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A trial judge in Fort Lauderdale, Fla., is scheduled to learn details today of a proposed $100 million global settlement of a class action lawsuit over desecration of hundreds of gravesites by cemetery workers in Broward and Palm Beach counties. But the hearing before Broward Circuit Judge J. Leonard Fleet is expected to reveal sharp differences between lawyers representing the plaintiff class and those representing plaintiffs who want to opt out of the settlement to pursue their claims individually against Texas-based Service Corporation International, the parent company of the Menorah Gardens funeral home chain. Attorneys for those seeking to proceed individually argue that the attorneys for the class would short their clients on punitive damages. They also allege that the lead attorneys for the class, Ervin Gonzalez of Coral Gables and Neal Hirschfeld of Fort Lauderdale, are conflicted in representing both the class and Broward plaintiffs who want to opt out of the class. At a hearing on Feb. 13 in a suit filed by a number of individual plaintiffs against SCI in Palm Beach Circuit Court, lawyer Gary Farmer Jr. of Weston, Fla., said that if the cemetery owner’s description of the punitive damages provisions in the global settlement is accurate, there is “potential for collusion” between SCI and the law firms where Gonzalez and Hirschfeld practice. The terms of the settlement are confidential. Farmer is co-counsel to the more than 60 families who filed individual claims against SCI in state trial court in Palm Beach County. Farmer’s co-counsel, Ted Leopold of Palm Beach Gardens, Fla., said there “appears to be a severe conflict of interest” on the part of Gonzalez and Hirschfeld. But Hirschfeld defended the proposed settlement, which he said allows no individual claims for punitive damages apart from those awarded to the class — even for those plaintiffs who opt out of the class. “Judge Fleet declared it a limited fund, as allowed by case law,” he said. “All Menorah clients will get a hearing on it.” In an interview, Gonzalez said there were no conflicts of interest because all the individual Broward plaintiffs had received “accurate and complete” disclosure of his and Hirschfeld’s activity. “There are no side deals,” he said. The class action was filed in December 2001 after it was discovered that employees of Menorah Gardens cemeteries in northern Palm Beach and western Broward counties had oversold plots and displaced and degraded the remains in thousands of gravesites. Families of the deceased filed a class action lawsuit against Menorah and parent company, Houston-based SCI, in Broward Circuit Court. They alleged intentional infliction of emotional distress as well as violations of state burial laws. Last August, Judge Fleet certified the class. That order, which has not been finalized, is currently on appeal before the 4th District Court of Appeal. Meanwhile, Gonzalez and Hirschfeld announced that 12 families they represent whose alleged injuries were among the most egregious would opt out of the class and try their cases separately. There also are individual plaintiffs from more than 60 families who in April 2002 filed a separate lawsuit against SCI in Palm Beach Circuit Court and plan to opt out of any class settlement. They are represented by Farmer and Leopold. Last December, on the eve of the first trial of a Broward individual who opted out of the class, Service Corporation International proposed a $100 million class settlement. The case that was set for trial involved inflammatory allegations that cemetery employees scattered the bones of the late Air Force Col. Hyman Cohen to make room in his grave for other bodies. According to Gonzalez, the settlement proposal includes $35 million for all individual nonclass claims and $65 million for class claims. The more detailed version of the settlement to be submitted today for Judge Fleet’s approval was devised by attorneys for SCI in consultation with attorneys from Colson Hicks & Eidson, where Gonzalez is a partner, and from Greenspoon Marder Hirschfeld Rafkin Ross & Berger, whose partner Neal Hirschfeld is co-lead counsel with Gonzalez. The attorneys for the Palm Beach County plaintiffs — Farmer, a partner at Freedland Glassman Farmer & Sheller in Weston, and Leopold, a partner at Palm Beach Gardens-based Ricci Leopold — were not party to the settlement negotiations. They object to key parts of it as interpreted by the other attorneys and question the ethics of the settlement process. MORE CLAIMS SOUGHT The dispute between the various plaintiff attorneys in the case centers on whether the individual plaintiffs can seek punitive damages outside the global settlement. At last week’s hearing in Palm Beach Circuit Court, the