IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
GENERAL CIVIL DIVISION
ESTATE OF LISA McPHERSON, by and
CHURCH OF SCIENTOLOGY FLAG
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Plaintiff responds to the Defendants' Motion for Partial Summary Judgment on the tort of Outrageous Conduct as follows:
I. SUMMARY OF GROUNDS FOR DENIAL OF MOTION
The 55 page Motion for Partial Summary Judgment filed by the defendants must be summarily denied for two reasons:
1. It is based solely upon the testimony of Scientology staff, i.e., interested persons, and the court is not permitted to judge the credibility of interested persons in a motion for Summary Judgment. Even without this interested person rule, conflict in Scientology staff testimony creates genuine issues of material fact;
2. It is based on the religion clause of the First Amendment and Florida's RFRA, when in fact, religion, religious practices, and religious beliefs have nothing to do with any of the claims of the Fifth Amended Complaint as conceded by the Defendants and the Plaintiff.
II. The Defendants' Motion For Partial Summary Judgment.
Defendants' assert they are entitled to summary judgment on the following grounds:
1. Actions against Lisa McPherson are protected by the First Amendment and RFRA, F.S.'761.01 et seq.;
2. Actions do not constitute outrageous conduct;
3. Defendants had no intent to cause emotional distress;
4. Actions did not inflict emotional distress;
5. Actions, if true, constitute other torts;
6. Certain of the actions, if true, merge into wrongful death count.
Nos. 2 through 4 require the court to judge the credibility of Flag staff, which this court is not permitted to do. 1, 5, and 6 have been grounds previously asserted by the defendants as a matter of law in their numerous motions to dismiss, which have been repeatedly denied. Ground 6, merger, is a frivolous argument since the outrageous conduct is not alleged to cause death. The law has not changed.
III. Credibility Issues of Witnesses Precludes Summary Judgment.
A. The Applicable Law Precludes Summary Judgment.
. . . the question of the 'credibility' of an interested witness [Parise] was for determination by the trier of facts and should not have been resolved by summary final judgment. Berlanti Construction Co., Inc V. Miami Beach Federal Savings and Loan Association,183 So.2d 746 (Fla 3rd DCA, 1966).
We do not have to explore the problem of manifest weight of evidence which could develop at the trial. This would involve *748 an evaluation and credibility process which is not an aspect of the summary judgment procedure. Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780. We consider it as settled that in passing upon a motion for summary judgment requiring an evaluation of the facts, neither the court below, nor this court, is permitted to pass upon the credibility of the witnesses or the comparative weight of the evidence. Williams v. Board of Public Instruction, Fla.1952, 61 So.2d 493.
. . . We think the appropriate rule is set forth in 6 Moore's Federal Practice ' 56.15(4), (2d ed. 1965), wherein it is stated:
'The general and well settled rule is that the court should not resolve a genuine issue of credibility at the hearing on the motion for summary judgment, whether the case be a jury or court case; and if such an issue is present the motion should be denied and the issue resolved at trial by the appropriate trier of the facts, where, to the extent that witnesses are available, he will have the opportunity to observe their demeanor. * * *' Sartor v. Arkansas Natural Gas Corp. (1944) 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967, 7 F.R.Serv. 56c.41. Id.
In Berlanti, summary judgment was denied because an interested person was the only one testifying against the deceased. When presented with this circumstance, the court refused to entertain a motion for summary judgment since the credibility of an interested person would be required. In the instant case, FLAG staff, interested persons, are the only ones testifying against the deceased, Lisa McPherson. Summary Judgment must therefore be denied. Id.
FLAG asserts that the prior order granting its motion for Summary Judgment on False Imprisonment, which order was substantially prepared by FLAG, establishes the facts for the balance of the case. This is not correct. Rule 1.510 (d), Florida Rules of Civil Procedure, states that a partial summary judgment establishes findings of fact only if the facts exist without substantial controversy. The prior partial summary judgment will be reversed on final appeal since it contains serious errors, primarily the weighing and deciding of hotly contested material issues of fact. The facts in substantial controversy precludes the instant summary judgment as well.
FLAG staff are members of the SEA ORG, who are Scientologists who execute a contract agreeing to devote one billion years of dedicated service to Scientology. Scientology dictates that all actions of Scientologists must benefit the greatest number of Scientologists. As will be discussed below, lying under oath would not be a crime in Scientology if it benefits the greatest number of Scientologists. Defendant, KARTUZINSKI, has admitted to lying twice to police and the state attorney to protect Scientology. Scientologist David Minkoff, M.D. who illegally prescribed injectable Valium twice for Lisa and prescribed chloral hydrate, a sedative, admitted that Defendant Janice Johnson lied to him about the physical condition of Lisa. Even Lisa McPherson has admitted to lying to fellow Scientologist. See Whitfield affidavit, appendix A1.
B. The Scientific Evidence On Lisa's Death and Prior Physical Condition.
Lisa died from a reversible medical condition, dehydration, not a psychiatric condition. While Scientology abhors psychiatric treatment, since it is in the business of providing an alternative to professional psychiatric care, it does not prohibit licensed medical care. On the day of her fender-bender, November 18, 1995, Lisa sought out the paramedics attending another car accident and agreed to go to Morton Plant Hospital where she further agreed to a cursory medical exam and two psychiatric exams. Of course at this time and days before this, Lisa was psychotic, unable to competently agree to anything. After a few hours she was released and was taken to the Ft. Harrison Hotel. 17 days later, Lisa was dead inside the Ft. Harrison Hotel.
The medical examiner, Joan Wood, M.D., first opined that Lisa died from a pulmonary embolus caused by severe dehydration and prolonged bed rest. After Scientology bombarded her with numerous medical journal articles, misleading test results of vitreous from SCIENTOLOGY's expert, and after she felt that her life and career depended on responding to this pressure, Dr. Wood changed the cause of death to pulmonary embolism caused by trauma to the popliteal vein.
Even after changing her opinion, Dr. Wood states she is ambivalent as to whether Lisa's death is medical neglect or homicide. (Appendix "2", p35 of June 1,2000 sworn interview to the state attorney).
Dr. Wood maintains that Lisa was indeed severely dehydrated with resulting coma (p32), and the manner of death was changed from undetermined to accident (p27). According to Dr. Wood, in the matter of Lisa's death, accident means medical neglect. (p35 & p56). Still, Dr. Wood believes that dehydration and immobility played a role in Lisa's death (p36). Therefore, without question the death of Lisa McPherson was not natural, it resulted from the handiwork of SCIENTOLOGY, not the fender-bender that occurred 17 days before her death.
