Advocates for reform of funeral, cemetery industry are never at rest.

More than 100 babies' graves were dragged open by a backhoe and the remains thrown into the gaping trench or into the trash. Gruesomely deteriorated pieces of a man's body were unearthed shortly after his death and tossed in a garbage dumpster. A woman's defective casket was incinerated, along with her family heirlooms, including a gold wedding band, other jewelry, and pictures drawn by her sister's children.

These scenarios detailed in Florida court cases resulted neither from the work of grave robbers nor teenagers looking for a macabre thrill. The named defendants in these cases were cemetery owners and managers.

Stories of these and other abuses, including alleged fraud and misrepresentation by morticians, are seldom uttered in polite company. But they are being told and retold with increasing frequency in trial courts across the country.

Clearwater, Florida, plaintiff attorney Thomas Carey said the funeral and cemetery business is largely run by three corporate conglomerates, is terribly underregulated, and adheres to business principles that no retail outlet in America could get away with and still make such handsome profits.

"They're literally burying their mistakes," Carey said of the multibilliondollar industry. "There is a Wizard of Oz quality to this that says don't look behind the curtain. The industry has become emboldened to the point that it thinks it can do anything to anybody."

Carey, who chairs ATLA's new Funeral Services Litigation Group, has fought back with lawsuits filed on behalf of the plaintiffs mentioned at the beginning of this article. In the "Babyland" case--named after the section where infants were buried at the Royal Palm Cemetery South in St. Petersburg--more than 300 plaintiffs settled for an undisclosed amount to compensate for their emotional distress. (Roe v. The Loewen Group International, No. 95-6115-CI-15 (Fla., Pinellas County Cir. Ct. June 15, 1997).)

In July 1992, the cemetery instructed workers to install an irrigation system in the Babyland section. Using a backhoe to dig a ditch, the workers unearthed the remains of deceased infants, destroying or damaging gravestones and caskets along the way.

Court papers show that the workers gathered up the remains to put in plastic bags for reburial in mass, unmarked graves. Some of the remains were thrown into a nearby garbage dumpster, according to the complaint. The complaint also alleged that cemetery officials threatened to fire the workers if they revealed what had happened. The plaintiffs' claims included tortious interference with a dead body and emotional distress.

In Rudlin v. ECI Cemetery Services of Florida, Inc., plaintiff Alana Rudlin claimed that the cemetery moved her husband's body to a temporary mausoleum pending construction of a new one. ECI allegedly instructed its employees to remove the casket from the temporary crypt, clean the casket interior, and move it to the new mausoleum.

The complaint alleges that Norman Rudlin's legs, from the knees down, fell from the body and that those remains were thrown in a garbage dumpster. The rest of the remains were removed, and the workers then used heavy equipment to upend the casket so they could wash it down with a hose. In the process, they allegedly tossed out the personal mementos that were buried with the body and placed the body in a casket identical to the original.

Court documents show that Rudlin's widow first learned the body was to be moved when the cemetery called seeking her permission. Without giving her permission, she went to the cemetery and found her husband's unattended casket on the sidewalk in front of the temporary structure. She filed claims of tortious interference with a dead body and emotional distress. The case is pending. (No. CACE-98-6609-03 (Fla., Broward County Cir. Ct. filed Apr. 24, 1998).)

In Morphy v. Sylvan Abbey Memorial Park, Inc., the body of Kerry Morphy was moved from a temporary crypt to a permanent one. According to court documents, cemetery officials instructed workers to open the casket and check for damage because of previous problems of excessive deterioration in the structure of caskets similar to Morphy's in the same mausoleum.

The workers, in fact, found that the casket and the remains had deteriorated dramatically, documents show. The cemetery allegedly instructed the workers to remove the remains and to burn the casket in an incinerator at a nearby crematorium. The personal effects--which included family heirlooms, drawings, and letters--apparently fell from the casket and into the fire and were destroyed as the casket burned.

The cemetery allegedly placed Morphy's remains in a casket identical to the original and notified surviving family members of the need to move the casket. When the family arrived, they questioned the cemetery about the need for a new casket. The cemetery said it had replaced the original one because of cosmetic damage to the outside.

The family sued the cemetery, claiming tortious interference with a dead body and emotional distress. The case is pending. (No. 98-2496-CI-21 (Fla., Pinellas County Cir. Ct. filed Apr. 16, 1998).)

