Lisa McPherson v Flag

Hearing re Scientology's Motion for Summary Judgment on Negligence

30 December 2002 - PM Session


Informal summary

                                  KANABAY COURT REPORTERS
                        TAMPA AIRPORT MARRIOTT HOTEL (813) 224-9500
                        ST. PETERSBURG - CLEARWATER (727) 821-3320


                    IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
                            IN AND FOR PINELLAS COUNTY, FLORIDA
                                      CIVIL DIVISION
                                  CASE NO. 00-5682-CI-11


                ESTATE OF LISA McPHERSON, by
                and through the Personal
                Representative, DELL LIEBREICH,

                               Plaintiff,

                vs.

                CHURCH OF SCIENTOLOGY FLAG
                SERVICE ORGANIZATION, JANIS
                JOHNSON, ALAIN KARTUZINSKI,
                and DAVID HOUGHTON, D.D.S.,

                               Defendants.


                _____________________________________/


                PROCEEDINGS:         CHURCH'S MOTION FOR SUMMARY JUDGMENT
                                     ON NEGLIGENCE
                                     VOLUME 2 - P.M. SESSION

                BEFORE:              The Hon. Susan F. Schaeffer
                                     Circuit Court Judge

                DATE:                December 30, 2002
                                     1:30 - 2:00 p.m.

                REPORTED BY:         Debra S. Turner
                                     Registered Diplomate Reporter

                PLACE:               St. Petersburg Judicial Building
                                     545 First Avenue North
                                     St. Petersburg, FL 33701


