A jury should be allowed to hear the allegations of “body brokerage” made against former funeral director Megan Hess, attorneys for the family suing Hess over the handling of cremains say.
Because genuine disputes of material facts remain, Hess should not be granted her March dismissal motion, attorney Aaron Acker said in a May 10 response.
Hess formerly operated Sunset Mesa Funeral Home and the associated Donor Services Inc.
The widow and stepdaughter of Gerald “Cactus” Hollenback sued last year, soon after news of an FBI investigation into the Montrose mortuary broke.
Shirley Hollenback and Diana McBride allege Hess returned to them the cremains of someone other than their loved one and that his body was used for “unauthorized purposes.”
The women were the first of multiple parties to file civil suit over alleged mishandling and selling of human remains; the FBI’s investigation was at last report ongoing and no charges have been filed.
Hess has denied wrongdoing.
Hess in her March motion to dismiss the Hollenback suit contended there is no evidence, only “hysterics” and sensational accusations designed to hit the media and cast her in a bad light.
But the dismissal motion doesn’t pass legal muster, Acker countered in the response.
To begin with, plaintiffs counsel did not receive a copy of the motion, despite Hess saying she mailed it, he said, accusing Hess of not playing by established rules of legal procedure and of offering “unsupported” evidence.
Acker contended Hess shows “continued disregard” for procedures, from which she is not exempted just because she represents herself.
Her motion is so deficient that it is difficult to file an appropriate response, Acker also said.
“The motion sets forth in narrative form expert opinions, factual allegations and hypotheticals, with ignoring the most crucial component to any request for relief, the law,” Acker said, calling on the allegations to be stricken because they are not supported by sworn testimony or evidence.
Hess did not provide sworn affidavits to support her assertions or relevant supporting evidence beyond a few initial disclosures, the response says.
Crucially, Hess’ motion is one for summary judgment, even though it is presented as a dismissal motion, Acker also said.
For summary judgment to be granted, the moving party must demonstrate that no issues of material fact exist; Hess has fallen well short of that requirement, Acker said.
Nor did she furnish legal basis for dismissing the suit, he also said.
“Notwithstanding the fatal legal and evidentiary deficiencies in the motion, Hess’ defense to the claims is largely predicted on evidence of her knowledge of the cremation process, the cremation industry and her opinions on the effect of cremation on the human body,” Acker wrote.
The Hollenback suit alleges the ashes eventually returned to the family contained remnants of a watch, zipper and other metal items; Gerald had been wearing only pajamas when he was taken to Sunset Mesa.
Hess in her dismissal motion said Gerald had been cremated inside a body bag, which has metal rivets and a zipper; she also said the brick and mortar of cremation ovens degrade over time due to heat, which can release particles of other ashes and lead to unavoidable “commingling.”
But this and other explanations should be stricken because they fall under the umbrella of expert knowledge and Hess is by procedural rules precluded from providing expert opinions without disclosing she would be doing so, Acker said.
This has effectively precluded Hollenback and McBride from being able to counter Hess’ opinions, resulting in “significant prejudice if considered,” the response states.
Further, there remain issues of material fact concerning cremains and their composition. The plaintiffs have retrained an expert to testify concerning the weight of ashes after cremation; further, the plaintiffs intend to elicit testimony from Hess’ parents, Alan and Shirley Koch, and others concerning the business practices at Sunset Mesa and their knowledge about Gerald’s cremation.
Acker said Hess’ conduct provides “strong inference” in support of his clients’ allegations, including: That Shirley Hollenback heard Alan Koch tell another witness her husband’s cremains had been misplaced and that the cremains weren’t given to her in a timely manner. (Hess has alleged in her dismissal motion the delay was due to her having been out of town and Shirley Hollenback insistence on being the only person to whom the ashes were given.)
The disputes at hand involve matters of material fact, Acker indicated. Also, he said, there is “strong inference” to be drawn from the fact that Sunset Mesa had its mortuary and crematory registrations revoked.
Acker said the plaintiffs want to introduce evidence from similarly situated former clients of Sunset Mesa and to present evidence from the Colorado Department of Regulatory Agencies.
That entity, in its initial suspension of Sunset Mesa’s registrations, alleged multiple violations of the Mortuary Science Code and also specifically referred to the issue with Gerald Hollenback’s ashes.
“All of these themes of evidence that will be presented at trial will allow the jury to determine whether Gerald Hollenback was part of the scheme to benefit from the ill-begotten body brokerage business,” Acker said in the filing.
That question is properly answered by a jury and Gerald’s survivors should be allowed their day in court, he concluded.
Katharhynn Heidelberg is the senior writer for the Montrose Daily Press. Follow her on Twitter@kathMDP.