Order Denying Summary Judgement
on Count 5

20 August 2002


the Personal Representative, DELL LIEBREICH,

VS. Case No. 00-5682-CI
Section 11




This cause came on to be heard on the Defendants’ Motion for Summary Judgment on Fifth Cause of Action (Negligence Survival Claim). The Plaintiff filed a response thereto styled Amended Plaintiffs Response to Defendants’ Motion for Summary Judgment on Wrongful Death and Negligence. The Defendants filed a Reply Memorandum in Support of Motion for Summary Judgment on Fifth Cause of Action (Negligence Survival Claim). It was agreed that this court could rule on this motion without further hearing. After having read the motion, the Plaintiffs response, and the Defendants’ reply, and being otherwise thoroughly advised, this court denies the Defendants’ Motion based on the following analysis.

A motion for summary judgment requires that there be no genuine issue as to any material fact and that the moving party is therefore, entitled to a judgment as a matter of law. See Fla. R. Civ. Proc. 1.510, and cases too numerous to cite. In this case, there are many genuine issues of material fact. One such issue is the cause of Lisa McPherson’s death, which has been hotly contested since this litigation began over 5 years ago. Thus, as a pure summary judgment motion, it seems that this motion must fail. However, since it is always confusing to this court whether matters such as those the Defendants raise in this motion should be raised in a motion to dismiss, a motion for judgment on the pleadings, a motion to strike, or a motion for summary judgment, this court will discuss the two theories the Defendants raise in their motion. As will be seen, this court would deny not only this motion, but also any of the others discussed above based on the two theories raised. In other words, neither merger nor the First Amendment will prohibit the Plaintiff from proceeding on Count V of the complaint.


The first theory the Defendants raise as to Count V is one of merger. Defendants suggest that Count V, the survival count, merges with Count I, the wrongful death count. They suggest that since the Plaintiff is proceeding to trial based on the theory of her forensic pathologists and other experts that Lisa was severely dehydrated, and this dehydration was the ultimate cause of her death, the Plaintiff cannot turn around in Count V, and allege the same basic facts as in Count I, but conclude the opposite—that the severe dehydration did not cause her death. Since severe dehydration is the cornerstone of the Plaintiffs wrongful death count, the Defendants say that F. S. §768.20 precludes the survival action under F. S. §46.02 1, based on the same dehydration.

The Defendants’ merger theory has been decided contrary to the Defendants’ position. The cases cited below show that mutually exclusive alternative theories of negligence and wrongful death may be pled in the same action. The two claims being mutually exclusive, however, the jury must be instructed that a finding in favor of the Plaintiff on either claim precludes the other claim being considered. In reading the Plaintiffs answers to additional interrogatories, it sounds as if the Plaintiff may think that she can recover damages on both counts I and V. However, the case law makes it quite clear that she cannot. See Smith v. Lusk, 356 So. 2d 1309 (Fla. 2d DCA 1978); Williams v. Bay Hospital, Inc. 471 So. 2d 626 (Fla. 1st DCA 1985); Poole v. Tallahassee Memorial Hospital Medical Center, Inc., 520 So. 2d 627 (Fla. 1st DCA 1988); Diamond v. Whaley, Chapman & Hannah, MD. ‘s, P. A., 550 So 2d 54 (Fla. 2d DCA 1989).

The way this will work, stated simply, is as follows: If the jury believes that the Defendants allowed Lisa McPherson to become severely dehydrated, and she died because of it, the defendants will be responsible for compensable damages due to causing Lisa s wrongful death, but will not be responsible for any survival damages. If, however, the jury determines that the Defendants allowed Lisa McPherson to become dehydrated, but she did not die from severe dehydration, but something else, (such as a pulmonary embolism, as contended by the Defendants), but that nonetheless the Defendants’ gross or culpable negligence, while not causing death, nonetheless caused Lisa McPherson to suffer injuries for which she is entitled to compensable damages, the Defendants will be responsible for those damages, but will not be responsible for any damages due to her wrongful death. Of course, if the Defendants intentional or negligent actions or inactions neither caused injuries nor death to Lisa McPherson, no damages under either Counts I or V will be allowed. Although there are issues involved which must be answered by the jury other than those mentioned in this simple explanation, perhaps this will help the attorneys understand where this court is coming from on this issue. In the event this case goes to trial, the attorneys should prepare a jury instruction similar to that given in Poole, @629.


The second theory the Defendants raise as to Count V is that the First Amendment and Florida’s Religious Freedom Restoration Act (“RFRA”) operate as a bar to any


recovery of damages on Count V. The case principally relied on by the Defendants is Baumgartner v. First Church of Christ Scientist, 490 N. E. 2d 1319 (Ill. 1st DCA 1986). This case is not persuasive to this court for several reasons. Two of those reasons bear further discussion here.

First, Baumgartner involves the Christian Science religion, and as the opinion states from the outset, “Its (Christian Science) basic premise.. .is that physical disease can be healed by spiritual means alone.” Baumgartner @ 1321, parenthetical and emphasis mine. This is not a basic tenet of the Church of Scientology. The Church of Scientology has no prohibition for seeking medical attention for a medical problem. The Church of Scientology’s basic premise is that mental disease can be healed by spiritual means alone.

