FILED: RICHMOND COUNTY CLERK 05/11/2012 NYSCEF DOC. NO. 372-9 INDEX NO. 750000/2008 RECEIVED NYSCEF: 05/11/2012 EXHIBIT 4 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFRICHMOND DCM PART 3 Index No. 750000/08 IN RE: HUMAI-1 TISSUE LIIIGATION DECISION HON . JOSEPH J . MALTESE This Decision is applicable to the cases listed in Appendix A In these coordinated mass tort actions of first impression, this court is called upon to evaluate the boundaries of civil liability in the procmement of human tissue for processing from decedents, without the consent of the decedent before their death or the consent of next of kin after death This court ordered that 22 of the pending 46 actions coordinated for discovery are certified as "trial ready" The defendants, RTI Donor Services, Inc, RTI Biologics, Inc. fi'k/a Regeneration Technologies, Inc . and rutogen Medical (United States), Inc., have made a motion to dismiss all of the claims by all of the plaintiffs. Those defendants have also made four more specific motions to dismiss against selected plaintiffs. Facts Defendant, Michael Mastromarino, a former dentist, entered into the business of harvesting human tissue, organs and bone for distribution to the defendant tissue processors that redistributed them for use in the healthcare industry. On March 8, 2002, the defendant, Rri Donor Services, then known as US Allograft Network, Inc., contracted with Mastromarino's organ and tissue harvesting company, Biomedical Tissue Services, Inc ("B IS") to provide it with human tissue for processing and distribution. Under section 1 of the agreement BIS was responsible to "[s ]upply Donor Recoveries (Femurs and Tibias) exclusively to USAN (US Allograft Network) which meet USAN's Acceptance Criteria .. and other requirements for quality control and assurance, as provided by USAN" Pursuant to their agreement, '"Musculoskeletal Donor Recovery' shall mean hemi-pelvis, femur, fibula or tibia" Michael Mastromarino, "MD" executed the agr?eement on behalfofBIS and Thomas E Brewer executed the agreement on behalf of US Allograft Network, Inc. At the request ofRII's management, their attorney, Jerome Hoffi:nan's film conducted an investigation into Michael Mastromarino's background Hoffinan's investigator's wrote a report that discovered the foiiO\ving information: New Jersey Criminal History an arTest on July 7, 2000 for possession of controlled dangerous substance and for use or being under the influence of any controlled substance charged with possession or distribution of a hypodermic syringe or needle these charges were resolved by pre??trial intervention and fined $1250.00 New York Criminal History Misdemeanor for unlawful use of a police uniform or emblem. Dental Licensure New York state suspended Mastromarino's license on two separate occasions, and that Mastromarino practiced dentistry while his license was suspended In New Jersey Mastromarino voluntarily surrendered his license An internal memo demonstrates that R II began to question its business relationship with Mastromarino Outside counsel, Jerome Hoffinan, Esq, in an e-mail warned RTI management in December 2002 that, "I he good doctor has been on Santa's naughty list for quite some time I would strongly encourage you not to do business with someone that has this kind of resume." 2 In a second separate e-mail dated January 7, 2003, Attomey Hoffman once again counseled RTI management that: Given that the issue is whether it makes good business sense to continue a relationship with someone with a background like Dr Mastromarino, and not whether the contract has been breached, I suggest that we give him the required 60 days notice under the current contract and not sign a new contract with either BioI issue or Bio Medical But RTI did not give Mastromarino sixty days notice of termination as counseled by Attorney Hoffman and continued doing business with him and BTS. Rather than cancel the March 8, 2002 contract, on February 11, 2003 Mary Basco, Medical Director for BTS and Carrie Hartill, R TI Vice President for Quality Assurance and Regulatory Affairs amended the March 8, 2002 agreement to state: Recovery Agency will, for the term of this Agreement, maintain ctnrent licensure/registration with applicable State and Federal Agencies, and is either Accredited by the American Association of Tissue Banks (AATB) or meets AATB Standards Recovery Agency will provide evidence of such upon request RTI reserves the right to audit/inspect the agency no less than once a year On February 1, 2003 BIS and RTI executed a new Tissue Recovery Agreement The agreement states "For the purposes ofthis Agreement 'Musculoskeletal Donor Recovery' shall mean hemi-pelvis, femm, fibula, or tibia..., Similar to the agreement between BTS and US Allograft Network, Inc, BTS agreed to, "[s]upply Donor Recoveries (Femurs and Tibias) exclusively to RTI which meet RTI's Acceptance Criteria and other requirement for quality control and assurance, as provided, from time to time, by RIL" Once again, Mary Basco executed the agreement on beha!fofBTS; and Roger Rose, Vice President executed the agreement on bcha!fofRII 