Turning Pain Into Cash Is Cremation Case Challenge

It was an unpleasant thought but one that Eileen Heffley just couldn’t put out of her mind.

Several irregularities had occurred in the cremation and funeral of her late brother by the Harbor Lawn Memorial Park in Costa Mesa. Heffley believed the corpse had been roughly treated by the man who collected it at her home, where her brother died.

Then there were repeated delays in receiving the ashes.

The worry became a nagging doubt. She couldn’t help but think the unthinkable: that something had gone wrong, and that her brother’s remains had not been treated with the dignity and respect they deserved.

She telephoned her lawyer with questions.

That call 6 years ago has led to the filing of more than 300 lawsuits against Harbor Lawn and firms that used its cremation services alleging the mishandling of corpses during 12,000 cremations conducted between 1978 and 1983. The alleged misconduct potentially could touch as many as 30,000 relatives and friends of the dead. Harbor Lawn and the other defendants have denied the charges.

While similar lawsuits in Pasadena and San Francisco have alleged improprieties in cremations, the Harbor Lawn cases--involving plaintiffs from all over the country, but mostly from Orange County--were the first in California to allege such extensive mishandling.

Flood of Lawsuits

The flood of lawsuits, all revolving around the same allegations of wrongdoing against the defendants but each involving different victims, at one time threatened to overwhelm the Orange County Superior Court in a wave of litigation.

Instead, on Monday a judge will preside over what could be the last significant hearing in the cases. After more than 3 years of effort, most of the parties involved have proposed to end the massive case with payments now approaching $30 million.

Turning a monumental legal headache into a model of judicial efficiency has required demanding negotiations among dozens of warring parties and insurers, adjustments in legal tactics as the law itself has changed during the lengthy case, and finally the creation of a settlement that has cracked traditional legal molds.

The deal is scheduled to move from Superior Court Judge Jerrold S. Oliver, who presided over the talks, to his colleague, Judge John L. Flynn Jr., who in 2 weeks of hearings beginning Monday will determine if the delicate compromise warrants approval.

If Flynn endorses the settlement, no trials will be held. The defendants--Harbor Lawn, a group of Orange County funeral homes that used Harbor Lawn’s crematory services, and the Neptune Society of Orange County, which arranged cremations--have steadfastly denied the charges and, under the agreement, will not have to admit any wrongdoing.

Back Up Allegations

Betty McMullen, the Tustin lawyer who represents Heffley and the majority of those who have come forward so far, said she was ready to back up the gruesome allegations with testimony.

A man who worked in the crematorium has already stated under oath that he regularly stuffed more than one corpse in a single furnace. Other Harbor Lawn employees--morticians, embalmers, funeral arrangers, delivery workers--were ready to testify about improper practices, according to McMullen.

And perhaps most painful of all for survivors, ashes of loved ones were commingled, McMullen alleged.

“These people suffered from intense emotional, and at times physical, distress when they learned what happened. And they still don’t know what happened to the remains, and where they are now. Harbor Lawn can’t tell them. They’re never going to know for sure,” McMullen said.

The task of translating that anguish into dollars and cents emerged as the challenge of the settlement.

Cases involving recovery solely for emotional distress are rare, offering little guidance. Lawyers had to consider that, like any case, damages were within the limits of insurance of the defendants. But their central concern was making sure that all claimants were included. More than 400 people had filed lawsuits, but 12,000 cremations had been performed during the period in question. Many thousands might come forward with new demands after the announcement of a settlement.

If Harbor Lawn was going to agree to pay, it would do so only if it knew for certain that claims made later would be covered by the settlement as well those already on file.

The solution was to transform the individual cases into a class action for the settlement. The current plaintiffs would be represented by their own lawyers; a judge would appoint counsel for those yet to come forward.

That approach has been used with success in other cases involving hundreds and thousands of victims, such as Vietnam veterans suing over exposure to Agent Orange, the nationwide litigation over the use of asbestos to insulate many schools, lawsuits over the Dalkon Shield, and so-called “mass torts,” such as plane crashes and train derailments.

But an unusual and controversial aspect of the Harbor Lawn deal is that, if approved by Judge Flynn, no plaintiff will have the option to “go it alone.” Anyone who claims damages must do so through the class structure, and none will be allowed to proceed to trial independently, unlike other class action cases.

Forcing all those who have and will sue into the same class is an unusual approach. The settlement would cut off the victims’ normal right to a trial by jury and has been the target of the most serious challenges to the deal.

“It is unusual,” said attorney Nancy Sher Cohen, representing Harbor Lawn. “But California law allows for flexibility in its approach to class action law. We must rely on the ability of the (judge) to adopt innovative procedures that will be fair to litigants and expedient.”

To Its Knees

Said one court employee: “If the settlement isn’t approved, it will bring our court system to its knees.”

With the protection of the proposed mandatory class action, the defendants signed on between May, 1986, and last summer. As part of the tentative settlement, they have paid a total of $21,183,000 into a fund over the last 2 years--$14 million by Harbor Lawn, $2,675,000 by the Neptune Society, and the remaining $4,508,000 from five groups of mortuaries that did business with Harbor Lawn.