Second, Baumgartner involved a competent adult Christian Scientist, who chose to undergo Christian Science treatment for a medical problem--acute prostatitis. Illinois law permits a competent adult to reject medical care. Lisa McPherson was a Scientologist, who may have been a competent adult on November 18, 1995. She was suffering from a mental condition. In accordance with her religious beliefs, she apparently agreed to treat her mental condition using Scientology methods. However, she had every reason to believe that if she developed a medical problem, and she was too incompetent to take herself to the doctor or hospital for treatment, the Church, through its agents, would see to it that she received medical treatment, as there is no Scientology prohibition against medical doctors or medical treatment (other than mental health treatment by psychiatrists, and the like), or hospitals (other than at an asylum or other like mental facilities). Indeed, the Defendants insist that when they became aware of Lisa’s acute medical condition, they attempted to take her to a medical doctor at a hospital for medical treatment. Unfortunately, she apparently died in route before any medical treatment could take place.

Additionally, after the first day of Lisa’s stay at the Ft. Harrison Hotel, where the Church is located, Lisa was no longer a competent adult, but a severely psychotic and incompetent adult, and unable to take care of her own medical needs. This fact is one of the few facts in this case that does not appear to be in controversy. For a case that discusses the inapplicability of Baumgartner to a child treated by Christian Science methods, see Lundman v. McKown, 530 N. W. 2d 807, 827 (Minn. App. 1995). Lisa McPherson, from November 19, 1995, the second day of her stay, until her death on December 5, 1995, was more like the child in Lundman, rather than like the competent adult in Baumgartner.

Recently, the Florida Supreme Court has had the opportunity to address negligence claims against a Church. See Malicki v. Doe, 814 So. 2d 347 (Fla. 2002), and Doe v. Evans, 814 So 2d 370 (Fla. 2002). The Plaintiff in her response, and the Defendants in their Reply Memorandum discuss Malicki. Neither discusses Doe v. Evans. The Defendants say, in trying to distinguish Malicki, “The clergy malefactors in such cases were charged with intentionally· carrying out criminal acts having nothing to do with religious services or beliefs.” Defendant’s Reply Memorandum, p. 5. Unfortunately, this may be wishful thinking. Doe v. Evans does not involve a criminal


act on the part of the clergy, and the Florida Supreme Court quashed the holding of the Fourth District Court of Appeal that said a criminal act is necessary to impose civil liability for negligence. See the opinions of both Malicki and Evans. While the acts of the clergy are unclear in Evans, they involved “romantic involvement”, which the Court determined to be a “sexual relationship.” See Doe v. Evans ~ 373 fn2. However, regardless of what the non-criminal acts of the clergy were, they were done in conjunction with carrying out marital counseling, which was part of the religious services offered by the Defendant church.

There is no question in this court’s mind that the opinions of the majority in both cases go far beyond that which is suggested by the Defendants. One need only read Justice Quince’s concurring opinions in each case to see how far she says the majority goes in the two cases. In Malicki, Justice Quince says, “Today’s opinion simply holds that when religious organizations undertake to provide services to the public, they have a duty to protect the citizens who use those services from the tortious conduct of their employees.” Malicki, Quince, J., concurring @ 367. In Evans, which unquestionably is an extension of Malicki to non-criminal acts, Justice Quince says, “[T]he dissent’s views in this case place the protection of religious institutions over the protection of innocent victims of sexual and other abuse.” Evans, Quince, J., concurring @ 377, emphasis mine. This, of course, suggests the majority does not place the protection of religious institutions over the protection of innocent victims of sexual and other abuse, which I believe, based on the decisions, would include that alleged in this case, which is failing to obtain necessary medical care for an alleged severely dehydrated person who has submitted herself to the care, custody and control of the Church, and its agents, and who is otherwise unable to obtain such necessary medical care for herself

Thus, while I might have agreed with the Defendants’ First Amendment argument in the negligent survival count previously, I cannot do so after Malicki and Evans. These cases may be troublesome to church leaders, and to First Amendment lawyers, and indeed, Evans may be troublesome to this court. But these two cases are the latest pronouncement of the Florida Supreme Court on the issue of a Church, and its agents’ liability for negligence, and, of course, they must be followed. It is my opinion, based on the two recent cases of the Florida Supreme Court cited above, that the Church of Scientology, Flag Service Organization, and its agents, Kartuzinski, Johnson, and Houghton, may be held to answer for their negligent, as well as their intentional torts, if any, committed against Lisa McPherson.

For all of the above reasons, it is hereby,

ORDERED AND ADJUDGED that the Defendants’ Motion for Summary Judgment of Negligence Survival Claim (Count V) is denied.


DONE AND ORDERED in St. Petersburg, Pinellas County, Florida this 20th day of August, 2002.

Susan F. Schaeffer, Circuit Judge

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