posted September 16, 2002
Plaintiff attorneys suing the Tri-State Crematory say in a court brief filed Monday that claims should be allowed in behalf of all families who had family members sent to the Tri-State Crematory dating to when it opened in 1982.
Defense attorneys for the Marsh family that operated it and for funeral homes who sent bodies there are strenuously resisting that interpretation, saying the 339 uncremated bodies found at the site all were dated 1997 or later.
Attorneys David Randolph Smith of Nashville and Phillip Fleissner of Chattanooga say that due to shoddy recordkeeping and other factors there is no direct evidence that anyone was ever cremated at the Noble, Ga., facility.
The 77-page brief filed in Hamilton County Circuit Court argues for setting up the cases as class actions.
Judge Neil Thomas is due to rule in the case after studying that brief and a later filing from the defense attorneys.
The brief cites "strong circumstantial evidence indicating improper treatment of remains through a wood-chipper resulting in improper pulverization and loss of remains. Although human remains in the form of bodies were apparently thrown into the woods 1997 and thereafter, mistreatment of human remains by wood chipping and blowing them into the woods was the modus operandi from the very start of Tri-State’s operation."
The attorneys said it is the defendants "who must prove lawful cremation and proper return of cremated remains because their misconduct hampers the plaintiffs from doing so. For example, although 339 'bodies' from 1997 forward have been 'found' with 176 'bodies' identified (in many cases the 'finding” of a body being based only 'enough significant bones,' 697 bodies were sent to Tri-State from 1997 forward according to the GBI list. There is simply no proof (because of the the Defendants’ shameful acts and utter disregard for the laws relating to records and identification) that any particular deceased person was in fact cremated or properly handled by the Marshes at any point in time.
"Even assuming that the Marshes cremated bodies prior to 1997, there is no evidence that the remains that were returned to the families were in fact the correct remains or were the entire remains. Given the complete absence of cremation records, metal tags and permanent identications in the urns, the burden of proof must fall on the Defendants to prove that bodies were in fact cremated (particularly as to the 697 bodies from 1997 forward).
"Likewise, although 1,725 families received cremains (from 1982-2002) according to the GBI list, the burden should rest on Defendants to prove that these remains were properly handled and are in fact the properly identified remains of the families given the systemic and unlawful lack of identification, lack of tags and lack of records establishing the fact or date of disposition by cremation."
The brief says that "All family members whose deceased loved ones were sent to the Tri-State Crematory have claims for breach of contract and for mishandling of human remains (emotional distress), because the funeral homes used an unlicensed crematory and the disposition of remains by cremation was performed by untrained and unlicensed persons.
"Families entrusted the funeral homes to perform cremations in accordance with Tennessee law and in a dignified and respectful manner with due regard for privacy, safety and ethics."
It says, "The use of an unlicensed crematory was a breach of contract in every case. The survivors’ mental image of having a completely untrained, and unlicensed and uncaring individual (Ray or Brent Marsh) handling and cremating (or failing to cremate) a deceased loved one’s body caused inevitably serious emotional distress in every case."
It was also argued that, "Because human remains are entitled to sacred respect, human remains are required by law to be handled and disposed of only by licensed personnel for reasons of (sacred) duty and public health and safety. Accordingly, every single family whose deceased loved one was taken to Tri-State (from 1982 to February 2002) has a claim for breach of fiduciary duty.
"The mishandling of human remains began in 1982 when an unlicensed person (Ray Marsh) opened an unlicensed crematory in Noble, Georgia. This was done despite a 1981 law that made unlicensed cremations illegal (GA. CODE ANN. § 31-21-5 (a)) and a 1981 Georgia Attorney General Opinion that specifically stated that the cremation of dead human bodies falls within the phrase 'disposition of dead human bodies' and 'disposal of dead human bodies.' Thus, persons who are engaged in the business or profession of cremating dead human bodies are ‘funeral establishments.'”
The attorneys said, "The mishandling at Tri-State, however, began ab initio in that unlicensed persons cremated bodies with no regard for record keeping and identification and in a repugnant manner (wood chipping human remains) that resulted commingling of remains and an unacceptable loss of human remains (blowing them out of a wood chipper, into closed galvanized box up a stovepipe chimney vent). Spewing cremated remains into the woods via ash and particulates is an abuse of human remains just as reprehensible as discarding human remains into the woods (in the case of a body). On a visceral level it may seem more egregious to stack uncremated bodies in pits than to commingle cremated remains in a galvanized box and blow the ashes into the woods with a wood chipper – but in both cases sacred human remains are being mistreated, both below the legal standard of care. The complete lack of proper record keeping and identification has also caused all families great grief, anguish and uncertainty that the remains they received were not their loved ones (at all) or not completely their loved ones."
