Funeral Home Horror: David Loftus

First, let’s correct the wording of the question. People have a “right” to sue over anything they please. Their suit may have no legal basis, it may be frivolous, it may have targeted the wrong defendant(s), or it may be barred on any number of technical bases such as a lapsed statute of limitations, but none of that means the injured parties didn’t have the right to sue in the first place. A more proper question would be: “Does this suit appear to have any legal standing?” or “Does the family seem to have a viable case against (whomever)?”

As reported in the Rio Grande Sun on January 14, the family in this case brought suit against several DeVargas entities (the New Mexico funeral home and a corporation) and one of its employees; Inman Shipping Worldwide (the trucking company that brought the remains back from Utah to New Mexico and has been variously reported as being based in Utah or Ohio); and Serenicare Funeral Home in Draper, Utah. The suit alleges abuse of a corpse, negligence, breach of contract, unfair practices, and outrage. The family and the deceased New Mexico woman have not been officially identified as of this writing, although the Sun suggested that the “M.F.R.” in the court documents may be Felicita Romero, who reportedly died on Sept. 28, 2009, the day of the accident in Utah.

On the surface, the circumstances are horrifying, but it may take a good while to sort out the responsible party, and just what might have been done wrong. In the case of a car accident fatality, Utah state law likely required that an autopsy be performed by the office of the medical examiner, which hardly constitutes abuse of a corpse. (I’m no lawyer, but I’ve also never heard of the basis for legal complaint known as “outrage.”) The Sun also quoted Serenicare owner Dick Johnson as saying the brain is “75 percent water,” and that the victim’s brain had gone into a bag because it had sustained considerable trauma in the fatal crash. “Rather than try to reinsert the brain into a damaged head, it is common practice to ship it inside a bag,” he said. But not, I would think, to hand it back to the survivors. At the very least, Mr. Johnson could be condemned for insensitivity in his remarks. I’m also not sure what might constitute “unfair practices,” and it would be a question of fact whether any contractual obligation was breached.

It seems to me the problem here revolves around who dropped the ball about properly disposing of the brain after the autopsy, which might serve as a basis for a charge of negligence. The responsibility for that would appear most likely to lie with the medical examiner and/or Serenicare in Utah, not the transport company or DeVargas, who merely handed off what they had been given. The suit against the DeVargas operations strikes me as a somewhat petulant slap by the family at the nearest, handiest organization who happened to be last in line before the relatives received their gruesome gift. But it will take time to unravel the truth of the matter. And as often happens in legal clashes these days, the plaintiffs may not have much of a case, or even a solid legal basis for suing, but may end up winning a nice cash settlement from the various defendants just to put an end to the bad publicity.