The interest earned to date, earmarked for the victims, is now estimated at $2 million. In another unusual aspect of the case, the defendants have agreed to pay directly for the costs of managing the fund--keeping track of the money, notifying potential claimants, advertising, and administering the machinery for making payments. Total costs of administration have been estimated at $3 million to $5 million.

As the pot grew, conflicts between claimants arose over how to divide it.

The first group of plaintiffs, those who had filed lawsuits by mid-1986, argued that they deserved higher damages than those who followed. The original group investigated and prepared the case, at great expense, and its members argued that victims who show up later do not deserve an equal share.

Demanding Too Much

But counsel named to represent the interests of the estimated 30,000 customers of Harbor Lawn who had not yet sued felt the original group was demanding too much.

“The original (389) plaintiffs believed that they had been promised 80% of any settlement. We in effect have been able to renegotiate it, first down to 25%, and now even lower.” said Polly Horn, whose firm was appointed to represent the class of people who may make claims in the future.

The first plaintiffs have already collected $3.5 million under an earlier phase of the settlement, averaging $9,281.36 apiece. They will also collect from the remainder of the fund, the amount determined by how many others file claims.

Another $1 million has been set aside for minors, incompetent people and those not yet born who may file claims.

To date, all known plaintiffs in the case, except one couple from Fountain Valley, have agreed to the settlement. While all defendants have not accepted the deal, all their insurers have, and the settlement would legally protect all defendants, whether they have supported the deal or not.

Proud of Settlement

“We are very proud of the settlement,” said Cohen for Harbor Lawn. “The point we’ve made all along is that it’s fair to the plaintiffs, it’s fair to the defendants who want to get this matter behind them, and obviously it’s a relief to the court.”

“We believe the settlement fund is substantial and should give the class members adequate redress,” said Horn.

In most cases, getting the damage money to the victim is usually the last and easiest step. But nothing has been easy in the cremation cases, and its conclusion, if the settlement is accepted, will be no exception.

First there will be a publicity blitz, for which $250,000 has been set aside to purchase television time and notices in such publications as Parade magazine, TV Guide and the Los Angeles Times.

Those who think they deserve a share will have a limited amount of time to file claims. The number to come forward will determine how much longer the litigation will go on, as well as the amount of money individuals will receive.

Who Can Make a Claim?

“There were 12,000 cremations between July 1, 1978, and July 31, 1983. The question becomes: Who can make a claim?” said Cohen.

Those qualified to make claims, estimated as high as 30,000, are anyone who arranged for the cremation, those who had the legal right to dispose of the remains, anyone related by blood, marriage or adoption and anyone claiming a “special relationship” to the deceased.

“You tell me how many people are going to be able to claim on that basis,” said Cohen. “We sit around here and say, ‘Oh God. How many are there going to be?’ ”

Damages will be based on objective factors that are designed to measure how much a person suffered. Individuals will receive points determined by their relation to the deceased.

“If you are a surviving spouse, you get more points than if you are a sibling,” McMullen said. “You get points if you arranged for the cremation.”

“It’s taken a lot of time to work out the details. It takes into consideration the legal factors in trying to divide the money equitably. You can’t put this out with cookie cutters. Emotional distress is unique,” McMullen said.

Complex Point System

Lawyers involved say that while the point system is complex, the claim form itself should be easy to understand and complete. There will be a toll-free telephone number to help those who have questions.

In a bow to the unique type of damages involved, yet another fund has been set up. It is designed to be the last resort for those who have been denied recovery or feel they have been shortchanged by the point system.

People will be permitted to make their pitch before a hearing officer, probably a retired judge, who will make the final decision. While there will be no representatives of the defendants present, the plan calls for an informal trial to take place.

“In a case of this size, normally you try to develop a system dealing only with objective factors, and have a computer run out the points and cut the checks,” Cohen said. “We felt that because emotional distress damages are extremely subjective, we needed a vehicle for compensating people who were particularly distressed and perturbed.”

Finally, separate funds for minors and for lawyers and others who worked on the case will be created. Legal fees generally will be capped at 25% of the total settlement.

The entire package, 4 years in the making, will be reviewed by Judge Flynn, who is the fifth Superior Court judge to be involved in the case. If he approves, the machinery for processing will begin, with Flynn taking a final look at the deal at the end of this year.

Other cases alleging mishandling of remains are now pending in Southern California. A Bay Area lawsuit, in which a burial-at-sea firm was accused of mixing the ashes of 5,000 cremations, was settled last year for about $30 million.

And the operators of the Lamb Funeral Home in Pasadena have been the target of bizarre allegations not only of desecration, but sale of organs for transplants. The owners face criminal charges in the case.

But the avalanche of cases Eileen Heffley helped trigger 6 years ago remains the first, and in the words of Harbor Lawn attorneys, “the most troublesome group of cases ever to descend upon the courts in Orange County.”

After 6 years of uncertainty and delays, Heffley said she believes the lawsuit was worthwhile.

“I think it did some good,” she said. “I think we did some good for the funeral industry.”

One family refuses to settle, insists on trial. Part II, Page 1.