Posted on Wed, Aug. 20, 2003

Class-action suit in burial case OK'd

By Noah Bierman
nbierman@herald.com

A judge cleared the way Tuesday for tens of thousands of people to collect money from a national funeral home company accused of desecrating graves at Jewish cemeteries in South Florida.

Broward Circuit Judge J. Leonard Fleet's 42-page ruling is a significant step in a lawsuit that has unearthed numerous grisly discoveries at two Menorah Gardens cemeteries, one in northern Palm Beach County and the other in western Broward County. Most of the allegations stem from crowding problems that led the cemetery to mistakenly mark and disinter graves, a violation of Jewish law.

Fleet ruled that anyone who owns a plot or whose close family member is buried in one of the two cemeteries is automatically part of the lawsuit against funeral operator Service Corporation International, based in Houston.

Plaintiffs' attorneys said that could amount to 100,000 people, while SCI says the number is much lower. The company plans to appeal Fleet's ruling.

The class-action status, a common tool in suing large corporations including tobacco companies, makes it easier for plaintiffs to pursue their case because they do not have to interview witnesses separately for each incident. It also increases the number of people who may collect damages, because class members do not need to hire their own attorneys and are assumed to be part of the suit unless they opt out.

At a news conference Tuesday, plaintiffs' attorneys Ervin Gonzalez and Neal Hirschfeld held up giant photographs of broken vaults and scattered bones. They showed an enlarged company document with the hand-printed inscription: "THESE ARE IN WRONG GRAVES!" They played a videotape of a former cemetery employee who spoke of high-pressure sales tactics at the expense of service.

Gonzalez said the plaintiffs are on a "crusade" to correct problems of mistakenly marked and moved graves at the Jewish cemetaries that have emerged during nearly two years of litigation.

"We want to bring back the sanctity of this Jewish cemetery," Gonzalez said, before introducing several elderly people who told tales of loved ones with tongues cut off and bones squeezed out of their vaults.

SCI has argued that the problems are isolated and the company has tried to correct them since buying the cemeteries in 1995.

"In some very isolated cases, some folks did some things they shouldn't have done, and that's a serious issue," said Don Mathis, company spokesman.

Fleet's ruling, which relied on several months' worth of hearings, characterized the problem as much larger. He wrote that the company acted in secret when tossing bones, breaking vaults, burying bodies on top of each other and mixing body parts. He cautioned that those conclusions were only drawn for the purposes of Tuesday's ruling and may change as the case progresses.

Ultimately, it would be up to a jury to decide the facts of the case if the parties do not settle.

Jack Scarola, a plaintiffs' lawyer who has handled about two-dozen class-action suits, said Fleet's ruling makes settlement increasingly likely. Scarola, who is not involved in the Menorah Gardens case, said creating class-action status turns up the pressure on defendants.

"They are now facing a single, consolidated preceding instead of dozens or hundreds of separate precedings," said Scarola, whose firm is based in West Palm Beach.

But SCI attorney Barry Davidson said in his appeal, he'll rely heavily on a key ruling in Miami three months ago that overturned the $145 billion judgment against the tobacco industry. The Third District Court of Appeal in Miami said the trial judge in that case should not have let all Florida smokers pursue their case as a group because individual circumstances differed too much.

Davidson likely will make a similar argument because many Menorah Gardens plot owners have not suffered any specific problems. Fleet addressed that question in his ruling by offering the possibility that plot owners with the most egregious problems may get "mini trials" at the end of the suit that would result in greater payouts.

Fleet has already ruled that SCI may be subject to punitive damages, meaning that if the company loses the lawsuit, it could receive heavy fines aimed at deterring other companies from similar actions.

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