92 W. V. L. Rev. 645, 660 Spring, 1990. See also Smith v. Martin, 707 So 2d 924 (Fla. 4th DCA 1998). The Defendants readily recognize that this is true when the expert's testimony is not to their liking. See Defendants' Objection to Exhibits relied upon in Plaintiff's Opposition to Motion for Partial Summary Judgment, dated September 10, 2001, wherein they objected to the affidavit of Mark J. Mills, J.D., M.D., the Plaintiff's psychiatrist expert. The specific testimony they asked the court to exclude from "consideration for any purpose on their motional distress summary judgment motion" was, in part, Mill's "opinion testimony apply a legal standard to a set of facts, impermissibly relaying information that is within the common understanding of the jurors and impermissibly telling the jury how to decide the case." Defendant's Objection, @ p.7, emphasis mine. What the Plaintiff'' expert affidavit said, and what the Defendants wanted excluded was that portion of Davis' Affidavit that said, "those in charge of Ms. McPherson's stay at the hotel acted recklessly, with a deliberate disregard of Ms. McPherson.: Id @ p7, emphasis mine. in fact they, as I did above, cited Smith v Martin, 707 So. 2d 924, 925 ( Fla. 4th DCA 1998), which states that it was error for the trial court to admit "the conclusory opinion of appellant's expert attributing 11 gross negligence to the appellant." The Defendants cannot have it both ways. Their argument in their objections to Mills' testimony that the court should not consider Mills' ultimate fact opinion in deciding their summary judgment motion as to emotional distress is correct. Their argument in this motion suggesting, the opinions of Plaintiff's experts should be used by this court to grant their summary judgment is incorrect. All the attorneys are cautioned to not argue a position in one motion and then argue the reverse of that position in another motion, unless the court disagreed with their first argument. Dr. John Coe opines, "I would classify the mode of death as homicide by reckless abandonment, neglect, or whatever. Not a-not a first degree homicide, but a second degree homicide." Coe Deposition, November 16, 2001 @ p. 457, emphasis mine. I doubt that Dr. Coe, not a Florida native, has any idea of what second degree murder is in the state of Florida. Nor would I allow him to tell the jury that what happened to Lisa McPherson was a second-degree murder. that would invade both my perogative to properly instruct the jury, should it become necessary, on second degree murder, and the jury's perogative to decide the case. However, if I were to allow Dr. Coe's opinion, that what occurred in this case was a second degree murder, to be considered by me or by the jury, it would not help the Defendants' case in this motion or at trial. But this testimony is improper. A medical examiner never testifies beyond the manner of death being a homicide. The degree of homicide is for the jury. Dr. Calvin Bandt says in his filed affidavit, "[T]he manner of death of Lisa McPherson is classified as homicide, as a result of the intentional neglect of medical care." In his deposition, he eiterates this but says, "It was the neglect that was intentional I do not believe they intended to cause her death." See Brandt Affidavit and Brandt deposition, June 5, 2001, pp 778-781, emphasis mine. This confusing testimony appears to suggest Murder in the Third Degree, intentional neglect of a disabled adult resulting in death, or manslaughter by intentional act. Dr. Brandt, like the other forensic experts for both the Plaintiff and the Defendant, cannot possibly know what the intention of the Defendants, or for that matter the caretakers, was. And, he will not be allowed to testify as to this, any more than the other experts can. intent is a state of mind, not always capable of direct and positive proof. As stated previously in this Order, intent is a question for the jury, after hearing all the testimony and see all the evidence. None of the Plaintiff's or Defendants' experts can tell the jury what they think the 12 Defendants' intent was. That decision is for the jury. On this issue, what Dr. Bandt says is quite correct, Q. As a medical examiner, are you - do you render opinions as to whether or not a suspect intended to kill another? A. No. Q. Who renders that opinion in your practice? A. That is left up to the County Attorney. Or the Grand jury, I might add, usually the grand jury." Bandt deposition, pp. 829-830. While the grand jury makes the original assessment pre-indictment of what degree of homicide a particular case is, the petit jury decides this issue at a trial. Likewise, in a civil trial, the jury will decide whether Defendants' actions, or inactions were wrongful, and if so, whether the wrongful actions or inactions were intentional or not. Dr. Werner Spitz says the manner of death was a homicide, and when asked what that was based on, he said, "That this is gross negligence what occurred here. Spitz Deposition, June 15, 2001, @ p. 382, emphasis mine. Again, I do not know if he was talking