                     _________________________________________________

Page 132 APPEARANCES: KENNAN G. DANDAR, ESQUIRE Dandar & Dandar, P.A. 1715 N. Westshore Blvd., Ste. 750 Tampa, FL 33607 Counsel for Plaintiff LUKE CHARLES LIROT, ESQUIRE Luke Charles Lirot, P.A. 112 N. East Street, Suite B Tampa, FL 33602-4108 Counsel for Plaintiff KENDRICK MOXON, ESQUIRE Moxon & Kobrin 1100 Cleveland St, Suite 900 Clearwater, FL 33755 Counsel for Church of Scientology Flag Service Organization MICHAEL LEE HERTZBERG, ESQUIRE 740 Broadway, 5th Floor New York, NY 10003 Counsel for Church of Scientology Flag Service Organization ERIC M. LIEBERMAN, ESQUIRE Rabinowitz, Boudin, Standard 740 Broadway at Astor Place New York, NY 10003-9518 Counsel for Church of Scientology Flag Service Organization
Page 133 1 (The proceedings began at 1:37 p.m.) 2 MR. DANDAR: Judge, I do have to remind the 3 Court that I have a telephone pretrial conference with 4 Judge Greer in the probate case of this case today. 5 THE COURT: Oh, what time? 6 MR. DANDAR: 2:00. 7 THE COURT: Well -- okay. 8 MR. DANDAR: It's only supposed to be 15 9 minutes, so -- 10 THE COURT: Well, the problem is the dentist 11 just called and asked if I could be there at 2:00 and 12 I said no, but I could be there sooner than 3:00. 13 So . . . 14 I think I see the issues here. Go ahead, 15 Counselor. 16 MR. HERTZBERG: Thank you, your Honor. 17 THE COURT: There's a couple problems I have 18 with this just in a quick reading of it. One of them 19 is, as I understand your release and waiver, it talks 20 about a waiver from anything occurring out of an 21 auditing procedure or services. 22 MR. HERTZBERG: Well -- 23 THE COURT: And I've already made a ruling 24 as a matter of law that the -- what's an issue here is 25 the failure to get medical treatment, not -- not
Page 134 1 something occurring out of an auditing procedure. 2 That's problem No. 1 I have, especially in a summary 3 judgment. The summary judgment is as clear as a bell: 4 There's not even any issues for anybody to look at. 5 So that's No. 1. 6 No. 2, in looking at the documents 7 themselves, as I saw them, I saw one of them had a -- 8 I don't know what all these services are, but I see 9 where at least the first couple that I looked at 10 delineated some services. And I can't even tell you 11 what they are, but services applied for. It says 50 12 something Grade 3, 37 1/2 NED -- NED, I guess -- 13 something CCRD, sunshine rundown -- that one I know -- 14 a 25 OT, solo OT, OT 4, 37 1/2 NOTs. I don't see 15 introspection rundown in there. 16 The next one I see says clear certainty 17 rundown. And then I saw one other that was attached 18 to something that I couldn't tell what it meant. 19 12 1/2 -- I don't know what that one says. What does 20 it say? 21 MR. HERTZBERG: The 12 1/2, your Honor -- 22 THE COURT: I really just want to know what 23 it says. 24 MR. HERTZBERG: Right. 12 1/2, case review 25 and setups, and then there's an abbreviation, CCRD,
Page 135 1 which stands for clear certainty rundown. 2 THE COURT: Okay. So that has some service. 3 Then I saw the one that was attached to 4 David Foster's affidavit that doesn't have any 5 services applied for; neither does it have a date. So 6 we have no idea what that's for. 7 So my second question is -- we know that 8 these things have got to be clear and definite, in 9 other words, before they're going to be enforced. And 10 I don't see anything that says "rundown," and I don't 11 see anything that says this is general for any and all 12 things that I might ever get, No. 2. 13 And No. 3, I think the main problem I have 14 is that Lisa McPherson never got to auditing. She was 15 in what we would call a preauditing -- at least that's 16 all the testimony that I have received, that she was 17 in a Step 000 of the introspection rundown, which was 18 to ready her for auditing. 19 So even if she were waiving any -- and 20 releasing any liability out of some auditing, it 21 wouldn't seem as if she had reached that stage yet. 22 So those are the problems I have. 23 MR. HERTZBERG: Let me work backwards, your 24 Honor. I think opposing counsel has not done this. I 25 think the Court should focus as well on paragraph 8.
Page 136 1 All of the examples of the releases and waivers that 2 we attached, your Honor, have the same language in 3 them, and -- which was one of our points. 4 And in paragraph 8, the language which 5 governs, "The resolution of any claim," which would be 6 a legal claim, "dispute, or controversies I may have 7 with the Church arising out of or relating to any 8 Scientology or Dianetics services or activities," we 9 believe, your Honor, would be broad enough to 10 encompass the introspection rundown during the 11 relevant -- the time period that is relevant to the 12 complaint in this case even if Lisa McPherson did not 13 reach the stage where she had formal auditing. 14 And I think 8 has to be read in conjunction 15 with 5, and informs it. And the fact that the 16 language is broad is not a detriment at all to our 17 legal argument, which is essentially a legal argument 18 on this motion for summary judgment, because the Theis 19 case, which is the controlling authority not only in 20 this jurisdiction but one that was explicitly followed 21 in summary judgment context in other jurisdictions, 22 including the First, Fourth, and Fifth District Courts 23 of Appeal, uses the word "broad" in one aspect of its 24 discussion about the efficacy of exculpatory clauses. 25 So it's not a liability for an exculpatory
