Helping Families who Suffered from Morgue Negligence

Helping Families who Suffered from Morgue Negligence

Helping families deal with grief and mortuary negligence

Helping Families Who Have Suffered from Morgue Negligence

By Albro L. Lundy III

The Intersection of my Personal and Professional Experience

When you are an attorney, your clients don’t often call you with good news in their lives. Usually someone is calling because they are facing a difficulty, sometimes a very big one in their life. And sometimes, they call because they know you have faced or dealt with a similar difficulty.

It has been that way in my life. My father, USAF Major Albro L. Lundy Jr., was lost in the Vietnam Conflict in 1970, flying search and rescue over Laos. My family had been told that he was dead, actually Killed In Action, Body Not Recovered. For years that is what we believed until information started to surface in 1990 that he might have survived the incident. The story of the search for him is too long to tell here, and could actually take a book to tell. In many ways what I learned along the way has impacted my career as an attorney.

While searching for my father, I learned more than I ever wanted to about human remains and using DNA testing and dental records to prove identity. I also learned the high value placed on returning a body with dignity to a family and treating it with honor. The US government spends millions of dollars and many servicemen and women have given their lives to bring back a body to a grieving family.

It was this experience of mine, this experience with remains and identification, that led a good friend to refer one of their newly widowed friends to me. She had received a knock on the door late at night from the crematorium where she thought her husband had been cremated a few weeks before. They asked her to identify pictures of a body that they thought was her husband – since they realized they had cremated the wrong body. The ashes she thought were his were sitting on the mantle close by. Shocked and horrified, she needed to seek and discover the truth of what happened to her late husband, and receive justice for the dishonor to her husband’s body as well as the traumatic shock that the news and pictures of her partially decomposed husband had caused her. She could not identify him through the photos and needed to find alternate means to identify his remains through intra-oral photographs and dental record comparisons. Many times the bodies that came home from Vietnam had only the dental records to make identifications as well. After helping her confirm the identity and finally honor her late husband’s wishes, we were able to help her also receive a significant settlement for the emotional harm and trauma she suffered through this mistake.

This experience has given me the training, education and skill to assist other families in need when they have experienced negligence by a mortuary, crematorium or morgue. Our law firm has helped families presented with the wrong ashes, missing bodies, and identification of bodies. This is something we hope no family even needs to go through. But if you suspect something unusual has happened to the body of your loved one, know that there can be help and legal remedies. Our culture places a high value on the dignified treatment of a body after death and allowing it to rest in peace. Our law firm stands ready to help families with this sad and difficult part of life when needed.

http://www.dailybreeze.com/general-news/20170222/switched-at-death-trial-set-over-burial-of-wrong-woman-in-cemetery

Please Note: This document does not constitute legal advice. Please consult an attorney for legal advice on what to do in a particular situation.

Albro Lundy III attorney

Albro L. Lundy III

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Día de Los Muertos and Mortuary Negligence

Día de Los Muertos and Mortuary Negligence

Day of the Dead

Día de Los Muertos and Mortuary Negligence

By Albro L. Lundy III

Reflections on Resting in Peace

This week many countries and cultures celebrated All Souls’ Day also known as Día de Los Muertos in the Latin culture. In our office, Diane created an All Souls’ Day display on her desk with funeral programs and mass cards to honor her friends who have died this past year. She included marigolds (the traditional flower in Mexico for the Day of the Dead) and items with special meanings to make a lovely shrine. As I stopped to admire it, I realized that I had been friends with most of the people she was honoring. And it gave me pause to reflect on life and death. I had just exchanged condolences with another attorney I have never met but who is opposing me on a case. He indicated he had a death in the family and apologized for his delay in responding to me. I responded that it was times like these that made us realize what was most important in life. He immediately agreed and we, two adversaries, shared a moment beyond the case at hand.