about the legal definition of gross negligence, or if he even knows what the legal definition of gross negligence is in the State of Florida. Frankly, it is doubtful that "gross negligence" actions or inactions even constitute a homicide in the State of Florida. Culpably negligent or intentional actions or inactions do. Additionally, it appears that he does believe that the acts of the caretakers and/or the Defendants might well have been intentional. For example, later in the deposition, when being questioned about what he relied on for his opinion that the manner of death was a homicide, he says "If she was given an IV like she's supposed to, if she was taken to a hospital and treated, she wouldn't have had that embolism, she wouldn't have had the dehydration. She wouldn't have had any of the findings that she had. She wouldn't have looked the way she does. She wouldn't have been admitted back to the hospital when she arrived there, dead, neglected, and unkempt, and obviously somebody - somebody who wasn't taken care of..." Spitz, @386. Later, when the Defendants' attorney was trying to get him to say that there was no testimony that anyone was intentionally trying to harm Lisa McPherson at the Ft. Harrison Hotel, he said, "Testimony? No I don't know of any testimony along that line. You mean somebody would say 'I deliberately did this? No, I didn't read that, I didn't find that, nobody said that." Spitz, @394. And he is correct - no one did say that. Whether that testimony is true or not will have to be decided from all the testimony and evidence, both direct and circumstantial, including all inferences that can be drawn from the evidence, or lack thereof, such as the missing reports, pc folders, etc. And the decision will be made by the jury. When Dr. Spitz was asked whether or not he "believed" that someone was trying to hurt Lisa 13 McPherson at the Ft. Harrison Hotel, he says, "Well no, I'm not convinced about that. I'm not convinced about that. Unless they were following orders." The Dr. was cut off, but soon asked again, after much legal harangue, "Q. "You don't believe, do you, that anyone at the Fort Harrison Hotel, any of the Scientologists, were intentionally trying to hurt Lisa McPherson, do you?" A. "I'm not convinced" Q. "What do you mean you're not convinced?" A. "I'm not convinced that they were not either told to deliberately hurt her or told to keep her there contrary to her wishes or what the reason is that during the obvious deterioration, during the seventeen days, from day to day getting worse, to the point where she is unconscious for several days...," The Dr. is again cut off, and asked Q. Right? Right?" The Dr., after more legal harangue, says A. "No, this is not a presumption. You - you have a patient that is obviously deteriorating over a period of seventeen days, with a terminal period of several days of unconsciousness or, if you wish, subconsciousness with a time when she is obviously dead, at least that is one likely scenario, and no one has the gumption of saying "Wait a minute, I'll take her - I'll take her in my car and drop her off in the hospital two minutes down the road." Spitz, @ 394-397, emphasis of mine. The admissible testimony of Dr. Spitz, not his inadmissible conclusion of "Gross Negligence," will also defeat the Defendants' summary judgment of Count 1. All three of the Plaintiff's expert forensic pathologists opine that Lisa McPherson died of either severe dehydration or a pulmonary embolism caused by severe dehydration. They all opine that Lisa would have deteriorated over her 18 day stay, that she had lost weight, had sunken eyes, and other obvious signs of dehydration. They state that she would have been in euremic coma during the last several days of her life. They do not believe she was walking around those last few days as described by some of the caretakers (although some said otherwise). They said while she could have been aroused for feeding, she would have otherwise have been somnolent. And while this disagrees with what Defendants' counsel believes their testimony says, I believe the totality of their testimony shows that they believe her critical medical condition should have been obvious to a lay person long before the day she was taken to the hospital, where she arrived dead, and certainly would have been obvious to a medically trained person like Defendant Johnson, who was the person responsible for periodically discussing Lisa's medical situation with Defendant Kartuzinski. See, for example, Bandt deposition, p. 780-781; Coe deposition, p. 236; 14 Spitz deposition, pp. same as above. Even on the last day of Lisa's life, the Plaintiff's experts believe that if either Defendant, Johnson, who should have realized that Lisa was critical, and reported that condition to Kartuzinski who was in charge, had called 911, or taken Lisa immediately to the emergency room at a hospital a few miles and 5 minutes from the hotel/church facility, rather than to a hospital in another city, 45 minutes or more away, her life could have been saved with an IV and other