Page 137 1 clause to have broad language as long as the language 2 is clear and unambiguous, which is a central standard 3 in the Theis case. 4 With respect to the absence of the 5 specificity of particular services in the forms -- in 6 the blank on Exhibit 6, which your Honor has referred 7 to, and the fact that some services are referred to in 8 the other ones that we attached but not others, I 9 would respond in this way: I don't think, given the 10 language in paragraphs 5 and 8, which should be read 11 together as part of this integrated document, that it 12 is necessary -- 13 THE COURT: Then why do you have more than 14 one signed? If it's just for anything and everything, 15 at any time, anyplace, well, just have one signed. 16 Somebody joins up, they sign it once, and that's the 17 end of it. I mean, clearly you had her sign at least 18 four that we know of. 19 And the obvious reason for that is, it would 20 seem to me, that when she's perhaps getting ready to 21 undertake certain things, you wanted to be sure it 22 would meet the legal criteria, which is definite, 23 fixed, for this, here it is. Like the race driver: 24 Here's the race, here's the place, I agree to, you 25 know, release this from liability for this.
Page 138 1 So those I think you're on pretty -- you 2 might be on pretty solid ground. But are you 3 suggesting that the document in question is this one 4 which just has blanks, just blanks, services applied 5 for, blank, would that apply to anything? 6 MR. HERTZBERG: It is one we're relying upon 7 principally. And to answer your question further, 8 your initial question on this -- well, to answer the 9 question that you just posed, why one is signed each 10 time is a matter of ecclesiastic decision. I don't 11 know the answer to that, and I don't think it's for -- 12 with all due respect, I don't think it's for us to 13 collectively wonder why that is the way the Church 14 does it. That is the way the Church does it, and -- 15 THE COURT: Yes, but you're asking me to 16 enforce it as a matter of law in a legal court, aren't 17 you. 18 MR. HERTZBERG: Yes, I am, your Honor. 19 THE COURT: And we know, therefore, you're 20 going to have to abide by the law, which has got to be 21 clear. And it says services applied for, blank, date, 22 blank. This is not what I would consider -- I mean, 23 I'd almost grant a summary judgment for the other 24 side, say you have no right to even raise this thing 25 as a defense. But I've not been asked to do that.
Page 139 1 But you're coming in as a matter of summary 2 judgment saying there isn't even an issue here for a 3 jury to consider; it's so clear that any fool could 4 see that it just -- you know, that she -- now, if it 5 had said introspection rundown on such and such a date 6 which I'm about to undertake, I agree that anything 7 coming out of this -- I will waive any negligence, any 8 this and that and the other thing, signed and dated on 9 a given date, now at least I think you have an 10 argument. 11 But I think to suggest as a matter of 12 summary judgment that this thing is so clear to even 13 remove it from a jury's consideration is hard for me 14 to -- to buy, unless you have a more definite document 15 that I'm not seeing. 16 MR. HERTZBERG: I don't have a more definite 17 document, your Honor. I will just add further in 18 response to your Honor's question that Mr. Prince -- 19 while I don't believe that Mr. Prince's affidavit in 20 any way has raised any factual issue that would defeat 21 a motion for summary judgment, he has stated in his 22 affidavit that these enrollment forms -- and they are 23 uniform. I don't think he's disputing -- he certainly 24 is not disputing that they aren't uniform and that 25 they don't all contain the same language, including
Page 140 1 paragraph 8. 2 He has stated that those are executed each 3 time one begins a new level of services or service 4 within the Church of Scientology ecclesiastic 5 practices. 6 And I think that is consistent with a point 7 that we tried to make in our brief, which is that Lisa 8 McPherson was on notice and voluntarily chose to 9 decide that a civil court should not adjudicate any 10 claim, dispute, or controversy. And those are the 11 words in paragraph 8. And they are highlighted in 12 block letters in each of these as part of 8, at the 13 very end, in the language which we find to be very 14 important: "In no event shall such claim or 15 controversy be submitted to a court for judicial 16 determination." 17 It may have been done repetitiously, but in 18 fact the repetition was something that was pointed out 19 by the Theis court to be a somewhat helpful guide to 20 the court in the decision that it reached. There is 21 language in the Theis decision which pointed out to 22 the fact that this decedent had been racing for 23 several years and signed similar releases on numerous 24 occasions. Lisa McPherson -- 25 THE COURT: And wasn't that release an exact