Plaintiff's experts, Dr. John Coe, M.D., Calvin Bandt, M.D., and Werner Spitz, M.D., all board certified forensic pathologists have opined that Lisa was indeed severely dehydrated and that this was the cause of death. They find no error in the post mortem testing. Calvin Bandt, M.D., board certified in clinical and forensic pathology, in reviewing recent discovery in this case and of course all of the forensic evidence, has now opined that the manner of death is homicide. Nationally known board certified forensic pathologist, Werner Spitz, M.D., has opined that those attending to Lisa inside the hotel watched her die. (Appendix 3, Bandt Affidavit and Appendix 4, Spitz Affidavit). All of these experts have opined that Lisa would have been in an uremic coma for at least 5 days prior to death due to this level of dehydration. The timing of the onset of the uremic coma, based on the post mortem testing, coincides with the time the guards were no longer needed due to the staff's observation that Lisa was no longer violent or posed an escape threat.
All of the Estate's pathologists have further opined that Lisa did have bug bites on her body, antemortem and peri-mortem. Dr. Spitz has documented insect feeding sites on two autopsy microscopic slides. Appendix A5, at pp. 20-27, 73-74. The scientific evidence of the post mortem photographs of Lisa's body show 109 different cockroach feeding sites, mostly antemortem, per the board certified entomologist retained by the Estate, Neil Haskell, Ph.D. See attached excerpts from his deposition, Appendix 6, at pp. 238-239, and his diagram of feeding sites, Appendix 7, with special emphasis on the facial autopsy photograph. Appendix 8. This is in direct conflict with the affidavits and depositions of staff filed by Defendants.
Further, the most objectively reliable post mortem scientific testing is Lisa's vitreous fluid (eye fluid), even as conceded by SCIENTOLOGY'S own expert chemist, Dr Wu, Appendix 9 at 105:22-25. The multiple test results of the eye fluid directly conflicts with Flag's alleged eyewitness accounts. Dr. Wu recently testified that there was no hard evidence of errors in the first testing and third testing of the vitreous testing. However, he did say that the second testing by SCIENTOLOGY'S expert, Dr. Reiders, was not appropriate. Wu deposition at 17:1-2. While Dr. Wu testifiedthat the vitreous testing wasan incorrect reflection of what was present at the time of death, he conceded that he has never seen readings as high as that reported for Lisa. Dr. Wu offered no hard evidence that the test results were due to improper storage or testing at the medical examiner's office.
It is important to note that Dr. Wu testified that hehas no publications in vitreous testing. He also conceded that he wasnot an expert in the field of vitreous testing as the ESTATE's experts, Dr. Coe and Dr. Bandt. Wu at 38:22-24. The limitations of Dr. Wu'sopinions are underscored by the fact that over 99% of his work only involves testing on live people.
This scientific objective autopsy evidence unquestionably shows that Lisa died from severe dehydration as opined in the original death certificate before the immense personal pressure was exerted by SCIENTOLOGY upon the medical examiner, Joan Wood, M.D.
C. Scientology Staff Has Serious Credibility Issues.
In Scientology, anything, including lying, is permitted as long at the action involves benefiting the greatest good for the greatest number of Scientologists. See Appendix 10, Minkoff deposition excerpts at pp.133-136, and Kartuzinski deposition excerpt, Appendix 11 at pp.144-145, where he admits lying during the criminal investigation to protect Scientology.
Not only does the scientific objective testing directly conflict with the staff testimony, but the staffs' testimony conflicts with each other.
These attendant staffers gave daily regular reports to the immediate person in charge, KARTUZINSKI, as he admits at &14 of his affidavit, Exhibit 9 attached to FLAG's motion. However, the last 2 plus days of records are missing in their entirety and more are missing throughout the 17 days than have been produced. As a result of these missing daily reports, an inference is created that these reports contained favorable information to the ESTATE. Miller v. Allstate Insurance Co., 573 So.2d 24, 34 n.12 (Fla. 3d DCA 1990) rev. denied 581 So.2d 1307 (Fla. 1991). There are thousands of pages missing from Lisa's PC folders. See Whitfield affidavit, Appendix 1.
Even attendant Heather Hof Petzold admitted that Lisa wrote one or two letters to Kartuzinski at the beginning of her isolation, Appendix 12, at 99-100, and Heather wrote three reports during the last days of Lisa's life to Kartuzinski warning him of Lisa's health, at 10-11 and 36-37. Yet none of those writings has ever been produced! Could this be another instance of pulping of incriminating records as Scientology did in the Wollersheim case?
This evidence of homicide and watching her die directly conflict with the prior court's finding that the attendants acted in good faith with no intention to harm Lisa. Not only is the court not permitted to judge the credibility of interested persons, SCIENTOLOGY staff, but even considering the staff testimony, that testimony conflicts with the objective and reliable post mortem chemistry testing.
Attendant, Rita Boykin, who was with Lisa from 11-23-95 until she died, testified that Lisa was immobile prior to 8a.m. on 12-2-95. Appendix 14, at 142:15. However, attendant Laura Arrunada said Lisa was very active up till 12-4-95, where she says Lisa was f__king the floor. Appendix 15, at pp. 301:14 and 459:23.
Then we have Heather Petzold Hof, another attendant, who was with Lisa from 11-22-95 until she died. She claims in her new affidavit at '9, FLAG's exhibit 18, that Lisa walked to the bathroom by herself on 12-2-95. However in her statement to the prosecutor on 6-8-98, she said quite the opposite. There, Hof states Lisa's extremis medical condition was readily observable during the last several days of Lisa's life. See Appendix 12. On page 11:12 she begins by saying that the reports of the other attendant, Sylvia de la Vega, were not accurate as to how Lisa was doing. The reports are more about the watchers than Lisa. (p. 27:2). Heather was upset with Kartuzinski that he had received her reports and did nothing in response. (p36:24). She felt that her reports on Lisa should have prompted some reaction. (p37:4). Lisa was unable to walk 3-4 days before her death. (p57:24-p58:2). For sure, Lisa was unable to get out of bed the last 2 days of her life. (p60:2). Yet no one did anything to get Lisa to a hospital so that she could receive the medical care she desperately needed to keep her alive. In a normal 16 hour shift, Lisa was given 3-4 ounces of water, but she spit it out. (p62:2). She admits Lisa got weaker. Yet, nothing wasdone. (p 63:9). Heather and co-attendants talked among themselves that things were not going well for Lisa. Yet, nothing was done. (p83:10). Hof asked guards to get a response from Kartuzinski as to what to do. (p83:17-22). Lisa worsened so much that Heather stopped trying to give her water and food, because Lisa would spit it out or Heather and others would not be able to get Lisa to swallow. (p86:18). Hofadmits Lisa was held down by towels which produced marks on Lisa's wrists and ankles. (p97:6).
