Colorado’s governmental immunity act shields the Montrose County coroner from claims made against him in one of the multi-party lawsuits concerning Sunset Mesa Funeral Directors’ alleged illicit sales of bodies and body parts.

District Judge Mary Deganhart in a Nov. 7 order dismissed Dr. Thomas Canfield from a suit filed against multiple parties by more than 60 people, whose deceased relatives were handled through Sunset Mesa and allegedly dismembered and sold without the consent of survivors.

In the case captioned Espinoza et. al, Canfield was named along with several others, including Sunset Mesa’s former owner, Megan Hess. Sunset Mesa, now closed, was the subject of an FBI raid last year; the case is now under review and charges have not been filed.

Espinoza et. al accused Canfield of being part of a scheme to illegally obtain human remains for sale through Sunset Mesa’s associated business, Donor Services Inc., without permission from their next-of-kin. The plaintiffs’ attorneys from the firm Burg Simpson argued Canfield is not entitled to governmental immunity, because he engaged in “willful and wanton” conduct, constituting a waiver of such immunity.

But Deganhart’s order said the allegations against Canfield amount to a “speculative hunch,” rather than to the specific acts required to cancel out his immunity under the Colorado Governmental Immunity Act. Further, the plaintiffs did not establish any conduct on his part was a cause of their injury, she said.

The immunity act, or CGIA, shields public officials from litigation as was brought by the Sunset Mesa families, unless immunity is found to have been waived. Willful and wanton conduct is, under CGIA, acts or omissions that are a conscious disregard for the rights or safety of others, and allegations of that require specific facts to support a reasonable inference that they are true — a mere assertion of “willful and wanton” conduct is not enough, the Nov. 7 order indicates.

The dozens of plaintiffs in Espinoza et. al alleged Canfield routinely sent bodies to Sunset Mesa; routinely visited the funeral home and so, would have been in the position to see the “carved-up cadavers, body parts and commingled cremains,” plus he kept sending bodies there, even after being informed, in 2016, Sunset Mesa was providing counterfeit cremains. Per the plaintiffs’ argument, that amounts to willful and wanton conduct that cancels out Canfield’s immunity as a public official.

Deganhart said in her order that affidavits filed in the case “show that Dr. Canfield’s acts or omissions, even if willful and wanton, did not cause their injuries.” Per her order, a public official is immune from suit under CGIA unless his or her actions were willful and wanton — and the cause of the injury asserted.

“That means immunity is waived only if Dr. Canfield’s acts or omissions actually caused injury to the plaintiffs,” Deganhart wrote.

The evidence provided showed the coroner’s office kept a list of funeral homes that had agreed to be on-call to collect bodies in cases involving the coroner, and when the deceased’s survivors hadn’t decided where to send them.

Four of the deceased in the case at hand were sent to Sunset Mesa at Canfield’s direction. None of these plaintiffs allege Canfield’s actions directly caused them injury, Deganhart said.

“While the affidavits describe that Dr. Canfield or the coroner’s office may have incidentally participated in having the decedents’ remains transferred to Sunset Mesa, each of the plaintiffs acknowledge that either they or their deceased relatives authorized Sunset Mesa to perform the cremations,” the judge said.

“None of the plaintiffs allege that Dr. Canfield had any involvement in authorizing the cremations or that he pressured them into using Sunset Mesa’s services.”

Only one of these four defendants specifically alleged Canfield had transferred her loved one to Sunset Mesa without consent, but that same individual also said she personally requested cremation through Sunset Mesa, the order states.

The plaintiffs did not, therefore, establish a causal link between Canfield and the ultimate mishandling of remains as alleged, the court found.

Further, per the order, nothing submitted shows Canfield knew about the alleged illegal activity at Sunset Mesa or suggests that he knew it was “secretly dissecting bodies and illicitly selling body parts to third parties.”

Deganhart said a central allegation was that Canfield would have seen carved-up bodies when visiting Sunset Mesa, however, none of the investigations suggested the funeral home’s alleged illicit activities would have been conspicuous, or that Canfield would have been in the position to see any of those activities.

The only exhibit offered to so much as suggest Canfield was aware of wrongdoing was an email from another mortuary owner, who claimed he provided “fake cremains” from Sunset Mesa to Canfield, who allegedly said it was “no big deal.”

“However, the exhibit does not qualify as competent evidence because the statement is unsworn. Simply put, none of the plaintiffs’ exhibits can support a reasonable inference that Dr. Canfield knew about and consciously disregarded Sunset Mesa’s illicit activities,” Deganhart wrote.

Because Canfield has governmental immunity, Deganhart dismissed the claims against him for lack of subject matter jurisdiction.

Additionally, Deganhart in a separate order dismissed Southwest Institute of Biological Advancement, finding a Colorado court did not have jurisdiction over the Arizona-based company, because its alleged dealings in Colorado were not sufficiently established in the complaint.

In a third order, Deganhart rejected GJ Nielson Investment’s motion for summary judgment and for now, that company remains a defendant.

The company offered funeral services under the business name Legacy Funeral Home, but also had registered Mesa Funeral Service as a trademark.

The suit alleges that the company did business under that trademark and sent some of the bodies to Sunset Mesa for cremation. GJ Nielson Investment said it had been misidentified in the suit and did not offer funeral services under the trademark name, but only under Legacy. The owner supplied an affidavit to that effect.

However, Nielson retained the trademark for Mesa Funeral Services until at least April 24, per the Nov. 7 order, which said “a self-serving affidavit” was not sufficient grounds to dismiss Nielson GJ.

Other suits

Several other suits, making multiple claims related to fraud, civil conspiracy and outrageous conduct, have been filed against Sunset Mesa Funeral Foundation and other parties, including research firms that use human remains and the coroner, who as of Monday was still named in a second multi-party lawsuit, Abachiche, et. al, also filed by Burg Simpson.

A different suit ended with a default judgment in favor of plaintiff Julee Glynn, over the mishandling of her brother’s body.

A second, brought by Shirley Hollenback and Diana McBride over the mishandling of the body of Hollenback’s husband, ended with Megan Hess dismissed under agreement, and an August hearing on a judgment of default against the foundation defendants. An order determining what damages will be awarded was pending as of Monday.

Two other suits, Thorsby et. al and the newest, Artrup et. al, also are before the court.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

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