Page 141 1 release as to that race, on that day, at that 2 racetrack? 3 MR. HERTZBERG: It was, your Honor. But our 4 argument is that, because of the -- I -- forget the 5 word "similar." These are identical. They were 6 signed. And Mr. Prince, perhaps inadvertently, I 7 think has added an element to our argument here 8 through his affidavit insofar as he says that these 9 were required each time. 10 So Lisa McPherson knew and agreed with the 11 concept that she would not adjudicate in a court of 12 law, such as this court, any dispute or claim arising 13 out of any of her activities in the Church of 14 Scientology. And that is our argument, plain and 15 simple. 16 THE COURT: Any of the services. That's 17 what this is about, isn't it? They're services. 18 MR. HERTZBERG: It is about -- it is about 19 what she did, services or activities. And of course, 20 the introspection rundown, which they pled in their 21 complaint she was undergoing in the fall of 1995, is a 22 service. 23 And so we believe it is -- it comes within 24 the terms. It's clear, and we don't think -- and we 25 think it is unambiguous. And we think that the Theis
Page 142 1 case, which became the controlling case in the state 2 of Florida, abundantly supports our position on this. 3 I just wanted to add further that the case 4 that -- the one new case that's cited in the 5 opposition which I received this morning, the Ivey 6 case, which is a Fourth District Court of Appeal case, 7 has been subsequently narrowed and explained by that 8 same court in the -- in the Banfield case which we 9 cited, Banfield v. Louis, and clearly refutes the 10 narrowing and the narrow interpretation of what the 11 Ivey Court's intent was, is a clear answer and a 12 complete answer to the argument made by the plaintiff 13 that there might be a factual issue on the relative 14 weight of the parties, the suggestion that this would 15 be an adhesion contract, which it is not. 16 And not only did the Fourth District 17 subsequently explain that the Ivey case, which is the 18 new case that they cite, did not mean this 19 all-encompassing principle that they cite it for, but 20 the Fifth District Court of Appeal as well in one of 21 the other cases that we cite also says that the Ivey 22 case does not stand for that proposition. So that -- 23 there's that argument. 24 Another argument that they've made which we 25 believe we have conclusively answered in our papers is
Page 143 1 that the word "negligence" does not appear in these 2 forms. And the short answer to that is the Hardage 3 Enterprise case which we cited explicitly says that it 4 is not necessary in Florida for a release and waiver, 5 even to cover gross negligence, as the Theis case 6 talked about and as these causes of action here 7 allege, need not use the word "negligence" or any 8 other particular phrase. And I quote: 9 The judgment of the trial court is based 10 upon the erroneous assumption that a release will 11 not bar claims of negligence merely because it 12 does not specifically contain the word 13 "negligence." There are no words of art required 14 in a release of the intent of the parties -- if 15 the intent of the parties is apparent from the 16 language used. No Florida appellate court has 17 ever held that the word "negligence," within the 18 quotes, must be included in a release for it to 19 bar negligence claims. 20 So that is not a basis for defeating our 21 motion either, your Honor. 22 THE COURT: All right. Thank you. 23 Mr. Dandar. 24 MR. DANDAR: Yes. Based upon Theis, which 25 this Court must follow, "negligence" -- the word
Page 144 1 "negligence" must be included in the release. The 2 words "personal injury or death" must be included in 3 the release. 4 And according to the Jesse Prince affidavit, 5 these -- these aren't even -- these are enrollment 6 agreements, and they have absolutely nothing to do 7 with bringing a claim in a court of law for injury. 8 They have to do with being dissatisfied with your 9 auditing or other religious service that you paid for. 10 THE COURT: I'll tell you what I'm going to 11 do. I'm going to deny the motion for summary 12 judgment, saying it's at best a position of fact, it 13 would have to be resolved by a fact-finder, certainly 14 not as a matter of law. 15 And furthermore, before I let you all raise 16 this, then we'll address it -- in other words, I'm not 17 even sure that these things are good enough, to be 18 honest with you, under Florida law to even be 19 presented to a jury for their consideration. They 20 surely aren't good enough for me to grant the Church a 21 motion for summary judgment. But -- so I don't need 22 to hear more from you. 23 I think they have to be a lot more definite 24 than they are what they're for. I think what we had 25 better do -- and Mr. Dandar perhaps you can get
Page 145 1 this -- but in the Theis case, I'm sure there's this 2 release and waiver after it says what it is, but I'm 3 sure it's definite. And I'm sure it's talking about 4 at this race, on this day, at this racetrack, these 5 people and what have you. 6 In this case, we're talking about where this 7 Court has made a determination, perhaps not agreed to 8 by the Church's lawyers, but I made a determination 9 that Lisa McPherson had a right to expect that if she 10 needed medical attention while she was undergoing the 11 introspection rundown she would get it and that she 12 certainly never waived her right to -- to have what 13 the Church allowed afforded to her. And therefore, 14 that -- that's the -- the gravamen of the case here 15 that I would rule. 16 So clearly, clearly, you cannot prevail in 17 this on a summary judgment. These are certainly -- 18 some of the issues that I've raised are issues that 19 perhaps would be raised for a jury. But as I said, 20 I'm not even sure that you've got -- I mean, before 21 I'd like to see this go to a jury, I'd like something 22 that says: Introspection rundown beginning on such 23 and such a date, I hereby waive, blah, blah, blah. 24 Then it might be sufficient. But the ones 25 that you have that are for other things clearly don't