individual plaintiffs asked Circuit Judge Art Wroble for permission to add claims for punitive damages to their suits. Farmer told Wroble that the legal standard for punitive damages — intentional misconduct or gross negligence — was met because SCI’s “wrongful conduct with dead bodies is so outrageous … [that] emotional distress is presumed.” But SCI’s attorneys argued that Judge Fleet’s class certification order in Broward Circuit Court bars any claim for punitive damages to Menorah Gardens plaintiffs separate from the punitive damages awarded in the global settlement. “This is a mandatory punitive class,” including even those plaintiffs who opt out of the class, said Barry Davidson, a partner at Hunton & Williams in Miami. He represented SCI along with Dennis O’Hara, a partner at Wicker Smith O’Hara McCoy Graham & Ford in Fort Lauderdale, Wroble deferred a ruling on the request to add a claim for punitive damages. He said he would wait for Fleet to rule on the proposed $100 million settlement. After that, he said, both sides would have 10 days to prepare proposed orders on the punitive damages request. In an interview, Davidson said that separate claims for punitives by the Palm Beach plaintiffs are barred by federal case law and by Florida’s Rules of Civil Procedure. Farmer and Leopold dispute both those points. The attorneys also clashed over the interpretation of Florida’s punitive damages statute. That law prohibits claims for punitive damages in civil suits against a defendant for “the same act or single course of conduct” for which the defendant has already paid punitive damages. SCI and the class plaintiff attorneys said the law bars a claim for punitive damages by the Palm Beach plaintiffs. “The law says you only get one bite at the apple,” Davidson said. But Leopold and Farmer said the state punitives statute doesn’t apply because their clients’ claims are based on acts distinct from those alleged by the class plaintiffs. And they said the tortious acts committed by SCI predate the statute, 768.73, enacted on Oct. 1, 1999, which does not apply to acts that occurred before its enactment. “[Gonzalez and Hirschfeld] have embraced a statute that actually limits their potential recoveries in future cases,” said Farmer, a partner at Freedland Glassman Farmer & Sheller. “They’re letting SCI off lightly.” He said the arrangement smacked of collusion. But since the settlement is still confidential, he could only speculate as to what the quid pro quo might be. Leopold, a partner at Ricci Leopold, said that the punitives proposed in the global settlement won’t be enough for all the plaintiffs. But SCI attorney Davidson said there was “no way” to put a realistic number on the allocation of punitives. He said it was mostly up to the class plaintiff attorneys “to cut up the pie.” Gonzalez said he didn’t know the exact percentage of punitives in the proposed settlement, but he expressed confidence that the deal would be fair to all the plaintiffs, including those in Palm Beach County. The Palm Beach County plaintiffs, he said, would have the opportunity to shape the final numbers when Judge Fleet holds mandatory fairness hearings on the settlement. And he promised to ask Fleet to hold separate hearings, apart from the fairness hearings, on the question of plaintiffs opting out from the punitives. “The [Palm Beach Circuit Court plaintiffs'] worst case is that they will sue separately for compensatory damages and have the punitives in their pockets” from the global settlement, Gonzalez said. “If they opt out, it only means more money for the class,” he said. But Leopold expressed doubt that the proposed global settlement would serve his clients well. “We think there will be more for our clients if we litigate punitive damages on our own,” he said. “If the settlement in any way, shape or form resembles what Davidson described to Judge Wroble, we will go all out to fight it.” Leaders of the Florida Bar committee on professional ethics said that Gonzalez and Hirschfeld face ethical dilemmas in representing both the class and individual Broward plaintiffs who are proceeding individually. Ethics committee chair Gary Lesser, a partner at Lesser Lesser Landy & Greene in Palm Beach, said it was “ethically tricky” for attorneys for an entire class to be making decisions that will affect the interests of individuals who plan to opt out. But, he said, “these are very experienced class action lawyers. They know what their obligations are.” Editor’s Note: The above story erroneously stated that a hearing was scheduled in the Menorah Gardens class action suit on February 20 before Broward Circuit Judge J. Leonard Fleet. Details of a class action settlement were to be conveyed to him, but that was postponed.

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