Hof's and Boykin's accounts differ from each other and dramatically differ from Arrunada's description of Lisa's activities and inability to eat and drink. Hof says she had to carry Lisa to her last bath, Appendix A12 at 39-40, while Boykin said Lisa walked to bath. Appendix 14 at 189-192. The conflict in testimony cannot be reconciled. Knowing that Lisa had taken a dramatic turn for the worse, at least during the last five days and not doing anything to get her proper medical care is outrageous!
Dr. Bandt has described the testimony of staff attendants with Lisa the last five days as pure fantasy, since the testimony directly conflicts with the objective scientific evidence. Arrunada claims Lisa is alive while she has Lisa in the bath in the afternoon of 12-5-95. Yet, Lisa's sphincter muscle is wide open. Appendix 15 at 33018. This physical condition means Lisa wasalready dead. Spitz, Appendix 5, at 63-64. Arrunada says Lisa had a pulse all the way to the hospital on 12-5-95. Appendix 15 at 375:19. However, chiropractor Greenwood said he never felt a pulse on the way to the hospital. Appendix 16 at 39-40.Thus, the credibility of the Scientology staff who participated in the watch over Lisa is in serious doubt.
Michael Rinder, chief of OSA, (the investigative arm of Scientology), and FLAG spokesman and its corporate representative at many depositions in this case, along with Elliot Abelson, Scientology's general counsel, stated in a television interview that Lisa did die inside the Ft. Harrison Hotel, while the defendants insist she died 45-50 minutes after leaving the hotel. See Appendix 17, court reporter transcript of television interview of Rinder. Staff watcher Arrunada, who has a medical education, testified that Lisa walked out of the hotel with help from her and Paul Greenwood, a former chiropractor, Appendix 15 at 363, while Greenwood states that he and Arrunada carried Lisa out of the hotel room to the van. Appendix 16 at 25-27.This episode involving Lisa cannot be subject to bad memory. No one could forget the events of taking a dead body to the hospital.
Attendant Boykin, who has a two year nursing degree, estimated Lisa's weight in the beginning of the watch at 140 lbs. Appendix 14 at 173. Portolano, the paramedic nurse at the car accident, estimated Lisa's weight at 150 lbs. Attendants reported that Lisa noticeably dropped weight.
See log dated November 30, FSO Bates #00149, where it is also noted that she is not eating. Appendix 19. Autopsy weight is 108 lbs. With this information, SCIENTOLOGY insists that Lisa lost no substantial weight. Another example of veracity issues under oath is Dr. Minkoff testifying that no one asked him to come see Lisa at the hotel and JANICE JOHNSON testifying that she asked him to come to the hotel and he refused. (Minkoff deposition, Appendix 10, p75 and Johnson deposition, Appendix 20, pp239-240, respectively).
Public Scientologist David Minkoff, M.D., a former defendant who settled with the ESTATE and the doctor with whom the defendants consulted about Lisa throughout her stay at the hotel, who never came to see Lisa alive, who illegally prescribed injectable Valium twice and chloral hydrate for Lisa without ever seeing her, and who supposedly ordered JANICE JOHNSON to take Lisa to the nearest emergency room on the date of her death, Appendix A10 at 89-90, establishes that staff Scientologist, JANICE JOHNSON, (former licensed anesthesiologist), even lied to him about the physical condition of Lisa on December 5, 1995, to such an outrageous degree that Minkoff read her the riot act after Minkoff pronounced Lisa dead at New Port Richey Hospital. (Appendix 10, p99:22-25.) Minkoff said Lisa could have diedinside the hotel.(p100:2-6.) In describing his reaction to seeing the physical condition of the dead body of Lisa and the fact that fellow Scientologist, Janice Johnson, had lied to him, Minkoff said:
D. Evidence of Lisa's Desire to Leave Scientology.
Even Lisa McPherson's letters to Captain Debbie Cook of FLAG, cannot be relied upon, since Lisa admits to lying to fellow Scientologists. See attached affidavit of the ESTATE's expert on Scientology, Hana Whitfield, filed under seal, which also discloses Lisa's admissions of wanting to leave Scientology since it was not working for her. Lisa was suicidal throughout 1995. Further, in the Kelly Davis deposition, Lisa's high school friend, Kelly states that Lisa had telephoned her one week before the November Isolation and implied that Lisa was leaving Scientology. See Davis deposition, Appendix 21, at page 16-17. So no matter what Scientologists relate about Lisa's dedication to Scientology, Lisa's own records, her phone call to Kelly Davis, and Lisa's own actions of asking a paramedic for help on November 18, 1995, and agreeing to two psych exams at Morton Plant Hospital, create material issues of Lisa relying on Scientology programs and her dedication to Scientology in November and December of 1995. As Judge Moody stated, a person can change his/her mind.
IV. THE LAW OF AINTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In order to state a cause of action for intentional infliction of emotional distress, also known as the tort of outrage or outrageous conduct, the plaintiff must demonstrate that: 1) the defendant acted recklessly or intentionally; 2) the defendant's conduct was extreme and outrageous; 3) the defendant's conduct caused the plaintiff's emotional distress; and 4) plaintiff's emotional distress was severe. Johnson v. Thigpen, ___ So.2d ___, 26 Fla. L. Weekly D1678 (Fla 1st DCA, 7-9-2001). See also, Johnson v. State Department of Health and Rehabilitative Services, 695 So.2d 927 (Fla 2nd DCA, 1997).
Defendants misstate Florida law on the necessity of proving intent for the tort of outrage. In Florida, following the majority rule, intent to cause emotional distress is not needed.
. . .that the majority rule, as set forth in the Restatement (Second) of Torts, Section 46(1) (1965), applies in Florida. The test is not the actual intent to inflict severe emotional distress, but whether or not the actor knows that such distress is certain, or substantially certain, to result from his conduct. The rule also applies where the action is in reckless disregard of a high degree of probability that emotional distress will follow.
Food Fair, Inc. V. Anderson, 382 So.2d 150 (Fla 5th DCA, 1980).
Whether or not Ford Motor Credit intended to inflict severe emotional distress is immaterial. Where the actor knows that such distress is certain, or substantially certain to result from his conduct, the rule applies. See comment *959 i to section 46. It also applies where he acts recklessly "in deliberate disregard of a high degree of probability that the emotional distress will follow." As section 46 makes clear, it is not necessary that bodily harm occur. If the conduct is sufficiently extreme and outrageous, there may be recovery for emotional distress alone, without such harm. See comment i. Moreover, while severe emotional distress must be proved, often the "character of the defendant's conduct is in itself important evidence that the distress has existed." See comment j.
Ford Motor Credit Company v. Sheehan, 373 So.2d 956 (Fla 1st DCA, 1979).
