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It’s a case of old bones rising-literally. Civil attorneys involved in the Tri-State Crematory case-in which scores of remains that were supposed to have been cremated were discovered buried on crematory grounds in 2002-found boxed human bones in an evidence room in Walker County, Ga. A paralegal first found them and told the attorneys. They, in turn, told her to put them back, thinking they were bone chips used for DNA analysis, said Stuart James of Goins, Carpenter & James in Chattanooga, Tenn., who is co-counsel for the defendant owners and operators in all the civil litigation. “But, later, when we looked inside, we found these mini ziplock body bags with skeletal remains with tissue on them,” James recalled. The macabre scenario is the latest twist in a case that has caused untold grief and triggered an explosion of lawsuits and a number of criminal charges. Last month, in a class action, U.S. District Judge Harold Murphy denied a summary judgment motion brought by the more than 50 funeral-home defendants in three states-Georgia, Alabama and Tennessee-that had sent remains to Tri-State for cremation. Murphy found that the defendants had a duty to ensure that funeral arrangements were performed properly. Whether the defendants breached that duty is now a question for a jury. The owners and operators of the crematory are also named as defendants. More than 1,500 class members have sued for, among other things, breach of contract and negligence. The trial is set for March 1. In re Tri-State Crematory Litigation, MDL No. 1467 (N.D. Ga.). “Every family wants to know why it happened and why the funeral homes that they trusted didn’t fulfill their obligations,” said attorney Kathryn Barnett of the Nashville, Tenn., offices of San Francisco’s Lieff, Cabraser, Heimann & Bernstein. Elizabeth Cabraser, who is based in San Francisco, is lead counsel. Two funeral homes have settled with the plaintiffs, one for $8.7 million and one for $65,000. Four other settlements have preliminary approval, said Robert Smalley of McCamy, Phillips, Tuggle & Fordham of Dalton, Ga., the plaintiffs’ liaison counsel. Settlement negotiations continue, he said. But those settlements do not foretell the liability of other funeral-home defendants, said Andy Davis of Rome, Ga.’s Brinson Askew Berry Seigler Richardson & Davis, their liaison counsel. “This is not a defendants’ class, it is a plaintiffs’ class, and each funeral home dealt with the crematory differently and over different periods of time.” Funeral-home defendants have filed cross-complaints against Tri-State’s owners and operators for breach of contract. They seek indemnity. “Defendants, too, look forward to their day in court because they too were victimized by the crematory,” Davis said. No final determination has been made as to what kin will be allowed to be included as members of the class in a state class action brought in Tennessee. Oden Jr. v. Taylor Funeral Home, No. 02-C-414 (Hamilton Co., Tenn., Cir. Ct.). Brent Marsh, the operator of the crematory since about 1996, is facing 787 felony charges in Walker County arising from the manner in which he allegedly disposed of the bodies at the Noble, Ga., crematorium. Ringgold, Ga., solo practitioner McCracken Poston is co-counsel for Marsh in the criminal case. He asserted that it was “overkill from day one charging him multiple ways per identified body.” He attributed the number of charges to the media frenzy that the discovery of the bodies attracted and to politicians making hay. The district attorney’s office refused comment on any part of the case because of a gag order. Marsh, his mother and his father’s estate are also defendants in dozens of individual suits, some of which were brought by some of the 54 people who opted out of the federal class. The crematorium was located adjacent to Marsh’s parents’ home. Most of the remains were found on the 16 acre-site. Approximately 1,600 decedents were sent there for cremation between 1988 and 2002. The federal court chose the 1988 cutoff date because that was the earliest date on which an identified set of remains returned to a next of kin had evidence of adulteration-metal mixed in, Barnett said. But James countered, “[t]here’s a chance of adulteration of remains whenever they’re cremated.” More than 330 remains were found on the property, 111 of which are still unidentified. Forensic pathologists have not identified any remains older than 1997. “There were also pits and piles of cremated remains,” Barnett said. “A number of people got things like cement.” In the evidence room, James saw a skull and hand with some flesh still on them, as well as a forearm that was found in a box where civil attorneys and paralegals copied criminal files in an annex of the county sheriff’s department. The bones, inadvertently left amidst boxes of files, were later picked up by the coroner’s office. Civil attorneys gained access to the criminal discovery files because of a November 2003 order of Superior Court Judge James Bodiford. The order allowed them to copy the voluminous files at no expense to the county if they gave a free copy of the files to Poston. Post’s e-mail address is [email protected]

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