Dead Wronged – Times Publications, July 2008
Nearly every year on the anniversary of Marlin Cumming’s death, his family would visit Sunland Memorial Park mausoleum to mourn their loss, sharing stories about his life, talking about how much they missed him—feeling more connected to his spirit.
It was a tradition they kept for more than 20 years.
“I always thought that’s where he was, that’s where daddy is,” says Marlin’s daughter Caroline Piepenbrink, a Gilbert teacher.
That all changed in 2002, when Piepenbrink’s mother Frances died and she went back to the mortuary to fulfill Frances’ final wishes—for her ashes to be placed in a companion niche in the mausoleum next to Marlin’s, her husband of 33 years.
But when the niche was opened, they discovered it was empty and that Lundberg Mortuary could not find Marlin’s remains.
“They had no clue. They were scrambling,” says Piepenbrink’s son Steve.
Confused and angry, Steve asked for a copy of his grandfather’s file, which he says they reluctantly handed over.
In it, he found a notation that said in part, “Marlin Cumming, scattered in desert, 12/18/84.”
An investigation by the funeral home confirmed Marlin was never placed in the niche marked with his name. Instead, documents revealed that his ashes were stored in a garage at Lundberg Mortuary for eight years, until the mortuary was bought by Service Corporation International (SCI), the nation’s largest death-care service provider.
After the management had changed, SCI cleaned out the garage and scattered the ashes in the desert.
“I was in pure shock to find out that he had never been there at all,” Piepenbrink says. “Then I got angry. I was like, ‘You mean I’ve been going there for 20 years and no one has been there?’ I felt used, like I’d been had.”
Attorneys for SCI say a certified letter was sent to the family prior to the scattering of ashes, but that it was returned because Frances had moved. A copy of the letter was never produced, and Piepenbrink denies her family was ever contacted.
“In the eight years during the time he was being stored, there was never a phone call, never a letter, nothing,” she says. “I went with my mother when we made the arrangements for daddy, and they told her they would take care of putting the ashes in the niche. So we always assumed they were there. We trusted them.”
Claims of mortuary mistakes, including lost ashes, cremation mix-ups, botched embalming and bodies being buried in the wrong graves, have plagued the funeral industry for decades.
While funeral directors say the incidents are rare and on the decline, several funeral-industry critics contend there are many hidden problems and that an increasing lack of industry accountability, compounded by recent legislation, is leaving grieving families, like the Piepenbrinks, with few options for recourse.
In the past five years there have been 97 complaints filed with the Arizona Board of Funeral Directors and Embalmers. The complaints range from billing concerns and unprofessional services to cremation mistakes and improper embalming. One Phoenix-area funeral home was reported to have mixed three bags of unidentified body parts in with other corpses for cremation.
On average, there are more than 47,000 deaths in Arizona each year, and such incidents are statistically rare. But critics say that since mistakes are seldom discovered and often go unreported, these incidents may lend only a glimpse into a more prevalent problem with the state’s 206 funeral homes and crematories.
“Most people aren’t even aware they have legal rights as funeral consumers, or that there is even a regulatory body to turn to if they have a complaint,” says Joshua Slocum, executive director of the National Consumers Alliance.
Phyllis Rowe, a consumers’ advocate who sits on the Arizona funeral board, agrees that many problems go unreported.
“At the time, they are at such shock and grief that I don’t think they can really contemplate complaining,” she says. “They don’t want to relive the experience. They don’t want to have to go through that again.”
Even in cases where complaints are reported, many families are left without a final resolution.
A Times investigation found 45 percent of those complaints filed over the past five years were ultimately dismissed.
In 24 of the 51 complaints where the board found fault, the board’s remedy consisted of a letter of concern. In the remaining cases, penalties ranged from $250 and a letter of reprimand to a $4,000 fine and one year of probation. One funeral director was forced to surrender his license.
Funeral board officials say penalties are uncommon because wrongdoing is often difficult to prove and because most complaints are minor and don’t warrant action.
“Most complaints result from miscommunication or misunderstandings,” says Rudy Thomas, executive director of the state funeral board.
Critics, however, say the problem may be related to the funeral board itself, the majority of which is comprised of funeral directors with a vested interest in preserving the image of the industry.
“Generally, funeral boards are dominated by industry members,” says Slocum. “This ‘self-regulation’ naturally leads to complaints being swept under the rug, as the industry is often more interested in protecting itself than in protecting the consumer.”
Arizona’s funeral board consists of four practicing funeral directors and three consumer members who are appointed by the governor. Many other state boards have more public members, Rowe says. Texas and California disbanded their funeral boards and now use bureaus overseen by state employees.
In 2003, an audit of the board by the state auditor general showed there was not an efficient method of taking complaints, though Thomas says the problem was corrected.