. . . Thus the Amendment (First Amendment) embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.[FN4] Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637.
Cantwell v. Connecticut, 310 U.S.296, 303-304, 60 S.Ct.900, (1940).
Actual intent to inflict severe emotional distress is immaterial. Reckless disregard is the equivalent of intent. Williams v. City of Minneola, 575 So.2d 683, 692 (Fla. 5th DCA 1991). In determining whether the element of outrage is established, the court must look at the evidence in the light most favorable to the alleged sufferer of emotional distress. Id.
As he testified in his deposition, Mark Mills, M.D., board certified psychiatrist,has opined that the actions and inactions of staff and those in charge of staff, evidenced a reckless disregard for the physical well-being of Lisa McPherson, which caused her severe emotional distress. (See Mills Affidavit, Appendix 22.) Those in charge had prior knowledge of Lisa's susceptibility to emotional distress from as early as February 1995 and in the summer, just three months prior to November 18, 1995. Those in charge, such as KARTUZINSKI, and the Scientologists who functioned as attendants knew that emotional distress was substantially certain. See Mills attached affidavit at Appendix 22.
The wrongdoer merely has to know that such distress is certain, or substantially certain, to result from his conduct. Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979), cert. dismissed, 379 So.2d 204 (Fla.1979) (creditor falsely represented that debtor's children had been seriously injured in order to locate debtor to repossess vehicle). Liability attaches when the defendant acts recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow. McAlpin v. Sokolay, 596 So.2d 1266, 1269 (Fla. 5th DCA 1992) (citing Restatement (Second) of Torts '46, comment (i) (1965). '46 of the Restatement.
The question of what constitutes outrageous conduct is an objective test. Ordinarily the issue is one of law to be resolved by the court, rather than a question of fact to be decided by a jury. Florida courts have found outrageous conduct in the following situations: Williams v. City of Minneola, 575 So.2d 683, 690-91(Fla. 5th DCA 1991) (the defendant disclosed photographs and videotape from the autopsy of plaintiff's dead son); McAlpin v. Sokolay, 596 So.2d 1266, 1268-69 (Fla. 5th DCA 1992) (hospital patient was verbally assaulted and threatened by a physician about a debt she owed to the physician's friend); Dominquez v. Equitable Life Assurance Society, 438 So.2d 58, 61-62 (Fla. 3d DCA 1983), approved, 467 So.2d 281 (Fla. 1985), (an insurer falsely accused the insured of fabricating his claim); Smith v. Telophase National Cremation Society, Inc., 471 So.2d 163, 166 (Fla 2d DCA 1985), (the defendant failed to dispose of a decedent's ashes in accordance with certain specific instructions).
In McAlpin v. Sokolay, 596 So.2d 1266, 1268-69 (Fla. 5th DCA 1992), the court found that the allegations of the complaint supported the plaintiff's argument that a jury, as the trier of fact, could find that the doctor's conduct was reckless and utterly outrageous in a civilized community. By verbally abusing and shouting at the plaintiff, the doctor acted in deliberate disregard of the high degree of probability that emotional distress would follow.
Outrageousness is more likely to be found where some relationship exists that gives the defendant actual or apparent authority over another or power to affect her interests. McAlpin, 596 So.2d at 1270 (citing Lashley v. Bowman, 561 So.2d 406, 409-10 (Fla. 5th DCA 1990)). The Defendants certainly had that power over Lisa, since they held her captive and were in total control of her.
Intentional infliction of emotional distress exists where the defendant is in a superior position to the employee and the defendant had reason to know that the employee is particularly susceptible. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999). The Restatement (Second), Torts, '46, cmts. e and f, (1965), recognizes that extreme and outrageous character conduct may arise from an abuse by an actor of a position... which gives him actual authority over the other and that conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of ... knowledge of special susceptibility.
Here we have the classic superior position of SCIENTOLOGY through Kartuzinski, Senior Case Supervisor, to the lowly public member, Lisa McPherson, with knowledge through his personal experience with Lisa beginning in 1995 and just a few months before in the summer of 1995 that she was particularly susceptible to emotional distress. It is obvious from his own affidavit attached to his motion that he is in a superior position with actual authority over her freedom from day one and he is receiving daily reports around the clock, as his affidavit indicates, detailing her rapid physical deterioration and increasing psychosis. This certainly can lead a jury to conclude that he and the other defendants are heartless, flagrant, and outrageous. Baird v. Rose.
Defendants claim they are hard pressed to find cases which uphold the finding of outrageous conduct. As expected, the defendants failed to cite nationally prominent cases which permit common law tort claims against established or new religions, which of course include cases involving Scientology. The first and most notable case is Wollersheim v.Church of Scientology of California, 212Cal.App.3d872,66 Cal.Rptr.2d 1(Ca. App., 1989), where the plaintiff did obtain a judgment against Scientology for intentional or reckless infliction of emotional neglect, i.e., outrageous conduct. Notably, the court recognized that a religion is not protected by the First Amendment if its actions are coercive. See section VI below.
V. SCIENTOLOGY'S RECORD EVIDENCE OF OUTRAGEOUS CONDUCT
If it is outrageous conduct for a doctor to yell at a patient for not paying another doctor's bill as in McAlpin, then surely the actions and inactions of Defendants are outrageous.
In section VI below, SCIENTOLOGY has a history of affirmed judgments finding outrageous behavior in the implementation of its programs, even though SCIENTOLOGY asserts religion as a defense.
It is the coerciveness of the programs which obliterates the religion defense. The test of whether there is outrageous conduct is whether the following recitation of the facts as to Lisa's isolation in a locked hotel room to an average member of the community would arouse his /her resentment against SCIENTOLOGY, and lead him/her to exclaim, Outrageous!: 
1. Watch Lisa bang her head against the headboard of the bed so hard that it could be heard outside her room; 
2. Letting Lisa play and walk in her own feces ;
3. Force feeding Lisa with a syringe while many people whom she did not know held her down while she struggled; 
4. Watching Lisa violently kissing and licking the floor for hours resulting in bruising on her body; 
5. Grabbing Lisa and bringing her back while she tried to leave the room, even before she became psychotic at the hotel per Kartuzinski; 
6. Boykin using two hands to open Lisa's mouth; 
7. Squirting capsules of sedative in her mouth without Lisa knowing what it was or who was doing it and why; 
8. Forced opening of Lisa's mouth and pouring in liquid; 
9. Cleaning feces and urine from Lisa where she lay, i.e., floor or bed, rather than in a shower; 
10. Keeping Lisa unclean with lack of proper hygiene, such as having only one shower prior to 12-5-95 and no shampoo at all, with hair real dirty, stringy, and greasy...skin and clothes not clean;  and
11. Cockroaches feeding upon her while she is alive and after she is dead, with the feeding sites present at least on Sunday, December 3, 1995. 
