A Staten Island judge has refused to dismiss a consolidated lawsuit accusing RTI Donor Services Inc., a tissue recovery firm, of using deceased people’s tissues that had been stolen, ruling that RTI did not need to have actual knowledge of the thefts for it to be liable.

However, in his Aug. 16 ruling in Human Tissue Litigation, 750000/08, Supreme Court Justice Joseph Maltese (See Profile) narrowed the claims and dismissed some of the individual plaintiffs. The Staten Island litigation includes 46 pending actions over the alleged tissue use, consolidated for discovery.

In 2002, RTI contracted with Michael Mastromarino, a former dentist, to buy human tissue. RTI officers began to question the company’s relationship with Mastromarino and months after he was hired, the company’s management asked its counsel, Jerome Hoffman, to investigate him.

Hoffman hired an investigator who found that Mastromarino had a criminal record, including a drug possession charge in his home state of New Jersey, which was resolved by a fine, and a misdemeanor conviction for unlawful use of a police uniform or emblem in New York. The investigator also found that Mastromarino had his dental license suspended twice in New York and surrendered it in New Jersey, but continued practicing. Hoffman warned against doing further business with him.

Nonetheless, RTI signed a renewed contract with Mastromarino in 2003.

In 2008, Mastromarino pleaded guilty to stealing tissue from bodies without the decedents’ consent through a scheme involving forged donor consent forms. He is currently serving 18 to 54 years in Wende Correctional Facility, a New York state maximum security prison in Erie County (NYLJ, March 3, 2008).

After Mastromarino’s scheme was exposed, family members of people whose tissues had been harvested by Mastromarino sued RTI for negligence, intentional and reckless infliction of emotional distress and loss of sepulcher. In moving to dismiss the consolidated suits, RTI argued that it had not committed the desecration of the bodies and that it had no duty to the family members.

Maltese rejected that argument.

“While counsel for the defense has vigorously argued that the moving defendants needed actual knowledge of Mastromarino’s propensity to desecrate bodies without proper consent before liability can attach, this court does not agree,” he wrote. “Indeed, the research conducted by Attorney Hoffman and his private investigators into Mastromarino’s background revealed that he was a person of questionable character as is evidenced in Attorney Hoffman’s e-mails to RTI executives. In particular, Mastromarino’s misdemeanor plea for improper use of police identification speaks to his prior bad acts of being untruthful with authority. While this act does not demonstrate Mastromarino’s propensity for the desecration of the dead, it does speak to his ability to present improper paperwork and authorizations to the defendants.”

The judge also rejected RTI’s argument that it was protected by the federal Uniform Anatomical Gift Act, which protects tissue processors that act in good faith.

“By creating a contractual duty to ‘audit/inspect’ Mastromarino and [his company] BTS, the moving defendants cannot now assert that they are entitled to the benefit of the good faith provision of the Uniform Anatomical Gift Act,” the judge wrote. “At the very least, this creates an issue of fact as to what measures, if any, were taken to audit or inspect their suppliers’ operation and what, if anything, did they do in spot-checking the voluminous sets of documents they were provided.”

However, the judge found that the plaintiffs’ negligence and infliction of emotional distress claims were duplicative of the loss of sepulcher claim, and dismissed them. He also dismissed several individual plaintiffs’ cases on statute of limitations and other grounds.

He ruled that the statute of limitations began running when each plaintiff became aware of the tissue theft, as the plaintiffs had argued, and not when the theft occurred, as RTI had argued.

The judge dismissed the case as to RTI Biologics Inc., a tissue processing company related to RTI Donation Services.

“We are pleased that the opinion dismisses the case against all tissue processing defendants, including RTI Biologics Inc. on the ground of a lack of a legal duty,” Joseph D’Avanzo of D’Avanzo Morreale, counsel to RTI, said in an email. “Separately, RTI Donor Services Inc. remains as a defendant, and it will appeal that portion of the decision which nullifies the protections accorded to it by the Uniform Anatomical Gift Act.”

Kimberly Baden of Motley Rice, an attorney for the plaintiffs, declined to comment.