Kennedy-McInnis v. Biomedical Tissue Servs., Ltd.

• Decision Date: 11 April 2016
• Docket Number: 06–CV–6410,13–CV–6545
• Court: U.S. District Court — Western District of New York
• Parties: Cyndia Kennedy–McInnis, Lejune Kennedy, Carolyn Kennedy–Green, Ernest Kennedy, Brant Kennedy, Donna Mattern, Robert Nenno, Laurie Stathopoulos, Jill Wirth, Virginia Jacobson, Rolann Bailey, Shauna Clay and John Yeager on behalf of themselves and all persons similarly situated, Plaintiffs, v. Biomedical Tissue Services, Ltd., Michael Mastromarino, Serenity Hill's Funeral Home Inc., Thomas E. Burger Funeral Home Inc., Profetta Funeral Home, Regeneration Technologies Inc., LifeCell Corporation, Tutogen Medical Inc., Blood & Tissue Center of Central TX, and Lost Mountain Tissue Bank, Defendants.

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Cyndia Kennedy–McInnis, Lejune Kennedy, Carolyn Kennedy–Green, Ernest Kennedy, Brant Kennedy, Donna Mattern, Robert Nenno, Laurie Stathopoulos, Jill Wirth, Virginia Jacobson, Rolann Bailey, Shauna Clay and John Yeager on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
Biomedical Tissue Services, Ltd., Michael Mastromarino, Serenity Hill's Funeral Home Inc., Thomas E. Burger Funeral Home Inc., Profetta Funeral Home, Regeneration Technologies Inc., LifeCell Corporation, Tutogen Medical Inc., Blood & Tissue Center of Central TX, and Lost Mountain Tissue Bank, Defendants.

13–CV–6545
06–CV–6410

United States District Court, W.D. New York.

Signed April 11, 2016

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Van Henri White, Law Office of Van White, Rochester, NY, for Plaintiffs.

Robert J. McGuirl, Law Offices of Robert J. McGuirl, Park Ridge, NJ, Edmond C. Baird, Kevin J. English, Phillips Lytle LLP, Buffalo, NY, Joseph A. D'Avanzo, D'Avanzo & Morreale, P.C., White Plains, NY, Joseph T. Perkins, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Albany, NY, Denise Brinker Bense, Cozen O'Connor, West Conshohocken, PA, for Defendants.

DECISION & ORDER

HON. DAVID G. LARIMER, UNITED STATES DISTRICT JUDGE

This case arises out of the alleged unlawful “harvesting” of human body parts and tissues from corpses that were entrusted to certain funeral homes in the Rochester, New York area. Plaintiffs, who are family members of the decedents in question, allege that the defendants were involved in handling the decedents' bodies or body parts, and that they acted without the prior consent or knowledge of plaintiffs or their decedents. Subject-matter jurisdiction in this Court is premised on diversity of citizenship under 28 U.S.C. § 1332.

Two motions are now pending before the Court. Defendant Regeneration Technologies Inc. (“RTI”) has moved for summary judgment (Dkt.# 72). Plaintiffs have cross-moved for summary judgment (Dkt.# 77). For the reasons that follow, defendant's motion is granted, plaintiffs' motion is denied, and the complaint is dismissed.

PROCEDURAL HISTORY

Five of the plaintiffs filed a lawsuit on March 7, 2006, against three defendants: Biomedical Tissue Services, Ltd. (“BTS”), BTS's owner Michael Mastromarino (“Mastromarino”), and “Serenity Hill's [sic] Funeral Home, Inc.” (“Serenity

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Hills.”). Those five plaintiffs, all of whom were children of decedent Lottie Ann Warren–Kennedy, alleged in the original complaint that after their mother died, they committed her remains to Serenity Hills for cremation. They further alleged that without their consent, Serenity Hills allowed BTS, which is a human-tissue recovery firm, to harvest some of the decedent's body tissues, prior to cremation. 06–CV–6140 Dkt. # 1. Apparently those body parts had some monetary value, primarily for later transplantation into living persons.

The amended complaint, filed on March 29, 2006, added seven more plaintiffs, all of whom are survivors of five decedents. 06–CV–6140 Dkt. # 2. Ten defendants were named in the amended complaint, including RTI. The other defendants comprise two other funeral homes and five “tissue banks,” which allegedly received human body parts from BTS. RTI is one of those tissue banks.

The allegations of the amended complaint roughly parallel those of the original complaint. According to the amended complaint, the remains of plaintiffs' decedents were entrusted to various funeral homes in the Rochester area. The funeral homes allegedly allowed BTS to harvest body parts from the decedents' bodies, without the prior knowledge or consent of the plaintiffs or the decedents.