12. What was happening to Lisa was so violent that it did not come anywhere close to the program known as the Introspection Rundown.
On page 17 of the motion, defendants now state that the attendant guard logs go up to the day before Lisa died. If that is true, then Lisa died on 12-4, not 12-5 as they have been saying for the past six years. The date of the last guard log produced by defendants is dated 12-3. FSO bates number 153-155, by Rita Boykin. The last log is timed at 4:30 P.M., Sunday, December 3, 1995. See typed version of logs at Appendix 19. With this new admission, Lisa McPherson died on December 4, 1995. Every single Scientologist who has testified that she died on December 5, 1995 is therefore lying. It is interesting that there is not one log from the only medically trained physician who was with Lisa the last five, now four, days of her life, Laura Arrunada. While Boykin's log and testimony unquestionably show that Lisa never got out of bed from Friday night, December 1, 1995 until she was dead, Arrunada has testified that Lisa was f__king the floor on December 4, 1995, so much so that Lisa became extensively bruised all over her hips and thighs.
Who can argue that Lisa tried to leave the hotel room on the first day she was there? See attached log, Bates No. 156 which ends with these words: she tried to go out the door. New affidavits attached to the current motion allege that Lisa was not psychotic the first 2-3 days of her isolation. Then why did defendants stop her from leaving and why did Scientology conveniently lose or destroy many logs in the first week and thereafter of forced isolation? Who can argue, if anyone can believe defendant, Alain Kartuzinski, that Lisa became more psychotic two to three days after her arrival, which is two to three days after being subjected to Scientology isolation where no one is permitted to talk to her? This was Lisa's first and last experience of Scientology Isolation. Who can argue that Lisa's isolation was not coercive? According to the only person in the Medical Liaison Office who had experience with Isolation, Lisa's isolation was the most violent of which she had ever heard. (See Judy Goldsberry-Weber's deposition, Appendix 27 at 391-392.)
VI. RELIGION DOES NOT PROTECT OUTRAGEOUS CONDUCT.
Make no mistake, the complaint is not based upon any purported religious belief. The complaint is based upon action taken by the defendants, and in this particular count of outrageous conduct, the actions inflicted by these defendants are indeed intolerable in any civilized society. There is nothing religious about it. The actions imposed upon Lisa are not found in any writings of Scientology. The introspection Rundown does not mention
a. Being abandoned or recklessly disregarded as cockroaches feed upon you;
b. Forced medicated with illegally obtained prescription drugs;
c. Forced to eat or drink liquid with a syringe jammed in your mouth;
d. Intentionally not summoning professional medical help when your outward physical manifestations of extremis medical condition is evident;
e. Forcibly held down by many people so that you can't leave, leaving marks on your wrists from the restraints;
f. Locked up in a room with a guard at the door.
Is this a Scientology religious program? Rita Boykin, who joined Scientology in 1986, testified that she was never told Lisa was in the Introspection Rundown. Boykin never heard of this rundown. Appendix A14 at 44:18. Janice Johnson testified that she thought Lisa was just a hotel guest, no mention of this rundown. Boykin was simply told to watch Lisa. Boykin wrote the most notes of the watch, at least that is what has been produced. There was nothing peaceful about the practices or actions inflicted upon Lisa as the defendants urge this court to believe. There was nothing voluntary as Defendants insist. Lisa was very peaceful at Morton Plant Hospital. She was never combative or violent until she got to the hotel. This is very strong evidence of her lack of consent. Even if she consented to go to the hotel, which is highly disputed, she never consented to the treatment that was inflicted upon her. She never experienced this treatment before. Even the most experienced people in Scientology have testified that they never saw such a violent isolation watch. Weber deposition at 391. The actions taken by the defendants were to say the least inappropriate, over their head. The people ordered to watch Lisa had no idea what to do. They waited for orders from the defendants that never came. These defendants were responsible. They chose to do nothing. When Lisa would not cooperate, they chose to use force with at least nine people holding Lisa down until she gave up.
If Lisa were doing the Introspection Rundown, then why was there no mention of it in her files? No such program exists in her files as is required by Scientology rules. See attached affidavits of Hana Whitfield and Jesse Prince. Why does the experienced Medical Liaison Office nurse, Judy Goldsberry Weber, reporting to the Office of Special Affairs, the legal and investigative arm of SCIENTOLOGY, complain that what the attendants are doing to Lisa is illegal under Scientology programs and rules? See Weber deposition at 391-392.
Finally, even if Lisa and her attendants were engaged in the Introspection Rundown, which they were clearly not, this rundown is not a religious practice. See attached affidavit of noted theologian, Stephen A. Kent, Ph.D., with previously filed Memorandum of Law in opposition to Religiosity Motion for Summary Judgment, which motion was previously denied by the court, Appendix 28. The steps of 0 and 00 are purely physical, not spiritual. See Whitfield affidavit, Appendix 1.
Defendants' cowardice to confront its liability for its outrageous conduct against Lisa McPherson is no more evident than in their failure to cite and distinguish the notable case of Wollersheim v. Church of Scientology, 260 Cal.Rptr. 331 (Cal.App.2 Dist. 1989), where Scientology was held liable for its outrageous conduct against one of its own, Lawrence Wollersheim. The court upheld the jury's finding that the church's conduct was manifestly outrageous in that the church and its agents coerced Wollersheim into continuing auditing although his sanity was repeatedly threatened by this practice and Wollersheim was compelled to abandon his wife and family through the policy of disconnect. When his mental illness reached a state that he actively planned suicide, he was forbidden to seek professional help and then subjected him to financial ruin through its policy of fair game when he was actually able to leave the church. All of these acts exceed the bounds of decency. These acts warrant liability unless it is constitutionally protected religious activity. At 337.
The free exercise clause in the U.S. Constitution provides only limited protection for the expression of those beliefs and especially actions based on those beliefs. Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903-904, 84 L.Ed. 1212 (1940), freedom of belief is absolutely guaranteed, freedom of action is not. Thus government cannot constitutionally burden any belief no matter how outlandish or dangerous. But in certain circumstances, it can burden an expression of belief which adversely affects significant societal interests. To do so, the burden on belief must satisfy a four-part test: First, the government must be seeking to further an important- and some opinion suggested compelling - state interest. Secondly, the burden on expression must be essential to further the state interest. Thirdly, the type and level of burden imposed must be the minimum required to achieve the state interest. Finally, the measure imposing the burden must apply to everyone, not merely to those who have a religious belief; and that is, it may not discriminate against religion. The straight forward exposition of three prongs of this test is found in U.S. v. Lee, 455 U.S. 252, 267-268, 102 S.Ct. 1051, 1055-1056, 71 L.Ed.2d 127 (1981), The state may justify a limitation on religious liberty by showing that it is essential to accomplish an over-riding governmental interest.
