Dozens of people who are suing over the alleged mishandling of human bodies have a quarrel with Sunset Mesa Funeral Directors, not the Montrose County coroner, his attorneys argued in an Aug. 1 filing that reiterates he should be dropped from the multi-party litigation.
Two different groups of people who obtained funeral and cremation services for family members through Sunset Mesa Funeral Directors have filed separate lawsuits against Sunset Mesa Funeral Foundation, mortuary owner Megan Hess, her parents and several other parties who they allege knew or should have known that bodies were being dismembered and sold without the knowledge or consent of next of kin.
The former Montrose funeral parlor is also under FBI investigation; charges have not been filed and Hess denies wrongdoing.
Both cases were filed by the firm Burg Simpson.
In the first, captioned Espinoza et. al, more than 60 people have sued, alleging against various defendants outrageous conduct, unjust enrichment, fraud, negligence, negligence per se, aiding and abetting, civil conspiracy, Colorado Consumer Protection Act violations and violation of the Colorado Organized Crime Control Act. (Not all defendants are accused in each of the claims.)
Dr. Thomas Canfield, Montrose County coroner, moved for dismissal in May after the plaintiffs accused him of being part of a scheme to illegally obtain and dispose of human remains.
That dismissal motion argues all claims are barred by the Colorado Governmental Immunity Act; says there is no evidence that Canfield deliberately funneled traffic to Sunset Mesa; that the majority of defendants lack standing to bring a claim and that no claim has been presented for which a court could grant relief. Instead, attorneys Eric Ziporin and Joseph D. Williams said, there are only broad allegations that he somehow was part of a scheme.
The plaintiffs in June pushed back. Their attorneys said in a response to Canfield’s motion that Canfield has not established immunity and their clients should have 120 days to conduct targeted discovery (evidentiary material process) on the disputed jurisdictional issues.
Canfield’s dismissal motion does not clear the legal hurdles necessary to be granted and bears the burden of proving he is entitled to immunity, attorneys Michael Burg, David TeSelle and Holly Kammerer argued.
The coroner also is not entitled to sovereign immunity because he transferred bodies to Hess with “willful and wanton disregard of the illegality going on there,” the response states.
The document reiterates previous allegations that Canfield was regularly at Sunset Mesa and “even a cursory inspection” would have revealed something was not right, including “grotesquely carved up cadavers,” lack of documented consent and co-mingling of cremains.
In their Aug. 1 reply filed in support of the earlier dismissal motion, Ziporin and Williams said nothing has been offered to support such assertions. Rather, the exhibit cited was the state’s order of summary suspension from February 2018, which was directed to Sunset Mesa.
It “has nothing to do with the condition of the funeral home and certainly, there is no discussion of ‘grossly carved up cadavers.’ For plaintiffs to cite (exhibit) in support of the conditions of Sunset Mesa is misleading,” the attorneys wrote, adding further the exhibit has nothing to do with Canfield.
The plaintiffs also offered the state’s stipulation and final order permanently canceling Hess’ crematory and funeral home registrations. Once again, “there is no support” for the description of Sunset Mesa, or mention of Canfield, his attorneys said.
Instead, they said, the plaintiffs “ineffectively” tried to offer evidence from which the court might infer Canfield “should have known of grotesque conditions inside Sunset Mesa.”
Per the document, Canfield’s office had inspected Sunset Mesa in 2007 before adding it to the rotation for body pick-ups; “at no point in time did Dr. Canfield observe any of the horrifying conditions described in the response.”
The Espinoza plaintiffs also said multiple complaints filed with government agencies in Delta, Montrose and Mesa counties, as well as the state of Colorado, raised concerns about Sunset Mesa as far back 2014.
But they did not allege Canfield himself received these complaints or knew of the ones to the government agencies, the coroner’s defense team said, and further, their client did not receive the complaints that triggered the allegations.
Using the summaries of such reports is insufficient to support allegations of willful and wanton conduct, the attorneys said — and the defendants cannot rely on cited newspaper articles or emails from another funeral director to prove Canfield waived his immunity.
The plaintiffs’ attorneys contended in their June filing that Canfield’s attorneys are wrong in their lack of standing argument: all plaintiffs were injured as the result of his alleged conduct, per the response document.
The families’ factual allegations, further, do support the relief they seek, the document also says, reiterating their basic claims for outrageous conduct, unjust enrichment, negligence, negligence per se, aiding and abetting, civil conspiracy and the Colorado Organized Crime Control Act.
The motion should be denied, Burg, TeSelle and Kammerer said.
Ziporin and Williams said the plaintiffs are required to allege specific facts, not merely “minimal facts” and failed to do so, misconstruing case law.
A discovery hearing is not necessary, because no facts were provided showing Canfield was part of a conspiracy, let alone “willful and wanton” conduct, they said, going on to reiterate previous points about standing and statements of claim.
“Plaintiffs have compiled ample evidence against Sunset Mesa and its owners/employees and have attempted to shoehorn the evidence in this case into their claims against Dr. Canfield,” Ziporin and Williams said.
Other actions in case
On Monday, Hess sought a stay in the Espinoza suit, while her parents, Alan and Shirley Koch, each filed a motion seeking to be dismissed from the action.
Alan Koch’s motion says he was an employee — a groundskeeper — not an owner, and was not privy to information raised in the complaint concerning the management of the company. Further it is “completely false” for the complaint to say he owned a trucking company. If he is to be held liable for the business, why not Sunset Mesa’s other employees, his motion asks.
Further, without access to the records of the closed business, it is “impossible” for him to recall any of the cases, the motion also states.
The motion to dismiss Shirley Koch also says she was an employee, not an owner, was not privy to the information raised and, without access to records from the closed business, it is impossible for her to recall the cases. The motion suggests she is being “singled out” because she is Hess’ mother.
Hess in her own motion said a stay is needed until all records and files are returned to her.
The records and files were apparently taken under the FBI’s search warrant.
“There is no way humanly possible for the defendant to provide an accurate answer to the case based on memory to these claims without records and case files to reference,” she said in the Aug. 5 filing, which labeled the complaint “outlandish” and characterized its language as “outrageous.”
“If plaintiff can make such disgusting, horrific and outrageous lies and claims, defendant should get the opportunity to access the funeral home and Donor Services records in order to defend these lies and claims,” Hess wrote.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.