Death business goes to court

Carey said that the business of death can be split into two parts: funeral homes and cemeteries. He added that most lawsuits stemming from funeral home abuses involve deceptive trade practices, price gouging, misrepresentation, and reneging on promises, as sometimes happens in the rendering of "pre-need" services where a customer may buy a burial plot and casket while still living.

Emotional distress causes of action may result from a funeral director presenting the wrong body at a funeral, flying a body to the wrong destination, or mistakenly cremating rather than burying the dead.

Lawsuits stemming from cemetery abuses usually focus on torts for desecration of a body and common law violations of double-selling a burial plot, burying a body in the wrong plot, reinterring a body in a different plot without permission from survivors, or, in one rare instance, burying trash from the cemetery along with the casket, Carey said.

Consumer advocate Lisa Carlson, executive director of the Funeral and Memorial Society of America (FAMSA), said, "In terms of funeral home regulation, all of the states are bad. The regulatory boards are dominated by industry people. It's like the fox watching the henhouse." (See FAMSA's Web site at http://vbiweb.champlain.edu/ famsa/dethrate.htm.)

Carlson said the biggest area of underregulation is in cemetery management. "Traditionally, cemeteries have been run by a town or the local church. You still may have a county cemetery, but you've also got the [privately owned] Forest Lawns. The laws simply haven't caught up with the changes in the industry."

Dennis Britson, president of the North American Cemetery Regulators, said regulations vary from state to state and that his organization is trying to get uniform standards for cemeteries all across the country.

The group plans to have a policy statement by next fall detailing what the standards should include, and it will present state lawmakers with model legislation, according to Britson. "We'll see then how receptive legislators will be. But even in states where few regulations now exist, consumer laws and fraud laws are there as a remedy." (See NACR's Web site at http:// www.ecodev.state.mo.us/nacr/.)

Life at the funeral home

The Rev. Henry Wasielewski, a Catholic priest in Phoenix, Arizona, who has made it his mission to advocate for grieving families and against the funeral industry, is particularly vexed by unsavory funeral home practices--some of them probably illegal, and some of them merely cruel and unethical.

Wasielewski and Carlson said their research has shown that funeral directors often charge exorbitant prices for funeral merchandise and services--not so much because they think they can take advantage of grieving survivors but simply because the market will bear it.

Further, they said that funeral directors are reluctant to release their price lists to consumers, making it difficult for the public to compare prices and making it unnecessary for funeral homes to offer competitive prices.

"Everyone knows what prices are [in retail stores], but they don't in funeral homes," Wasielewski said. "The only way you can charge $2,000 for something that costs $200 to $300 wholesale is to keep your prices secret." (See Wasielewski's Web site at http://www.xroads.com/-funerals/.)

Carlson predicted that the aging generation of consumer-savvy baby boomers will transform the industry.

"The baby boomers who wrote their own wedding vows and demanded natural child-birth are now insisting on having more involvement in their death care," Carlson said. "I don't believe the funeral industry is prepared for the baby boomers who are leading the natural funeral movement," which seeks to circumvent mortuaries and merchandising by making funeral arrangements through citizen-run memorial societies and cooperatives.

Carey, who handles a dozen funeral and cemetery abuse cases a year, noted similar changes within the industry.

"Thirty years ago, the whole funeral home industry was like a mom-and-pop operation," he said. "More recently, there's been a shift toward large corporations running the industry. It is an extremely rich and powerful industry."

Carlson agreed. "Because the corporate groups have mechanized the chain of procedures, each funeral home may be the same as the next--no matter whose name is on the sign out front," she said.

Carlson said the corporatization movement has escalated in the past 8 to 10 years, and not just in the funeral industry. "It's Barnes & Noble, not your neighborhood bookstore. It's Home Depot. Unlike these stores, which pass their economies of scale on to the consumer, the funeral industry passes its profits on to its stockholders," she said.

While there's nothing wrong with making a profit in America, Carlson said, funeral industry leaders should beware. "It really is too bad they are so convinced they are entitled to commit these kinds of abuses," she said. "Whether the lawsuits are going to come from the public or from employees operating in this kind of atmosphere, the industry is definitely going to face lawsuits.