Clemencia Hillyer, Mary Rodriguez, Jose Rodriguez v. Michael Francis Brown, Pacific Family Funeral Home, Pacific Cremation Care Inc., et al.
Published: Feb. 15, 2005 | Result Date: Nov. 30, 2004 | Filing Date: Jan. 1, 1900 |Case number: GIC790944 Verdict – $450,000
Judge
Court
San Diego Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Mark A. Kalish, M.D.
(medical)
Defendant
Brian P. Jacks
(medical)
Facts
In December 2001, plaintiffs Clemencia Hillyer, age 62, and her children, Mary and Jose Rodriguez, were notified that the cremains they spread at sea were not those of Hillyer's husband and the Rodriguezes' father, who died of cancer in February 2001. Hillyer had contacted with Humphrey Mortuary for cremation of her husband's remains to fulfill the promise to spread his cremains at sea. Humphrey was one of at least 13 San Diego funeral homes that contracted with Michael Francis Brown's Pacific Crematorium Inc. to perform cremations or their behalf. In March 2001, Riverside County investigators seized human remains at Brown's office, including those of Hillyer's husband. These remains included Hillyer's husband head, shoulders and knees. Bio-Tech Anatomical Inc., Lake Elsinore, was a legitimate business set up by Brown for the sale of body parts. Brown was arrested and later entered a plea bargain in a separate criminal matter as to multiple charges of embezzlement and mutilating grave remains, except those of the Hillyer decedent. In August 2004, Hillyer received her husband's remains.
Settlement Discussions
The initial settlement demands from and her two children (Mary Rodriguez and Jose Rodriguez - who were stepchildren of the decedent) was $2 million. During the course of pretrial discovery, the plaintiffs' counsel made statutory demands for all three plaintiffs totaling $1.2 million. Prior to trial, the defendants made C.C.P. Section 998 offers of $50,000 to Mary Rodriguez, which was accepted; $150,000 to Jose Rodriguez, which was accepted; and $125,000 to Hillyer, which was rejected. Prior to trial, the Humphrey Mortuary defendants settled with all three plaintiffs for a confidential amount. As the result of a pretrial ruling, the parties entered into a stipulation that 50 percent of that settlement amount would be credited to become a setoff of any damages that would be awarded by the jury to Hillyer as the settlement amount from Humphrey Mortuary to all three plaintiffs had not been allocated. During trial, the defendants increased their settlement offer to Hillyer to $300,000.
Damages
The family claimed costs of $1,500 for psychiatric care, prescription costs and expenses for a second cremation. They further claimed emotional distress and past and future pain and suffering. Brian Jacks, a defense expert testified that their pain and suffering was part of the natural grieving process and was not due to the claims against defendants. The plaintiff's expert, Dr. Mark Kalish did not offer any opinions except to rebut the factual bases for the testimony of Dr. Jacks, contending that the professional opinion of a psychiatrist was not necessary to explain the family's emotional distress, pain and suffering as a result of defendants' negligence.
Result
On the first day of trial, the plaintiffs dismissed all of the intentional torts causes of action against the Crematorium defendants (Pacific Crematorium Inc., Pacific Family Funeral Home, Pacific Cremation Care Inc., and Michael Francis Brown). The plaintiffs then dismissed all of their claims against Bio-Tech Anatomical Inc. The case proceeded against the Crematorium defendants on the claims of negligence and breach of contract (on the theory that Hillyer was an intended third-party beneficiary of the oral arrangement between the Crematorium defendants and the Humphrey Mortuary defendant). The jury found that Hillyer should be awarded damages in the amount of $450,000 on the breach of contract cause of action. The jury found that Hillyer's negligence claim was barred by the applicable one-year statute of limitations. As a result of the stipulation entered into before trial by counsel for Hillyer and counsel for the Crematorium defendants to the effect that the Crematorium defendants would receive a $125,000 credit/setoff for any amount awarded by the jury to Hillyer for her emotional distress - as a result of the pretrial settlement between the plaintiffs and the Humphrey Mortuary defendants - the jury verdict was reduced post-trial by Judge Pate to $325,000, the net verdict amount. As a result of post-trial settlement negotiations, Hillyer ultimately accepted a total settlement offer from Crematorium defendants in the amount of $365,000 which included the amount of plaintiff's statutory memorandum of costs which was still set for hearing. This was the first case that was brought to trial against Brown and the other Crematorium defendants up to this date.
Deliberation
1.5 hours
Poll
10-2
Length
five days
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