Of the 23 complaints made to the board last year, 11 were dismissed, including Piepenbrink’s.
“We thought that the funeral board would sanction them or something, but they wouldn’t do anything. They would not even address the ethics issue,” Piepenbrink says. “One of the board members even commented that it was ludicrous that I would be bringing this up now, 20 years after it happened. I was like, ‘How dare you, we just found out.’”
The board found that because there were no rules or statutes at the time the remains of Piepenbrink’s father were tossed, and no action could be taken.
“At one time (cremated remains) of the deceased were considered residue, not parts of the body,” says Thomas, of Piepenbrink’s case. “Now it’s obviously different.”
Thomas also says legislation has changed many operating procedures at Arizona funeral homes, leading to a reduction in the number of serious complaints they receive.
“Mistakes will happen,” he says. “But the industry has come a long way in the last 10 years.”
A plastic bag of cremated remains sits on Richard Martinez’ closet floor. They are supposed to be those of his beloved wife of 52 years, Gloria, but Martinez has his doubts.
“I don’t know what happened to her,” he says. “I don’t know whose ashes I have. I don’t have much faith that they’re Gloria’s.”
After Gloria died of a heart attack during a routine shoulder surgery in 2002, Martinez was terribly grief-stricken. Unprepared to plan a funeral, he picked Melcher’s Mission Chapel out of the phone book due to its close proximity to his Mesa home.
Concerned that his wife’s heart condition might be genetic, Martinez asked the funeral director if he could refer him to a pathologist to perform an autopsy on his wife’s body. The funeral director referred Martinez to Dr. Miluse Vitkova and Martinez paid $2,400 for Vitkova to perform the autopsy.
Afterward, Gloria’s body was cremated.
A few weeks later Martinez received an autopsy report in the mail, which described a 170 pound, balding Caucasian man.
“It had Gloria’s name but described a male Caucasian with male genitals,” Martinez says. “I said, ‘What is going on here?’ I was in such grief… it was traumatizing.”
Martinez complained to Vitkova, and a few days later he received a replacement report. It too identified the same male patient.
Outraged, Martinez says he again called Vitkova and later received a third report along with a check for $500 and a handwritten note that read ‘sorry.’
That report correctly described Gloria as a 135-pound female; however, items, including the liver weight, down to the gram, were identical to the two previous reports.
“It was the same information as the previous two reports,” he says. “I have no faith at all in the autopsy report. No faith at all.”
Suspecting an autopsy was never actually performed, Martinez began his own investigation and discovered a paper trail that suggested Gloria’s body was delivered to a hospital morgue in north Phoenix, but he says there is no record of Melcher’s receiving her body back from the morgue.
Soon afterward, Martinez says he was approached by another family who had had a similar experience with Vitkova and learned the doctor’s assistant at the time was employed by two companies to procure human tissue and organs, which has left Martinez with a suspicion that Gloria’s tissue may have been illegally harvested.
Martinez filed a lawsuit to uncover answers about what became of his wife’s remains, but was ultimately left with more questions than answers.
His lawsuits have been dismissed three times. Vitkova received a letter of reprimand from the Arizona Medical Board for Unprofessional Conduct in the case. Neither Melchers Mission nor its owner, SCI, have been found responsible for any wrongdoing or shown to have any link with body harvesting. The attorney who represented SCI against Martinez did not respond to requests for comment.
Because his wife was cremated, Martinez will likely never learn what actually happened after she died, though he says he plans to continue his legal battle in federal court, not for financial gain, but to learn the truth.
“I was just a guy who was deeply in love with his wife of 52 years,” he says. “I just want justice, that’s all.”
Funeral critics say even in cases where egregious errors have been proven, families are typically left with no recourse or compensation.
Arizona laws generally protect funeral homes from liability when mistakes are made.
“The consumer doesn’t really have a good chance,” says Rowe, who in addition to serving on the state funeral board is also the vice president of the Arizona Funeral Consumer Alliance.
In the past decade, many funeral laws have been established to reduce the number of mistakes and protect consumers. For instance, crematories must now maintain a procedure for identifying remains that includes attaching a metal identification disk with the body and funeral homes are required to present a complete price list to anyone who inquires about funeral services.
However, these same laws grant immunity to crematories, cemeteries and funeral establishments from any criminal or civil liability as well as any professional discipline as long as they are deemed to have acted in “good faith.”
There are a handful of laws that put funeral consumers at a disadvantage, says Father Henry Wasielewski, of Tempe, a retired Catholic priest and funeral industry watchdog for more than 20 years.
“This whole industry is just crooked,” he says. “Juries should decide who is at fault. There shouldn’t be a law that prevents families from seeking damages. If funeral homes can’t get sued, why should they worry about what happens to the ashes?”
