Judge shoots down latest bid to stay funeral home suits

Jerry Espinoza, the lead plaintiff in a multi-party suit against Sunset Mesa Funeral Foundation, ties a ribbon of remembrance around a tree at Confluence Park in Delta during a 2019 ceremony. 

A judge has denied Megan Hess and related defendants’ bid to have multi-party civil litigation stayed.

Hess formerly operated Sunset Mesa Funeral Foundation, which did business as Sunset Mesa Funeral Directors and Donor Services, Inc. The former was a funeral parlor and crematory; the latter billed itself as obtaining donated human remains for research purposes.

Both closed soon after the FBI and state of Colorado served search warrants in 2018. Hess later surrendered her funerary and crematory registrations under an agreement with the state, in which she did not admit wrongdoing, although the state accused her of returning incorrect cremains to families and also of returning substances such as cement mix or cat litter instead of ashes.

Several civil suits filed accuse Hess of harvesting human remains and selling them without the knowledge or consent of next of kin.

In two of these, one captioned Espinoza, et. al. and the other, Abachiche, et. al., Hess, her father, Alan Koch, and her mother, Shirley Koch, filed for a stay until the criminal case pending against Hess and Shirley Koch is resolved.

In March, the women were federally indicted on counts of mail fraud involving 38 decedents and shipping the heads of decedents who had tested positive for hepatitis-C, the latter in violation of requirements for shipping hazardous materials. Federal prosecutors allege it was part of a scheme that spanned nearly 10 years and which involved promising survivors inexpensive cremation services as a way to ensure a ready supply of body parts Hess could sell, without properly informing survivors.

Hess and Koch, who are free on bond, deny the allegations. The federal case is pending, with trial tentatively set for next year.

In October, talk of a possible plea offer surfaced, outraging the families of the deceased who were allegedly harvested and sold without permission. There has been no formal announcement of the parties reaching a plea agreement.

In separate motions, Hess and her parents filed for a stay in both the Espinoza and Abachiche suits. They argued their Fifth Amendment rights to protect themselves against possible self-incrimination were at risk, if the cases were to be heard before the resolution of the federal indictment.

Montrose District Judge Mary Deganhart denied Alan Koch’s motion, finding that because he has not been charged or indicted, his Fifth Amendment rights are not at risk. She similarly denied a stay filed on behalf of a family trust.

Staying a civil action because of a criminal proceeding is an extraordinary remedy that depends in part on the degree to which issues overlap between the two cases; case status; the interest of the parties; the interests of the courts and the interests of the public.

Hess and Shirley Koch bear the burden of persuading the court and their mere assertion, without analysis, was insufficient, Deganhart said in a Nov. 2 order.

“Initially, however, the court would note it is unlikely that the admission or denial of allegations in the complaint would in any way compromise the defendants’ Fifth Amendment rights,” Deganhart wrote, denying the motion.

She held out the possibility the motion could be renewed if issues that do affect the women’s constitutional rights come up.

Two other suits remain active against Sunset Mesa defendants. In one, Artrup, et. al, a hearing on non-economic damages has been slated for Feb. 19, 2021.

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

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