They said, "The use of a wood-chipper is below the standard of care as admitted to by the defense expert, funeral director Joe Rogers. Although there was no direct testimony that a wood-chipper had been used by the Marshes, the circumstantial evidence of the two wood-chippers, including the orange wood-chipper with a flanged opening that 'matched' the processing center’s galvanized box, provided strong circumstantial evidence that this method had been used, particularly since there was expert testimony of cremated bone found in the wood chipper."
They said the "circumstantial evidence of long-standing mishandling of human remains is based upon the findings of experts Charles Crawford and Dan Rohling concerning the method of operation. Specifically there was no proper processing center, no proper pulverizer, and the only 'method' observed as potentially applicable to processing of remains was the wood chipper/galvanized box/vent."
It was stated, "The use of a wood-chipper is an abusive and nightmarish way of handling human remains reminiscent of the movie, Fargo. In that movie, human remains are 'processed' through a wood-chipper to the horror of the audience. Indeed, the use of the wood-chipper to dispose of human remains has most often been reported in gruesome murder cases."
It was argued, "The Tri-State Crematory litigation concerns families, funeral homes, legal relationships and the sacred treatment of human remains. The case involves funeral homes that used an unlicensed crematory in Noble, Georgia that mishandled human remains for 20 years. When the facts came to light in February 2002, the authorities discovered a nightmarish scene of dead bodies strewn on the ground, bodies stacked in vaults, partially cremated bodies, and scattered human remains.
"This case presents complex factual, legal and procedural issues. The court now faces a decision of how best to manage the cases in the interests of the parties and the courts so as to achieve justice and affirm the law and social values that govern the treatment of the dead.
"The issues of liability are so common for each funeral home (and for the Marshes and Tri-State) that class action determination of liability (for all defendants who meet the Rule 23 criteria) is clearly a superior method of adjudication. There is efficiency if not elegance in one trial to litigate the liability for each funeral home.
"Thus the court may: 1) certify class actions against the funeral homes that sent bodies to the Tri-State Crematory (that satisfy the requirements of Rule 23) and certify a class action against Tri-State Crematory and the Marshes; 2) litigate liability first in separate trials for each funeral home (or joinder of trials with one trial for all defendant funeral homes); and 3) then conduct a damages trial heard by the same jury hearing the class action liability case with individual verdict forms for each family or plaintiffs.
"This procedure was recently successfully used in a California case against a cemetery that buried bodies along a roadway rather than in graves. Terry Barnes, et al. v. Angeles Abbey Memorial Park, No. TC 008819 (Los Angeles Superior Ct. verdict, August 27, 2002). In this case Los Angeles Judge Bruce Mitchell (telephone 213-974-5691) certified a class action against the cemetery and bifurcated liability and damages. After the jury that heard the liability case (tried before a different judge, Judge John Stanton) it then considered over 200 plaintiffs’ individual damages cases which resulted in more than 250 verdicts being assessed against the cemetery. See Bellflower Jury Return $5 Million Verdicts Against Cemetery, ASSOCIATED PRESS, Aug. 29, 2002. Exhibit 2. Personal communication by David Randolph Smith with Judge John Stanton’s court-reporter [Judge Stanton tried the case], Sept. 13, 2002 (at telephone: 562-884-8036—direct line to Judge Stanton’s court ). A similar procedure of certifying a liability class and then bifurcation of damages for individual verdicts trial was approved within the Sixth Circuit in the class action suit against the University of Michigan over the use of race in admissions. Gratz v. Bollinger, slip op., No. 97-CV-75231-DT (E.D. Mich. December 23, 1998) (the federal district court certified a class action discrimination case and bifurcated the class action into a liability and damages phase). See also Gratz v. Bollinger,122 F.Supp.2d 811, 149 Educ. L. Rep. 451 (E.D.Mich. 2000). In short, the supposed “differences” in emotional distress amongst the families and plaintiffs is no barrier to class certification.
"Plaintiffs detail below that unlawful and actionable mishandling of human remains began, ab initio, in 1982 when Tri-State opened as a unlicensed and unlawful operation, illegally cremating human bodies without licensing, training or inspection by an abusive and reckless “process” of: woodchipping cremated human remains; commingling the remains in a woodchipper and galvanized box/receptacle; blowing the remains into the woods through a stovepipe vent resulting in a substandard loss of human remains; and making no effort to keep records or use required permanent identification devices and metal tags to be placed with the remains and urn. As a result, all families whose loved ones were taken to Tri-State have emotional distress and complete uncertainty that the remains they received are in fact their loved ones."
The brief says the Smith firm should not be disqualified because a partner, Allen Murphy, attended family meetings at Rock Spring, Ga., in which briefings were given by law enforcement after the bodies were beginning to be found last February. Attorney Murphy's grandmother was taken to the crematory.
Attorney Smith said GBI officials were aware that Mr. Murphy was an attorney.
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