The author continues to report on decisions made by operators of funeral homes, cemeteries and crematories so ill-conceived or outrageous, other members of the industry should be aware of them. Readers of this column reacted favorably to these reports with phone calls, emails and letters.
Recently, the author reviewed an unpublished court opinion on a Motion to Dismiss in the case of Gerstley v. Spicer-Mullikin Funeral Homes, Inc., 2015 WL 756981 (Del. Superior Ct.).
The alleged incident, as reported in the opinion, involved a burial and cremation situation where a funeral home received two bodies during the same time period that were switched. The remains of the person that was supposed to be buried were cremated and the other remains were buried in the wrong location. The facts described in the opinion indicate that the deceased (Foy), members of her family and a caregiver met with the owner of the funeral home to discuss the arrangements to be followed when Foy died. At that time Foy indicated to the owner she did not want to be cremated and wanted her remains buried at a local cemetery next to her husband’s remains.
When Foy died one of the plaintiffs signed a contract with the funeral home for the basic services and procedure for a funeral at the funeral home and the transportation of her remains to the cemetery. The contract specifically provided Foy’s remains would be embalmed. No cremation authorization form was provided or signed. Instead it was alleged on August 8, 2011, the day of the funeral two of the plaintiffs discovered that the body lying in the coffin, wearing Foy’s clothes and surrounded by Foy’s pictures and jewelry was not Foy. The owner was called in and he realized that Foy’s remains instead of being embalmed had been cremated.
The opinion indicates that it appeared two bodies were brought to the funeral home at the same time and neither body was tagged on arrival. The employee later mixed up the tags and the error occurred. In addition, Foy’s cremated remains were buried in the wrong place. If the problem was corrected at this point while the plaintiffs would have been very upset, it is probable; in the author’s opinion the problem could have been resolved without litigation.
It was further alleged that the owner then gave the plaintiffs two options either to proceed with the service with a closed casket or delay the service until the cremated remains could be retrieved. The plaintiffs chose to proceed with the closed casket service. After the funeral service the owner required one of the plaintiffs execute a document approving the cremation indicating that the cremated remains could not be retrieved if the document was not signed. On August 15, 2011the family attended a separate burial service where Foy’s cremated remains were buried in the proper location.
The family on the basis of the previous alleged facts filed a complaint against the Spicer-Mullikin Funeral Homes, Inc and its owner on an individual basis in the Delaware Superior Court claiming breach of express or implied contract, negligence, gross negligence, recklessness and interference with the burial of Foy. The defendants filed a Motion to Dismiss the case on the basis of various arguments related to its interpretation of Delaware law. One issue that was settled by the parties before the court issued its opinion was the agreement that the owner of the funeral home corporation could not be a party to the case on an individual basis.
The Court reviewed the various arguments of the Defendants and basically denied the Motion to Dismiss with some exceptions. The court’s determinations on the defendant’s positions are fairly normal for this type of case. The court’s discussion and determination on two issues is noteworthy.
The first issue was whether all of the plaintiffs had standing to sue. The defendants argued that the Delaware law dealing with the parties that had the right to dispose of Foy’s remains applied and that none of the plaintiff’s qualified. The court reviewed the applicable law and determined in this case the statutory law involving the right of disposition did not apply. However, the general Delaware law involving the rights of survivors that had the legal rights and duty of burying the deceased and were entitled to the solace of giving her body a decent burial did apply. The court then determined that the plaintiffs had provided enough evidence that a jury might find the funeral home was grossly negligent, but not enough to prove the funeral home had acted in reckless disregard of the plaintiff’s rights.
The second issue related to the admissibility of the plaintiff’s expert witness testimony at trial. The testimony was primarily to be provided to show that the employee who failed to tag the bodies and then later mis-tagged them had violated that standard of care for funeral directors. There are not many experts in the industry qualified to testify in these types of cases and usually there is no one in a local area. Therefore it is not uncommon for a plaintiff to hire an expert that has obtained national recognition that lives in another state. This often causes logistical problems related to complying with court or state law requirements for using expert testimony and the familiarity with the laws of the state where the trial is being held.
The defendant’s attorney objected to the use of the expert’s testimony about the standard for care in the industry at a trial for two basic reasons. First, he argued the Expert’s Report was prepared by the plaintiff’s attorney and the report contained conclusions that were based on authorities the expert had not used. Secondly, that the expert’s determination of the standard of care was not based on any statutory or case law, but only the experience of the expert. The court reviewed that background of the expert, the written material that was relied upon and the expected testimony. On that basis the court concluded that the testimony of the expert would assist the jury in understanding the appropriate standards for a funeral home and a funeral director.
This column is going to end in a similar way every time this topic is covered because these statements still apply. When you make a mistake, deal with it then. Do not cover it up. The situation is usually discovered. Contact the family when necessary. Sometimes the cost of a lawsuit is more than it costs to deal with a situation. Monitor employees. Monitor other members of the industry and if you see something that is questionable, report it to the authorities or a licensing board. When an industry member acts improperly, adverse publicity tends to affect other members of the industry.