A drug rehab clinic being sued over the death of one of its patients is asking for summary judgment even though many of the plaintiffs’ allegations have been accepted as true because the judge struck the defendants’ answer.

Narconon of Georgia argues that those admissions are irrelevant to the claim that it is responsible for a patient’s fatal heroin overdose.

“The fatal flaw in the case would be the failure to establish that the acts that have been admitted proximately caused a 28-year-old man to take heroin,” said one of the defendants’ attorneys, Barbara Marschalk of Drew Eckl & Farnham. She spoke after a four-hour hearing Jan. 17 before DeKalb County State Court Judge Stacey Hydrick.

Trial is scheduled to start Feb. 11.

Jeffrey Harris, who represents the man’s parents, said the Norcross rehab facility had a duty to protect people in its care from drugs and alcohol.

“It’s incredibly gutsy for someone whose answer has been struck to file a summary judgment motion,” said Harris, of Harris Penn Lowry DelCampo.

In its memo supporting its summary judgment motion, the defense noted nine cases decided by the Georgia Court of Appeals in which plaintiffs weren’t entitled to default judgment even though defendants’ answers were struck or they failed to answer.

A key question before Hydrick is whether the facts that stand admitted by default amount to a viable legal claim under Georgia law, according to Narconon of Georgia.

Narconon said in court and in pleadings that Patrick Desmond, a former Marine, caused his own death by overdosing on heroin, not by any negligence or responsibility on the part of the drug rehab center in Norcross.

Hydrick questioned Narconon about the extent of its duty to protect its patients. She took the motion for summary judgment under advisement.

“I’m struggling with the fact that this is a facility holding itself out as a program that’s going to fix your problem,” Hydrick said in court.

Desmond drank alcohol with Narconon employees and staff members at the off-campus apartment complex where they lived, and then he left the apartments with two former Narconon patients to buy heroin, according to the first amended complaint.

“They can’t send their students to this environment knowing this is going on,” Harris said in court. “The staff gave him alcohol. They cocked the gun.”

But Narconon’s attorneys countered that the alcohol didn’t cause Desmond’s death—the heroin did. A medical examination after Desmond’s death showed he had a blood alcohol content of 0.157, Marschalk said. That level of intoxication is nearly double the 0.08 limit for driving in Georgia.

“Even though you’re a drug and alcohol rehab program … you’re going to have people doing drugs just like people do drugs in jail,” she said. “Addicts will find a way to do drugs. That’s just a fact of life.”

Hydrick struck Narconon’s answer to the complaint Nov. 5, saying the defendant provided false and misleading discovery responses and deposition testimony in response to requests for evidence about claims that the rehab center ran an unsafe and unlicensed facility. The order didn’t find fault with Narconon of Georgia’s lawyers, instead blaming their client.

As a result of the order, Narconon has admitted many allegations contained in the complaint arising from Desmond’s death June 11, 2008.

A Florida drug court required Desmond to enroll in an in-patient, residential drug and alcohol rehab facility following his arrest for cocaine possession. Narconon represented that it met the drug court’s standards and that Desmond would be closely supervised, according to the defense’s recitation of facts admitted by Hydrick’s striking their answer.

Narconon was not licensed to operate a residential program, and it maintained and illegally operated off-site housing, the statement of facts said.

On the night of his overdose, Desmond drank beer and vodka with Narconon employees and staff members in a staff member’s apartment. After becoming intoxicated, he left the apartment to buy heroin, and the employees and staff members were aware of his intent to do so but didn’t intervene.

A few hours later, emergency medical personnel found Desmond in a vehicle stopped on the shoulder of Interstate 285. He had no blood pressure or pulse and was pronounced dead at the hospital.

Although those facts are admitted, Narconon’s attorneys say the actions of the facility and its employees didn’t result in Desmond’s death.

Desmond knew that Narconon was an outpatient facility when he signed documents saying so, Narconon contends. Desmond couldn’t have been legally restrained from leaving the apartment to buy drugs. If the Narconon employee had alerted a supervisor or law enforcement, there’s no allegation of how that would have prevented Desmond’s death. Desmond injected the heroin that killed him, and Narconon had nothing to do with his actions, the defense says.

“Persons who make the decision to consume alcohol (or illegal drugs) and inflict harm upon themselves cannot as a matter of law recover from third-parties for their resulting injuries. To allow Plaintiffs to recover against NNGa for Patrick Desmond’s self-inflicted, illegal drug overdose would reward his criminal conduct and is wholly inconsistent with Georgia’s public policy,” according to the memo by Marschalk and Drew Eckl colleagues Stevan Miller and Lisa Richardson.

Admission of facts alleged in a complaint doesn’t preclude a defendant from showing that no recoverable claim existed, the memo said, citing Fink v. Dodd, 286 Ga. App. 364 (2007) and Grand v. Hope, 274 Ga. App. 626 (2005).

A defendant may still show that allegations are factually unsupported or insufficient to support a cause of action.

In most of the nine cases cited, the defense won on appeal because a default failed to establish a cause of action, recoverable claim or liability.

But Harris said Narconon engaged in a series of deceptions that led to Desmond’s death.

Among his claims: Narconon misrepresented itself to drug court authorities as being a residential and monitored program; it substituted Scientology teachings for legitimate rehabilitation services; and it failed to prevent drug and alcohol abuse at the apartment complex.

“A drug and alcohol rehab facility has to take steps to prevent … access to drugs and alcohol,” Harris said. “Any contention that they don’t have a duty is nonsense.”

Narconon of Georgia is a subsidiary, licensee or alter ego of California-based Narconon International, which operates drug rehabilitation facilities worldwide, according to the first amended complaint. Narconon International is a subsidiary of the Association for Better Living and Education, which oversees drug rehab and other activities of the Church of Scientology, it said.

Narconon International’s attorneys, David Root of Carlock, Copeland & Stair and Jay Bennett of Alston & Bird, said their client and Narconon of Georgia are separate organizations connected by a licensing agreement. They argued that Narconon International isn’t responsible for the actions of Narconon of Georgia.

Harris countered that Narconon International had an oversight role in the operations of Narconon of Georgia, and that the parent organization knew of problems at the apartment complex but didn’t correct them.

The case is Desmond v. Narconon, No. 10A28641.