medical treatment. If the jury believes the Plaintiff's doctors testimony, could they determine that both Kartuzinski and Johnson knew of Lisa's critical condition, and that their failure to seek immediate medical treatment for her at the closest medical facility, was intentional, rather than negligent or culpably negligent? The answer is yes. This is a jury question. I could analyze other testimony, affidavits, exhibits introduced at the Omnibus Motion for Terminating Sanctions' hearing, etc., but that is not necessary to decide that the Defendants' Motion for Summary Judgment on Wrongful Death Count. In this court's opinion, we are past that "possibility," or "slightest doubt" test in the law of summary judgments that the Defendants acted intentionally when they failed to obtain necessary medical care for Lisa McPherson. Accordingly, no further analysis is necessary, and no further analysis will be done. This court will analyze Mr. Prince's testimony and affidavit in her Order on Defendants' Omnibus Motion for Terminating Sanctions and Other Relief. Several observations, however, will be made: First, motive has never been a necessary element of proof in a homicide. Matthews v. State, 177 So. 321 (Fla. 1937), and other cases are too numerous to cite. Therefore, all the "Why's" contained in the Plaintiff's complaint are surplussage, and unnecessary to prove. That is not to say the Plaintiff is prohibited from attempting to show a motive. It simply isn't a necessary item for proof for the jury to be allowed to decide this case. Thus, the "why's" in the complaint - i.e. the motive - need not be examined in this order. Second, the allegations regarding Mr. Miscavige in the complaint were necessary to allege to bring him into the complaint as a Defendant, as he was not present when the actions or inactions of the other Defendants occurred. If he had been served and was still a Defendant, it would have been necessary to prove at least some of the allegations regarding him for 15 the Plaintiff to escape a summary judgment or a directed verdict as to Mr. Miscavige. However, since he is no longer a Defendant, the Plaintiff having been unable to properly serve him, the Plaintiff does not need to prove he did anything, and the Defendants do not need to establish that he did not do anything. Third, the Defendants suggest that I must resolve 5 evidentiary issues before declining this motion. Defendant's Final Brief to the Issue of Sham Pleadings, and Final Reply on Motion for Summary Judgment on Wrongful Death Count, pp. 49-69. That is unnecessary to a resolution of this motion for summary judgment, and I decline to do so. If the Defendants either do not prevail on their Omnibus Motion for Terminating Sanctions and Other Relief, or if those issues are not otherwise resolved in that Order, these issues can be resolved at a hearing set for that purpose. Fourth, Dr. David Houghton, D.D.S and his role in the alleged wrongful death, seems to have been "lost in the shuffle" by both counsel for the Plaintiff and for the Defendants, including his own individual counsel. I have not seen any discussion of whether or not he is in any way involved in the wrongful death count. The filed material in this case is so voluminous, I would have to spend weeks scouring the record to determine his involvement, if any. Therefore counsel for the Plaintiff is directed to file a brief showing me sworn testimony, depositions, affidavits, etc. where there is any evidence that would allow the Plaintiff to continue to have Dr. Houghton remain as a Defendant in Count 1. This pleading must be filed within 10 days of the receipt of this order. In the event that such a pleading is filed, the attorney for Dr. Houghton may have 5 days to respond to the pleading. These briefs should not repeat what has been previously submitted with this motion but should relate specifically to the evidence, if any, as it relates to Dr. Houghton. If no pleading is filed by the Plaintiff, a summary judgment on Count 1, as to Dr. Houghton, will be granted. For all of the above reasons, it is ORDERED AND ADJUDGED that the Defendants Motion for Summary Judgment on the Wrongful Death Count as to the Defendants Kartuzinski, Johnson, and the Church of Scientology, Flag service Organization, Inc. is denied. It is further 16 ORDERED AND ADJUDGED that the court takes the Motion under advisement as to the Defendant, Dr. David Houghton, awaiting pleadings mentioned above, if any are filed. If pleadings are filed, the court will enter an additional order. No hearing will be necessary unless directed by this court. If no pleadings are filed, the Motion for Summary Judgment on Count 1 will be granted as to the Defendant, Dr. David Houghton. ORDERED AND ADJUDICATED that the Defendants' request for monetary sanctions and attorneys fees is denied. DONE AND ORDERED in St. Petersburg, Pinellas County, Florida this 30 day of September 2002 Susan F. Shaeffer, Circuit Judge Copies to: All counsel of Record.
Typing and proofreading by various persons -- Scans are here
Life and Death of Lisa McPherson