Page 146 1 address this. The other one you have has a great big 2 blank in it with a blank date. That just sounds like 3 somebody signed something for all the world, and yet 4 it is for services. There's no way of knowing whether 5 you expected the parishioner to add the service after 6 the fact or just what it was. 7 So you've raised it as a defense. You may 8 be able to present it as a defense; you may not. But 9 you surely can't get a summary judgment -- a motion 10 for summary judgment on it. 11 So your motion for summary judgment on the 12 basis of release and waiver is denied. And I don't 13 need much more than that, just motion for summary 14 judgment based on release and waiver is denied. Okay? 15 If somebody wants to prepare me an order, 16 I'll sign it. 17 MR. DANDAR: I will. 18 THE COURT: I don't want to hear from the 19 other side that you don't approve of it. You send it 20 to the other side, get it approved, and send it in 21 here with a note on it that says "we agree." 22 MR. DANDAR: All right. 23 THE COURT: Okay? All right. You've got 24 your hearing. And are we done except the battery, 25 which I'm going to take up? I mean, we're done
Page 147 1 with -- 2 MR. LIEBERMAN: Yes. 3 THE COURT: Okay. 4 MR. DANDAR: Judge, I'll just let you know 5 that my office received a bunch of documents today 6 from the Church of Scientology, one of which is their 7 notice of withdrawing their motion to disqualify based 8 on Rentclub, quote, without prejudice, close quote. 9 THE COURT: I got that. I guess it's better 10 than not withdrawing it at all, isn't it? Saves me an 11 order. So . . . 12 MR. DANDAR: Well, we just -- "we" meaning 13 me and my attorney and my client -- spent a lot of 14 money on that Rentclub case hearing, on the hearing 15 itself. 16 THE COURT: So? I mean -- 17 MR. DANDAR: So we're going to be moving for 18 sanctions, and we're going to ask the Court to award 19 them now rather than -- 20 THE COURT: Well, that's going to be denied. 21 That's an issue because of the matters and the things 22 that I raised and suggested that they would have to do 23 certain things. Perhaps they decided to withdraw the 24 motion. That doesn't mean you get sanctions. I mean, 25 you don't get sanctions just because you win a motion.
Page 148 1 So -- 2 MR. DANDAR: See, it's the idea of, number 3 one, violating the rules regulating the Florida Bar 4 disparaging counsel and then having a hearing on it 5 and then withdrawing it when you make some comments 6 from the bench saying you're probably going to deny 7 it, you're inclined to deny it. Then they withdraw 8 the motion. 9 THE COURT: No, I think that long before I 10 made that motion -- suggestion that I suggested that 11 they would have to, in my opinion, to prevail, be 12 willing to come forward and make certain assertions, 13 in my opinion. I don't think they agreed with me. 14 But I said for them to prevail, this is what they were 15 going to have to do. Perhaps they didn't want to do 16 that. 17 I would suggest that might be more the 18 reason for the denial than the fact they thought they 19 were going to lose it. They've lost lots of stuff, 20 and I guess they can take it up on appeal. But I more 21 or less said I wanted certain things that I thought 22 were required for them to prevail, and perhaps they 23 rethought that and thought they just didn't want to 24 make those types of affidavits or statements. That 25 would be more my guess. I have no idea why they
Page 149 1 withdrew it. 2 But in any event, just because they withdrew 3 it doesn't mean that you get sanctions. So -- you 4 know, you people, you ask for sanctions on everything, 5 Mr. Dandar. 6 MR. DANDAR: Judge, it seems like it isn't 7 fair. They get sanctions all the time, and I'm the 8 one -- 9 THE COURT: They don't get sanctions from me 10 all the time. When have I ever given them sanctions? 11 Maybe once. I don't know if I ever did. 12 MR. DANDAR: Maybe not at all. 13 THE COURT: I gave you -- you're the only 14 person I know of I gave sanctions to once, and that 15 was in the motion for severe sanctions. I didn't give 16 you severe sanctions, but I said I would award you 17 fees for bringing the matter. 18 MR. DANDAR: Yes. 19 THE COURT: That's the only thing I can 20 remember. Maybe early, early on. But I just think 21 lawyers need to come in and ask difficult questions 22 and ask the court to resolve it. The court resolves 23 it, and nobody gets sanctions. So you can file your 24 motion. You're wasting your time. 25 All right. We'll be in recess.
Page 150 1 Now, if they file it again and it gets real 2 close to trial and therefore causes delay because they 3 withdrew it, then you could have your sanctions. 4 Maybe. 5 (The proceedings concluded at 2 p.m.) 6 ____________________________________ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Page 151 1 STATE OF FLORIDA 2 COUNTY OF PINELLAS 3 I, Debra S. Turner, Registered Diplomate Reporter, 4 certify that I was authorized to and did stenographically 5 report the foregoing proceedings and that the transcript is 6 a true record. 7 WITNESS MY HAND this 30th day of December, 2002, at 8 St. Petersburg, Pinellas County, Florida. 9 10 _________________________________ Debra S. Turner, RDR 11 Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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