Rest in peace. That most common phrase is truly meant for both the spirit that has passed into afterlife as well as those of us who remain in these mortal coils. Death is part of life although in this modern world we try to hide that fact. Gone are the days when the kitchen table or the living room couch served as the resting place for the body of a deceased loved one while the family gathered for their final goodbye or in the Irish tradition, a wake.   Nowadays the body is whisked away by “professionals” and we are left to trust that they are going to handle our loved ones with as much respect as we would. But I am always left wondering if that really is true. You see, I have handled many mortuary and crematory negligence cases and I have seen true horror stories (too graphic to describe here) of how they treat your loved one’s remains.

Unfortunately the bottom line for some of these organizations that provide cut-rate crematory services or sometimes even high-end funeral services is how much money they can make and they cut corners. Their economic welfare triumphs over your emotional well-being.

A powerful but not well-known legal tool I have used is a case decided by the California Supreme Court that makes an exception (the only real exception in contract cases) that emotional distress damages can be recovered for a mortuary’s breach of their contract and failure to respect and care for the remains of your loved one.

There is enough pain when losing loved ones without it being compounded by the people you entrust for their peaceful repose.   If you have any suspicions there has been mishandling of your loved one’s remains, you should definitely investigate. The sacred duty of caring for your loved ones after their death should remain inviolate.

 

Albro L. Lundy III attorney

Albro L. Lundy III

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Muhammad Ali & Me – Fighting for POWS

Muhammad Ali & Me – Fighting for POWS

Muhammad Ali travels to Vietnam with Albro Lundy

Albro L. Lundy III, Muhammad Ali, Carol Hrdlicka, wife of MIA/POW USAF David Hrdlicka in Hanoi, Vietnam in 1994

Muhammad Ali and Me – Fighting for POWs in Vietnam

By Albro L. Lundy III

Larger than Life

I always thought that Ali was larger than life until I was sitting across from him on a chance limousine ride we shared to the Philadelphia airport. This was long before Parkinson’s disease quieted the voice of this great orator. And my conversation with him was nothing less than ethereal. At that point, he became simply a man with a great heart. I was a young attorney and suddenly working on the biggest case of my life – trying to discover the truth about what happened to my father, USAF Major Albro L. Lundy Jr., when his Skyraider plane was shot down December 24, 1970.

Looking for my Father

In my mind, I had lost my father when I was 10 years old while he was flying a search and rescue mission. I later found out it was a secret mission to save the lives of Laotian allies and CIA operatives. One day, one Saturday the day before Easter in 1991, I received a letter from a judge in Kentucky who said my father, who had been declared dead but his body had never been recovered, might still be alive and held prisoner as a Prisoner of War in Vietnam. I wept when I read this letter for I had done nothing to save my father those 20 years.

So I set off on a quest to bring my father home should he still be alive and held in captivity in the communist recesses of Laos or Vietnam. I didn’t meet many people who knew where Laos was much less how it was involved in the Vietnam War. I traveled all over America and even to Southeast Asia in my quest.

Meeting The Champ

On one of these journeys, on that chance ride I shared with the Champ, I shared with him the story of my lost father. The Champ asked me, “Do you believe he is still alive?” I answered, “The only spiritual, the only logical, and the only moral thing I can do is to believe he is alive until I can prove otherwise.” Ali looked at me, his dark eyes searching my soul and connecting with my heart. He said to me, pounding his right fist into his left palm repeatedly, “You and me, let’s bring him home. Let’s go get him.”

I had no experience with Muhammad Ali until this point and my doubting Thomas mind was amazed yet wondered if what Ali had declared, that we would find my father together, was nothing more than an empty promise. Ali was a man of his word. In the months that followed an expedition to communist Vietnam was arranged by Let Freedom Ring Inc., a nonprofit organization.