Following the “harvesting,” BTS allegedly supplied the body parts to several tissue banks, including RTI. The amended complaint alleges that the tissue banks failed to properly screen the body parts for proper consent and authorizations, as required by law. Dkt. # 2 ¶ 34.

On January 16, 2007, the case was transferred to the Judicial Panel on Multidistrict Litigation (“MDL panel”), for inclusion in coordinated proceedings with two related cases from other districts, involving similar allegations. 06–CV–6140 Dkt. # 52.

On November 13, 2007, District Judge William Martini, who was overseeing those coordinated proceedings, granted summary judgment in favor of two of the tissue banks, Tutogen Medical, Inc. and Blood and Tissue Center of Central Texas. Judge Martini based his decision on lack of standing, because plaintiffs had not established that those defendants had received any body parts from plaintiffs' decedents. 13–CV–6545 Dkt. # 30.

The claims against defendant LifeCell, another tissue bank, were dismissed by stipulation of the parties on July 28, 2010. 13–CV–6545 Dkt. # 49. Another defendant, Lost Mountain Tissue Bank, has never appeared in this action, and according to its former counsel, Lost Mountain Tissue Bank has entered into Chapter 7 bankruptcy proceedings and is dissolved. Dkt. # 67.

Defendants BTS, Mastromarino, and Serenity Hills have likewise never appeared in this action. Mastromarino was eventually indicted and pleaded guilty to fraud and other criminal charges in New York and Pennsylvania. He was sentenced to lengthy terms in prison, and he was still serving his sentences at the time of his death in July 2013.

On September 30, 2013, the case was remanded to this Court. Dkt. # 52. That remand was effected pursuant to an order to show cause issued by Judge Martini, in which he stated that of the 421 related cases that had been before him, all but four had been settled. 13–CV–6545 Dkt. # 50. The case at bar is one of those cases that remained unresolved as of the date of that order. The only remaining defendant in this case is RTI.

In a decision issued prior to that remand order, Judge Martini did address plaintiffs'

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claims against RTI. On November 14, 2007, Judge Martini denied a motion for summary judgment by RTI (and by LifeCell and Lost Mountain), based on the New York Anatomical Gift Act, N.Y. Pub. Health L. §§ 4300 –4309. That act provides, with respect to a claim against a recipient of human tissue, that “[a] person who acts in good faith in accord with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.” Pub. Health L. § 4306(3).

In his decision, Judge Martini stated that “summary judgment in favor of [RTI] at this time would be premature without further discovery.” 13–CV–6545 Dkt. # 29 at 7. He added that the consent forms submitted by RTI “appear[ed] to be facially valid,” but that summary judgment would be premature because there had not yet been any discovery on RTI's knowledge that the forms were fabricated, or regarding evidence suggesting that the forms may have been invalid. Id. at 12. Following that decision, and pursuant to Judge Martini's request, the MDL Panel remanded the case back to this Court. See Dkt. # 51, # 52.

Following that remand, counsel for both sides filed a “Joint Statement” (Dkt. # 61) stating that “[t]here has been full and timely compliance with the disclosure requirements of Federal Rules of Civil Procedure 26,” and that both sides wished the Court to set a trial date. They subsequently filed their motions for summary judgment. To the extent that Judge Martini's decision was based on the need for discovery, then, that is no longer an issue, based on the parties' joint statement. There has been more than enough time—several years—to conduct discovery since Judge Martini's decision.

DISCUSSION

I. “Mishandling and Desecration of a Body”

Plaintiffs have asserted two claims against RTI, which are denominated as the second and sixth claims of the complaint overall. In the first of those two claims, plaintiffs allege that defendants “intentionally harvested decedents' body parts without the prior consent of decedent or the consent of decedent's next of kin.” Dkt. # 2 ¶ 99. The precise nature of this claim is not well articulated.

At oral argument, plaintiffs' counsel suggested that this claim is based on federal regulations governing the recovery and use of human tissue intended for transplantation or other medical purposes. See 21 C.F.R. Parts 1270, 1271. Those regulations set forth extensive requirements for record-keeping and other procedures that must be followed with respect to body-parts donations.

But neither the regulations nor the Public Health Service Act, 42 U.S.C. § 201 et seq., pursuant to which those regulations were promulgated, purport to give rise to a private right of action, much less a right of action to recover damages for “mishandling and desecration of a body.” This cause of action appears to be nothing but a duplicative restatement of the sixth cause of action, which sounds in negligence.

II. Negligence

A. General Principles

In their negligence claim, plaintiffs allege that RTI “had a duty to ensure the authenticity of the consent forms that were provided [to RTI] with the harvested body parts received from [BTS].” Dkt. # 2 ¶ 115. Plaintiffs allege that...