In reference to Wollersheim, the court must ask the fourth question and that is Did he participate in this course of conduct voluntarily or did Scientology coerce his continued participation through the threat of serious sanctions if he left the religion? In Wollersheim, the parties had stipulated that it was a religion. Whether or not it is a religion remains a very live and interesting question. At 341. Referring to Founding Church of Scientology v. U.S., 409 F.2d 1146, 1160-61, (D.C. Cir. 1969); Founding Church of Scientology v. Webster, 802 F.2d 1448, 1451 (D.C. Cir. 1986). The court concluded at 343 that the freedom of religion of the state of federal governments' guarantees do not immunize the Church of Scientology from civil liability from injuries caused to these targets such as Wollersheim.
Neither Florida's RFRA, Florida's right of privacy, or the Religion clauses of the United States Constitution gives protection to defendants' tortious conduct. Florida's RFRA does not create any new test that was not already dealt with in Cantwell, Lee, or Sherbert v. Verner, 374 U.S. 398 (1963), or Wisconsin v. Yoder, 406 U.S. 205 (1972).
Scientology insists that what they inflicted upon Lisa was as peaceful as a Catholic confession or catechism class! Since when can anyone recall guards at a locked confessional and nuns holding down the parishioner to inject drugs through a syringe? Another spin of the truth.
While the United States Constitution protects the right to believe in one's religion, once that belief is put into action, the governmental interest to protect life and health steps in. It has therefore been held by the United States Supreme Court that freedom of belief is absolutely guaranteed, freedom of religious action is not. Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903-904, 84 L.Ed. 1212 (1940),
On the other hand, in some instances even the First Amendment, were it to apply, would not insulate a defendant religious organization or its members from liability. The Supreme Court has recognized that the First Amendment's protection "... embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 1940, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213. Thus even if we were to find that the California Church is a religious institution, the free exercise clause of the First Amendment would not immunize it from all common law causes of action alleging tortious activity. Turner v. Unification Church, D.R.I., 1978, 473 F.Supp. 367, 371, aff'd, 602 F.2d 458 (1979). Nor does the First Amendment exempt religious groups from all regulatory statutes. See, e.g., United States v. Lee, --- U.S. ----, 102 S.Ct. 1051, 71 L.Ed.2d 127, 1982; Heffron v. International Society for Krishna Consciousness, 1981, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298; Prince v. Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Reynolds v. United States, 1878, 98 U.S. 145, 25 L.Ed. 244; The *1135 Founding Church of Scientology of Washington v. United States, 1969, 133 U.S.App.D.C. 229, 409 F.2d 1146; Mitchell v. Pilgrim Holiness Church Corp., 7 Cir. 1954, 210 F.2d 879, cert. den. 1954, 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136. Whether or not such immunity exists depends, in part, on whether the adjudication of the claim would require a judicial determination of the validity of a religious belief, United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 and, if not, on whether application of the regulation "is the least restrictive means of achieving some compelling state interest." Thomas v. Review Board of the Indiana Employment Security Division, 1981, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624. See also Sherbert v. Verner, 1963, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965; West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Cantwell v. Connecticut, 1940, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213. Causes of action based upon some proscribed conduct may, thus, withstand a motion to dismiss even if the alleged wrongdoer acts upon a religious belief or is organized for a religious purpose. (Emphasis added).
Van Schaick V. Church of Scientology of California, Inc. 535 F.Supp. 1125 (Mass. D. 1982).
In Van Schaick, the court held that liability for intentional infliction of emotional distress through church doctrine is not prevented by the religion clause of the First Amendment. Further, as in Wollersheim, the court need not address the truth or falsity of alleged church doctrine to decide if the tort of outrage is proved. Thus the Ballard prohibition of entanglement with religion by state action does not appear.
Should any church seek to resurrect the inquisition in this country does any one doubt that the American government has the authority under the Constitution to halt the torture and execution. Should anyone seriously question the right of victims of our hypothetical modern day inquisition to sue their tormentors for any injuries, physical or psychological, they sustained.
Wollersheim, at 341.
However, while religious belief is absolutely protected, religiously motivated conduct is not. (Sherbert v. Verner (1963) 374 U.S. 398, 402-403, 83 S.Ct. 1790, 1793, *1113 10 L.Ed.2d 965;People v. Woody (1964) 61 Cal.2d 716, 718, 40 Cal.Rptr. 69, 394 P.2d 813.) Such conduct "remains subject to regulation for the protection of society." (Cantwell v. Connecticut, supra, 310 U.S. at p. 304, 60 S.Ct. at p. 903.) Government action burdening religious conduct is subject to a balancing test, in which the importance of the state's interest is weighed against the severity of the burden imposed ***133 on religion. (Wisconsin v. Yoder, supra, 406 U.S. at p. 214, 92 S.Ct. at p. 1532.) The **57 greater the burden imposed on religion, the more compelling must be the government interest at stake. (Compare Wisconsin v. Yoder, supra, 406 U.S. at pp. 221-235, 92 S.Ct. at pp. 1536-43 [government's strong interest in educating citizens insufficient to justify educational requirement that threatened continued survival of Old Order Amish communities], with Goldman v. Weinberger (1986) 475 U.S. 503, 508, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 [government's reasonable interest in uniform military attire sufficient to justify mild burden on religious expression created by ban against Jewish officer wearing a yarmulke].) A government action that passes the balancing test must also meet the further requirements that (1) no action imposing a lesser burden on religion would satisfy the government's interest and (2) the action does not discriminate between religions, or between religion and nonreligion. (Braunfeld v. Brown (1961) 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563.)
Applying these criteria, the Supreme Court has allowed some religious conduct to be banned entirely (see, e.g., Reynolds v. United States (1878) 98 U.S. 145, 166, 25 L.Ed. 244 [upholding law against polygamy]; Prince v. Massachusetts (1944) 321 U.S. 158, 170-171, 64 S.Ct. 438, 444, 88 L.Ed. 645 [permitting state to prohibit parents from allowing their children to distribute religious literature when necessary to protect children's health and safety]), and some conduct to be compelled in the face of religious objections (see, e.g., Jacobson v. Massachusetts (1905) 197 U.S. 11, 38, 25 S.Ct. 358, 366, 49 L.Ed. 643 [upholding compulsory vaccinations for communicable diseases]; United States v. Lee (1982) 455 U.S. 252, 261, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127 [upholding mandatory participation of Amish in Social Security system]).