Wasielewski founded the Interfaith Funeral Information Committee as an informational resource for consumers and has testified before Congress about what he sees as problems in the funeral industry. His mission is to expose what he calls “corruption in the industry,” and he contends he has uncovered 131 “deceptive tactics” used by most morticians and funeral directors, including extortionate price markups, high pressure sales tactics and deceptive marketing.
Both Rowe and Wasielewski believe change is necessary in funeral industry legislation to better protect consumers.
“I’m hoping if (there are) changes and we have more people in favor of the consumer, that some of these laws can be clarified so that the consumer has a little better shot,” Rowe says.
When Gertrude Johnson died in 2002, her family took comfort in the fact that she would be buried between her husband and daughter. But when workers at the South Lawn Cemetery in Tucson began digging at Gertrude’s gravesite, the Johnson’s say the workers discovered that an unidentified coffin was already buried there.
Both Gertrude’s husband, Arthur, and daughter, Shirley May, were then exhumed to verify they had buried in the correct graves.
That’s when the family discovered not only was their mother’s grave occupied, but her daughter, Shirley May, had been buried in the wrong place for more than a decade.
“The issue involved is human error,” Terry Hemeyer, managing director of SCI in Houston, said in an interview with the Tucson Daily Star in late 2004. “We have been doing everything we can to satisfy the family.”
The family sued SCI funeral services, but lost the case.
A similar mix-up at the Greenwood Memory Lawn Mortuary, also owned by SCI, left Epimenio Lopez’s family at odds with Arizona’s largest mortuary owner. Epimenio’s body was cremated on April 19, 2002. The following day his family had a funeral where they buried the ashes, purported to be Epimenio’s, in his late son’s grave.
Three days later, according to the lawsuit filed in October 2003, a crematorium representative called Epimenio’s son Richard, of Phoenix, and told him relatives were given the wrong ashes.
The unidentified ashes were exhumed, and the family later received a second set of remains. SCI eventually settled with the family.
In court cases involving mistakes made by mortuaries, many families say they find the laws are stacked against them, in large part the result of a lack of value placed on a deceased body. There exists no state law concerning the value of the body, and common law in Arizona and elsewhere also holds that a body has no monetary value.
Additionally, Arizona statues have eliminated the possibility for punitive damages in many cases.
Because of the legal restrictions, many lawyers won’t take these cases on a “contingency basis,” meaning families are required to pay for a lawyer and risk losing all legal fees if they lose the case.
“There’s not a lot of money in it. In these cases, the average (judgment) is zero,” says Mickey Walthall, who represented Piepenbrink against SCI in her 2003 case. “There’s a limitation as to the availability for families to pursue these kinds of cases.”
Like many industries in the U.S., the death-services business has been consolidating in recent years. Service Corporation International is one of the largest death-care providers and service companies in the country. Started in 1962, the Houston-based company operates more than 1,300 funeral-service locations and 366 cemeteries.
Since it operates its funeral homes as small autonomous locations, none of them bearing the SCI name, those seeking services at the homes are often initially unaware that they are dealing with a large corporation.
Like most successful corporations, SCI has the financial backing to realize a number of advantages, which Walthall says includes a strong line of defense against any legal claims.
“It’s very difficult to fight the big law firm,” Walthall says. “They’ve (SCI) been very successful in the past in limiting everything enough to protect themselves.”
Today the cremated remains of Piepenbrink’s mother sit in a wooden box on a shelf in her living room.
Both her mother’s and father’s niches at Sunland Memorial Park remain empty, with their names still engraved on the mausoleum wall.
“I didn’t want her out there by herself,” Piepenbrink says. “That wasn’t the point; she was supposed to be there with daddy.”
Piepenbrink’s lawsuit against SCI for breach of contract was initially successful. The jury found in favor of Piepenbrink and awarded her $15,000 in damages, plus attorneys’ fees; however, the case was overturned on appeal because the court found the terms of the contract weren’t specific enough to warrant a breach of contract claim.
“There’s nothing to her case, except what she says her mother told her 20 years ago,” says Lonnie Williams, the attorney representing SCI. “There was no documentation,” he says, adding that the appeals court and the funeral board have agreed with him.
“We don’t know what more we have to do to prove we were correct in our handling of the situation,” he says.
Piepenbrink contends her family was wronged by SCI but says her five-year legal battle has left her emotionally and financially exhausted and unsure whether she can afford another trial.
She says even greater than the legal issues is the painful regret that she’ll never be able to fulfill her mother’s final wishes.
“My mother wanted to be with my dad,” she says, “and I can’t do that for her.”
Arizona Funeral Board: www.funeralbd.state.az.us
Funeral Consumers Alliance: www.funerals.org
Interfaith Funeral Information Committee: www.funerals-ripoffs.org