Muhammad Ali Travels to Vietnam to Save Instead of Fight

Ali and I, with a cadre of POW family members and advocates, took off to North Vietnam, a country that by refusing to fight, Ali had risked his freedom and had been stripped of his World Champion Belt. He would not to go Vietnam to fight then but now was willing to go there to save. I can recall like it was yesterday, Ali sitting next to me as we were landing on a dilapidated airstrip in North Vietnam saying, “I can’t believe I am here. I spent so much of my life fighting not to come. But now I am here to bring your dad home.” I had no response. The magnitude of his statement and the reality that I was living took my words away. I just reached over and grabbed his hand and said “Thank you.”

Meeting with the North Vietnamese

I thought that if anyone could bring my dad home if he was still alive it was Muhammad Ali. When we met with the Premier of North Vietnam and later the Politbureau, which really controlled the decision making of North Vietnam, Ali was brilliant in negotiations. I will always remember him describing to the Premier how the world was his home and each county was a room within it; and we as family living in that home should work together for peace.

Then, he brought up my father and asked – if he was held by the Vietnamese (who ruled Laos), would they release him? And I can remember so clearly, the Premier saying, “Champ, if this was between our peoples, we would have resolution. But this is between our governments. And out of my and your hands.” Later when we met with the Politbureau, they so much as admitted that they still held prisoners of war, but under their interpretation of the Geneva Convention did not consider them prisoners of war but air pirates and merely criminals deserving of Vietnamese punishment.

A Gracious Ambassador

It was tragically devastating when we realized that our hopes of Ali bringing a man, a POW, home were not going to happen. At that point, we then needed to be as cordial as we could to the North Vietnamese yet not allow them to use us as propaganda. This was not an easy task. In 1994, Ali was one of the most recognizable men in the world.

Crowds followed him wherever we went. He would always entertain the children who flocked around him with magic tricks and give them simple hugs of love. Ali was not interested in tourist attractions and government appointments. He came to bring the POWs home, and if he couldn’t do that, he had little patience for the rest of what the Vietnamese had planned for him. But he ultimately made a decision for equanimity. If he couldn’t bring the POWs home, he could at least be the ambassador for the US and the World. And he was.

We all mourn the loss of Muhammad Ali. I was blessed to understand and experience how great a man he really was, the Champ, the dancer in the ring, the humanitarian — truly greater than most people will ever know. He was the Greatest.

Albro Lundy III attorney

Albro L. Lundy III

BB&L Wins California Supreme Court Victory

Albro Lundy argued before the California Supreme Court to change the use of 998 settlement offers and allow for the use of multiple offers to be taken into consideration for awarding expert fees in the Brownco v. Martinez case. The Court decided unanimously to allow recovery of fees from the date of the first offer. This changes 40 years of legal precedent. In the words of the court:

“Section 998 of the Code of Civil Procedure[1] was enacted to encourage the settlement of lawsuits prior to trial. The statute accomplishes this purpose by providing for augmentation and withholding of the costs recoverable at trial when a party fails to achieve a result better than it could have obtained by accepting an offer of compromise or settlement conforming to statutory requirements. Among other things, section 998 provides that a defendant may be ordered to pay a reasonable sum to cover the plaintiff’s postoffer costs of expert witness services when the judgment is not more favorable than the plaintiff’s settlement offer. (§ 998, subd. (d).)

The terms of section 998 do not prohibit a party from making more than one settlement offer, but they are silent as to the effect of a party’s multiple offers. In this action, we consider whether a later offer extinguishes a previous offer for purposes of section 998’s cost-shifting provisions. We conclude that where, as here, a plaintiff makes two successive statutory offers, and the defendant fails to obtain a judgment more favorable than either offer, allowing recovery of expert fees incurred from the date of the first offer is consistent with section 998’s language and best promotes the statutory purpose to encourage settlements.”

Baker, Burton & Lundy is proud to contribute to streamlining the legal process and reducing litigation by making the process more fair and efficient.

High Court Ruling Aids Settlements

High Court Ruling Aids Settlements

High Court Ruling Aids Settlements

Decision cements some of the benefits, drawbacks of multiple settlement offers.