Other religious conduct, though not banned, has been restricted. (See, e.g., Heffron v. International Society for Krishna Consciousness (1981) 452 U.S. 640, 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 [upholding law restricting sale and distribution of literature and soliciting of funds at state fair to booths at specified locations]; Cox v. New Hampshire (1941) 312 U.S. 569, 575, 61 S.Ct. 762, 765, 85 L.Ed. 1049 [upholding license requirement for religious parades].) Still other religious conduct, though not banned or restricted, has been made more costly. (See, e.g., Braunfeld v. Brown, supra, 366 U.S. 599, 605, 81 S.Ct. 1144, 1147, [upholding Sunday *1114 closing law in spite of financial burden on Orthodox Jew who must refrain from working Saturday as well]; Bob Jones University v. United States (1983) 461 U.S. 574, 604, 103 S.Ct. 2017, 2035, 76 L.Ed.2d 157 [upholding denial of tax-exempt status to private school practicing religiously motivated racial discrimination]; Tony and Susan Alamo Foundation v. Secty. of Labor (1985) 471 U.S. 290, 305, 105 S.Ct. 1953, 1963, 85 L.Ed.2d 278 [holding minimum wage laws applicable to religious groups].)
While judicial sanctioning of tort recovery constitutes state action sufficient to invoke the same constitutional protections applicable to statutes and other legislative actions (New York Times v. Sullivan (1964) 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686), religious groups are not immune from all tort liability. It is well settled, for example, that religious groups may be held liable in tort for secular acts. (See, e.g., Malloy v. Fong (1951) 37 Cal.2d 356, 372, 232 P.2d 241 [religious corporation liable for negligent driving by employee].) Most relevant here, in appropriate cases courts will recognize tort liability even for acts that are religiously motivated. (See, e.g., O'Moore v. Driscoll (1933) 135 Cal.App. 770, 778, 28 P.2d 438 [allowing priest's action against his superiors for false imprisonment as part of their effort to obtain his confession of sins]; Bear v. Reformed Mennonite Church (1975) 462 Pa. 330, 341 A.2d 105, 107 [allowing action for interference with marriage and business interests when church ordered congregation to "shun" former member]; Carrieri v. Bush (1966) 69 Wash.2d 536, 419 P.2d 132, 137 [allowing action for alienation of affections when pastor counselled woman to leave husband who was "full of the ***134 devil"]; Candy H. v. Redemption Ranch, Inc. (M.D.Ala.1983) 563 F.Supp. 505, 516**58 [allowing action for false imprisonment against religious group]; Van Schaick v. Church of Scientology of Cal., Inc. (D.Mass.1982) 535 F.Supp. 1125, 1135 ["[c]auses of action based upon some proscribed conduct may, thus, withstand a motion to dismiss even if the alleged wrongdoer acts upon a religious belief or is organized for a religious purpose"].)
Molko V Holy Spirit Association for the Unification of World Christianity, 762 P.2d 46, 46 Cal.3d 1092 (Ca. 1988).
KARTUZINSKI, JOHNSON, counsel for FLAG, and FLAG's admissions in this case establish that Lisa was only a mere hotel guest who was not involved in religious services. Only in his deposition in this case does KARTUZINSKI conveniently state that Lisa was seeking religious services, claiming that he lied twice in the criminal investigation in order to protect Scientology. (Appendix 11, p144:19-22). His affidavit is the only one not under oath.
Further evidence of KARTUZINSKI lying now rather than previously to law enforcement is the record evidence that Defendant, JOHNSON of the MLO with KARTUZINSKI's approval, was calling every nursing home and assisted living facility in the yellow pages only 6 days after Lisa's arrival at the hotel. This concedes that Lisa needed medical treatment, not spiritual treatment, which FLAG staff was not able to provide. This supports the count for outrageous conduct: knowing one is totally incompetent to handle Lisa, yet blindly continuing the same conduct, knowing it is not working. These facilities were not associated with Scientology. Hence, no Scientology religious services would have been provided at these facilities. Nevertheless, all facilities refused to take Lisa. (Appendix "20" pp174:23-178:12).
There is no record evidence that Lisa ever said she wanted to go to the hotel for religious services. The late affidavit by Weber saying Lisa wanted auditing is contrary to Weber's deposition and state attorney interview testimony. In addition to KARTUZINSKI's two statements to law enforcement and the state attorney denying Lisa was at the hotel for religious services, there is also record evidence from Janice Johnson that Lisa was not at the hotel for religious services. In this case JOHNSON has admitted she did not know Lisa was in the hotel for a program entitled Introspection Rundown, maintaining in her deposition that Lisa was a mere hotel guest.
13 What I thought then was that she was not on
During her state attorney interview, JOHNSON also testified that Lisa was a mere hotel guest.
Johnson: The Church doesn't treat mental illness at all ... I mean...she did the usual thing. If you think somebody's mentally ill, then they go and get evaluated. You see...the point ...of Scientology isn't to treat physical or mental illness...Its strictly for spiritual gain. So it's not like a Christian Scientist ... Our guidelines is that ...if you are sick, you get treated...you get physically taken care of ...it's not like Christian Science where you avoid all medical treatments... you're supposed to depend on faith to heal you or something. That's not what's going on." (At page 59).
(Appendix 29, Johnson police interview excerpts.)
FLAG's counsel also denied in writing to the police that Lisa was at the hotel for religious services. On January 22, 1997, attorney Sandy Weinberg, counsel for Flag in this case and the related criminal case, also wrote a letter to the Clearwater Police Department stating that Lisa McPherson was not at the Ft. Harrison for religious services:
"you have also asked for the person who was in charge of Lisa's stay at the hotel in November and early December. Lisa was not at the hotel for services and therefore there was no auditor or case supervisor from the Church in charge. However, Alain Kartuzinski and Janice Johnson periodically received information on her status. (emphasis added). (Appendix 30.)
In FLAG's Response to Plaintiff's Request For Admissions, FLAG denies that Lisa was at the hotel for religious services from November 18, to December 5, 1995. (See attached Appendix 31). No one could possibly conclude that there is no substantial controversy over the issue of whether Lisa was participating in religious services at the hotel. She clearly was not.
The only reason offered by the defendants in not calling an ambulance is that they were concerned Lisa would be forced into a psychiatric ward. There is no evidence to support this nonsensical position. Lisa had a serious medical condition, which was obvious. Defendants concede that everyone knew that Lisa's mental condition was worsening day after day, and at least two staffers watching her admitted that they knew her physical condition was worsening and what they were doing was not helping. Bringing in a medical doctor is pursuant to Scientology tech, what they did to Lisa is not. See Whitfield affidavit. This is outrageous!
7 . . .if the person's
Appendix A32, Dr. Gorelick of Morton Plant Hospital, at 31.