By Emily Green, Daily Journal Staff Writer
June 11, 2013

The state Supreme Court on Monday endorsed the expansive application of a unique settlement offer that raises the stakes for civil defendants who go to trial, with the stated purpose of encouraging cases to resolve early.

Plaintiffs’ attorneys cheered the decision, which they said would encourage their use of so-called Section 998 offers. Such tenders differ from regular settlement offers in that they operate as a carrot and stick tool.

If a plaintiff makes a 998 offer which the defendant rejects, and then wins more money at trial than the offer amount, the defendant is on the hook for 10 percent annual interest on the judgment extending back to the date of the offer, as well as the plaintiffs expert fees.

Defendants also use 998 offers, but they tend to do so less frequently because the payoff is smaller. If they come out ahead on a 998 offer rejected by the plaintiff, they can have the cost of their expert fees covered.

The question before the state Supreme Court concerned an issue that had split the state courts of appeal: What happens when litigants make more than one settlement offer? Which one should apply – all of then, or just the last offer?

The answer: It depends.

Justice Marvin R. Baxter wrote the opinion for the unanimous court. Martinez v. Brownco Construction Co. Inc., 2013 DJDAR 7341

He said that if the party that makes more than one Section 998 offer wins a judgment less favorable than the first offer, but more favorable that the later offer, the controlling offer is the last one. That is to say, if a plaintiff makes an offer for $100,000, and then a second offer for $50,000 – both of which the defendant rejects – and then the plaintiff wins $75,000 at trial, the plaintiff can win 10 percent interest on the judgment extending back to the date of the second offer.

That calculation changes, however, if the plaintiff makes two offers and then beats both offers at trial. Then, the court said, the plaintiff is eligible to receive interest and the cost of expert fees extending to the date of the first offer.

“Not only do the chances of settlement increase with multiple offers, but to be consistent with section 998’s financial inventive and disincentives, parties should not be penalized for making more than one reasonable settlement offer, “ Baxter wrote. “Nor should parties be rewarded for rejecting multiple offers where each proves more favorable than the result obtained at trial.”

Baxter also wrote that if there are allegations of gamesmanship, the trial court has discretion to make that determination and deny interest on the judgment or expert fees.

The case stems from two settlement offers Gloria Martinez made to Brownco Construction Co. Inc. after her husband was severely injured on the job.

Three months after the accident, in 2007, she made a 998 offer for $250,000. Two and a half years later on the eve of trial, she made a second 998 offer for $100,000.

The company rejected the offer, and Martinez won $250,000 at trial. Subsequently, she sought to recover interest on the case and cost of expert fees. The trial court held that Martinez couldn’t recover expert fees incurred between the two offers because the second offer extinguished the first one. The appellate court reversed and said the last offer is not necessarily the operative offer for purposes of cost shifting.

Sacramento plaintiffs’ lawyer Roger Dreyer, who was not involved in the case, described the state Supreme Court’s decision as “hugely important” for trial lawyers. He said he was often reluctant to make second 998 offers for fear that it would eviscerate the first one – and the potential to win interest extending back to the first offer.

“This may be the most important statute in the civil code as it affects trials,” Dreyer said. “It’s a strategic tool. It’s also a tool that forces the defense to evaluate their options.”

Albro Lundy III, who represented Martinez, said the court’s decision puts pressure on the litigants to settle.

“It increases the risk of going forward to trial and it lowers the risk of making a subsequent offer, and therefore increases the possibility of settling.”

Brownco Construction’s attorney, George M. Lindahl, called the decision “well reasoned.”

“I was hoping they would go the other way on it. But the law was in need of clarification.”

Lindahl cautioned that the decision could leave trial courts burdened with resolving complaints of gamesmanship in 998 offers – an argument he said he would now make in this case.

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Martinez: Burned But Not Beaten

Martinez: Burned But Not Beaten

Electrical Burn Injury lawsuit

Gloria and Ray Martinez

Burned But Not Beaten

Ray Martinez saw the lights flicker and heard a noise. Turning to investigate, he saw a bright ball of light moving towards him and felt a horrifying heat as he was engulfed in flames. On fire and screaming for his life, Ray was burning to death.

After winning his fight against death, Ray and Gloria Martinez came to Baker, Burton & Lundy to fight those whose negligence had almost killed Ray.

The Referral

Baker, Burton & Lundy prides itself in having clients for life, with many decades-long client relationships to our credit. We are honored that clients consider us their lawyers for life, and a significant number of our cases comes from clients referring us to their friends and relatives.

Former clients the Grijalvas had suffered a tragedy and been represented by Albro Lundy and Brad Baker in the 80s and 90s. Here was another tragedy: their close friend Ray had burns on 75% of his body, and over 35% of those were deep second and third degree burns. He was teetering between life and death when Jim Grijalva arrived at the hospital and began urging Ray to hang on. Gemma Grijalva called our firm, asking if we could help Ray in any way.

Pre-Trial Investigation

Without hesitation, BB&L moved as quickly as possible to prosecute the matter for Ray, launching an investigation into how the electrical explosion occurred and who was responsible for the injuries not only Ray and but also Gloria suffered. (Ray’s wife Gloria was entitled to money damages as a result of Ray’s tremendous physical and psychological injuries through something the law calls “loss of consortium”.)

Within days of being notified of the event, BB&L had an attorney and an investigator at the site of the explosion, preserving the evidence and developing theories of liability. Our team found that the demolition company had failed to properly protect against metal shavings falling into an electrical panel. Those metal shavings eventually caused a short circuit and a fireball explosion.

BB&L’s quick response and thorough investigation proved crucial to establishing liability against the demolition company found legally responsible. It also protected the Martinezes against the negligence of Ray’s own employer.

Ray’s New Life

Ray vividly recalls the approach of the massive fireball, when he began to burn and the sensation of his flesh searing as he screamed for help and tried to extinguish the flames.

While BB&L meticulously conducted its investigation, Ray and Gloria attempted to adjust to their new life. Ray could not do most of the activities that he used to do for enjoyment.  Ray loved to coach, especially baseball, and had remained a coach in the Little League in his area even when his sons had grown and moved away. Ray found a great sense of purpose in teaching the boys sportsmanship and character in addition to the love of the game. But after the accident, because of his body’s inability to cope with heat and sun, Ray had to leave this important pastime in the past.

“We were an incredibly active family,” Ray wistfully recalled, “When we were not working, we were playing. We were gone almost every weekend.”  Ray’s motto was work hard, play hard.  Now, he could neither work nor play. Ray and Gloria fought through the changes with admirable strength. Gloria stayed at her husband’s side, encouraging him to embrace his therapy and adapting to the role of a caretaker.

Results: $3.16 Million Awarded

Baker, Burton & Lundy prosecuted this case tenaciously, trying the case for over 30 days and taking the case up to the California Supreme Court twice. The jury spent over a week determining a verdict, awarding $3.16 million to the Martinez family for their damages suffered as a result of the explosion.

The BB&L litigation team is proud that it spared no time or expense in righting this wrong. The firm knew it wouldn’t receive a cent unless it won and following the jury verdict of $3.16 million and an appeal, over $600,000 had been spent in expert fees and investigation costs alone (not attorney’s fees). And rather than giving up following a loss in a mock trial, the team had used the experience to win the case in California Superior Court.

Baker, Burton & Lundy’s litigation team does whatever it takes to get the best possible results for clients. Though no amount of money can replace their loss, the Martinez family now has the ability to pay Ray’s many medical expenses and they can begin to move on with their lives.

Verdicts and Settlements

Click here to view a more complete list of our verdicts and settlements.

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To learn more about how Baker, Burton & Lundy’s experienced attorneys can represent or advise you, please call (310) 376-9893 or fill out the form below.