16 you would bring the person
Appendix A33, Mills at 253-254.
18 . . . I mean it would have been very easy
Mills at 261.
Contrary to the unsworn articles impermissibly cited by defendants, the testimony in this case is that if Lisa was timely brought to a hospital in a psychotic state, she would not be subject to ETC.
Dr. Gorelick, M.D. psychiatrist at Morton Plant Hospital, at page 23.
16 I think the lay person knows
Mills deposition at 225.
4 involuntary commitment for a night of
Mills deposition at 170.
3 . . . The overwhelming
Mills at 114.
The essence of the defendants' Motion for Summary Judgment is that the staff meant no harm, tried their best to encourage her to eat, drink, and rest, would have summoned emergency help if they thought Lisa needed it, and saw no roaches in the room. In order to prevail on their motion, the defendants require this court to rely on the testimony of Scientology staff, all of whom are interested persons. As such, this court is not permitted to accept their testimony ascredible. Only the trier of fact can judge the credibility of interested persons. Therefore, the motion must be denied.
The tort of outrage is the obviousness of her declining medical condition with the obvious failure of the plan or action, which in reality is no plan at all. Lisa's emotional condition was aggravated day after day until she became violent and more psychotic. Attendants were giving her herbs of all kinds, chloral hydrate, Benadryl, aspirin, protein powder, protein shakes, little free water all leading to her dehydration, aggravating her psychosis. The attendants made water available, or encouraged her to drink, but she did not. She needed professional help.
The Plaintiff hopes that this court does not commit the same reversible errors committed by the prior trial court, i.e., simply adopting the proposed order of defendants and ignoring serious evidentiary impediments to reaching findings of fact. The Dead Man statute, the hearsay rule, and more importantly, the questionable testimony of Scientologists, some admitted liars, totally prevent the entry of summary judgment on any issue.
The position of the defendants can be summed up as thus: believe us and only us, disregard the autopsy photographs, disregard the twice tested post mortem chemistries, disregard the physical findings in the autopsy, and disregard the testimony of the plaintiff's experts. In doing so, defendants hope that the court will ignore all of the evidence showing a non-violent Lisa McPherson at the Morton Plant Hospital, one who could answer questions, walk out of the hospital and be driven to the Ft. Harrison Hotel, but who soon after arriving at the hotel inexplicably turns extremely violent, incontinent of urine and feces, spits out food and water until she drops into an uremic coma brought on by severe dehydration. Yes, defendants hope that this court would believe that all of this happened unexpectedly while the defendants stood by and cared for Lisa.
Hopefully this court will see through the spin of the truth manufactured by the defendants. Something the other court failed to do.
The court concluded in Wollersheim that their actions of fair game in subjecting him to the mental torture would not be protected religious activity even if Wollersheim fully participated. At 338. The court concluded in Wollersheim, that the freedom of religion guarantees of U.S. and California Constitutions do not immunize these practices from civil liability for any injuries caused to targets such as Wollersheim. At 343
Should any church seek to resurrect the inquisition in this country does any one doubt that the American government has the authority under the Constitution to halt the torture and execution. Should anyone seriously question the right of victims of our hypothetical modern day inquisition to sue their tormentors for any injuries, physical or psychological, they sustained. Wollersheim, at 341. The religious program loses it religious significance when it is coerced and inflicted on citizens. At 346.
KENNAN G. DANDAR, ESQ. DANDAR &
I HEREBY CERTIFY that the original has been furnished by courier this 5th day of September, 2001, to the court and by courier on the 6th day of September, 2001, a true and correct copy of the foregoing to lead counsel for each party on the attached Service List.
KENNAN G. DANDAR, ESQ.
 Dr. Wu concludes that the test results do not reflect the real condition of Lisa McPherson at the time of death because he does not know what effect a delay of 13 hours from death to extraction of the body fluids at autopsy would have on the elements, the analytes, being tested, due to his lack of experience. He also concedes that the staff testimony of the condition of Lisa McPherson during the last five critical days does not agree with the test results. At 46:7-9. Vitreous Creatinine and Potassium from the 1996 Wuesthoff hospital test to the 1999 St. Anthony Hospital test are consistent. Wu at 71:22-73:13. But due to his inexperience he could not explain the difference in the urea between the two tests. Dr. Wu does concede that the medical examiner techs followed their acceptable procedure. Wu at 79:12-16. He opines that the storage at the medical examiner's freezer over 4 years may effect the test results by more than 10% to less than 20%. Wu at 90:12-20. Even if that is true, Lisa is still dehydrated. Finally, he agrees that if the test results are a reflection of her condition at the time of death, Lisa would have been in a coma during the last several days of her life, just as the ESTATE's experts have opined.
 Dr. Minkoff, involved in Lisa's care, testified that lying is permissible in Scientology when it is the Agreatest good for the greatest number... At 133-136.
 See Wollersheim v. Church of Scientology, 260 Cal.Rptr. 331 (Cal.App. 2d 1989), where the court found records of Wollersheim, his PC folders, had been shredded and then pulped after a request to produce was served and then again after an order to compel was entered. Also See Jesse Prince Affidavit concerning Lisa's PC Folders, Appendix 13.
 Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 279 (Fla. 1985)
 Barcenas deposition at 73:22.
 Id. at 96:22.
 Schamehorn statement at 80:15, Petzold deposition at 76:23 and others.
 Arrunada deposition at 459:23.
 Arrunada recorded statement, 48:01, Appendix 34; Stevens statement at 43:06, Appendix 35; Greene first log, Bates number: FSO 00156, and others.
Petzold deposition at 86:16. (Appendix 25)
 Id at 115:17.
 De La Vega deposition at 56:11. (Appendix 26)
 Id. at 107:05.
 Petzold at 181:20, 183:05, Appendix 25; Nurse Schmid deposition at 8:2, Appendix 23, Lisa was unkempt and dirty upon arriving dead on arrival at hospital.
 Haskel, Ph.D. deposition at Appendix 6; Dr Spitz deposition at Appendix 5 at 23-27, 73-74, Dr. Bandt deposition at Appendix 24 at p. 60, with attendant Arrunada deposition at Appendix 15 at 332:12, claiming the marks appeared on Sunday, December 3, 1995.
 See Whitfield affidavit, Appendix A1 at O and P and Weber deposition, Appendix A27 at 391-392.
 Defendants make a specious argument that what Lisa experienced in the summer of 95 was similar to November-December 1995. If only that were true, this case would not exist. What Lisa did in the summer was not Scientology Isolation per Kartuzinski. Appendix 11 at 69:23. 1 Hof, Appendix 18, AT 112-115, and De La Vega, Appendix 26 at 57-58.
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