3 Shortly thereafter the parties executed an amendment to the February 1, 2003 Tissue Recovery Agreement which expanded the scope ofthe tissue agreement On April 10, 2003 the parties expanded their agreement as follows: Recovery Agency [BTS] and RTI wish to amend the purpose of the Agreement by adding Cardiovascular Donor Recovery, meaning heart of valves, saphenous veins, femoral artery & veins en bloc, descending aorta and aortoliliac. On June 1, 2004 the parties once again amended the February 1, 2003 agreement. This amendment concerned Article I, section I which dealt with BIS's agreement to provide RII with femurs and tibias exclusively The amendment reads: Article I (1) shall be amended to read: I. Femur, Tibia Humerus, Radius, Ulna and Cardiovascular Recoveries exclusively to RTI which meet RTI' s Acceptance Criteria and other requirements for quality control and assurance, as provided from time to time by RTI. Shortly after one year from the execution ofthis tissue agreement the parties executed a new agreement effective on June 29, 2005. This agr?eement states: BioMedical and RIT entered into a Tissue Recovery Agreement dated February 1, 2003, and Amendments dated April10, 2003 and June 1, 2004 which the parties wish to terminate and replace with this Agreement, effective June 29, 2005 This agr?eement was executed by Michael Mastromarino as President/CEO of B IS and Roger W. Rose, Executive Vice President ofRTL Unlike the previous agreements between the parties this agreement defined the relationship between the parties as follows: Nothing herein shall be deemed to create an agency, joint venture or partnership relation between the parties hereto 4 Furthermore, rather than the exclusive agreement to provide tissue that previously existed between the pmties, pmagraph 2 I of Exhibit A to the agreement provides in pertinent part that B IS shall provide: Designation ofRTI to receive the Right ofFirst Refusal for vascular, cmdiovascular and musculoskeletal (except iliac crest) human tissue donations . After a criminal investigation that spanned New York, New Jersey and Pennsylvania, it was discovered that Mastrommino, and BTS employees were unlawfully harvesting the remains of individuals entrusted to certain funeral homes such as co-defendant Chris Aldorasi Funeral Services and others In addition, records indicate that Mastromarino and BTS provided RII Donor Services with well over I ,000 donor consent files during their three yem business relationship I he elaborate scheme involved forging consent forms purportedly signed by the decedent's next of kin, the operation involved cutting open the corpses and hmvesting tissue, bones and organs and replacing those body pmts with materials purchased at local hardwme stores, such as PVC pipes and rubber gloves The plaintiffS in these civil actions me the next of kin ofthe decedents, whose bodies were cut open to remove tissue, organs, and bones . Mastrommino, operating under the name of B IS, he also operated under the name of MCM Tissue Recovery Services . Co-defendants Lee Curceta, who also operated under the business name LMC I issue Recovery Services, Inc And Joseph Nicelli were the "cutters" who removed the tissue, mgans, and bone from the decedents The co-defendants, RII Donor Services, a recovery agency; along with RTI Biologics and Iutogen, which me tissue processors, accepted the recovered tissue, organs and bones from the BIS "cutters" to be resold in the medical community I he actions of"the cutters" co-defendants Michael Mastrommino, Joseph Nicelli, and Lee Cmceta resulted in criminal convictions, as well as those proprietors of funeral homes that aided and abetted in this illegal scheme. At present Mastrommino is in Wende Correctional Facility, a New Y ark State maximum security prison serving an 18-54 yem sentence imposed by 5 Justice Albert I omei of the New York Supreme Court, Kings County that is running concunently with a sentence handed down by the Philadelphia Court of Common Pleas Mastromarino, Nicelli and Cmceta have all defaulted in these civil cases The funeral homes have answered the complaints and are addressed in separate decisions I he Causes of Actions The plaintiffs, the next of kin ofthe decedents alleged the following causes of action by way of master complaints, which listed the following counts: Count I. Negligence against the "cutters": BioMedical Tissue Services, LTD , Michael Mastromarino, Aleyda Nicelli, Guardian for Joseph Nicelli, Joseph Nicelli, Lee Curceta, LMC Tissue Recovery Services, Christopher Aldorasi, MCM Tissue Recovery Services, Inc., Cluis Aldorasi Funeral Service and Kevin Vickers; Count U. Negligence against defendant funeral homes; Comt III. Negligence against, the tissue processors RTI Donor Services, Inc . , KU Biologics, Inc. flk/a Regeneration Technologies, Inc , and New Ymk Tissue Services, Inc ; Count IV. Negligent Infliction of Emotional Distress against all defendants; Count V. Intentional and Reckless Infliction of Emotional Distress against the "cutters": BioMedical I issue Services, Ltd, Michael Mastromarino, Aleyda Nicelli, Guardian for Joseph Nicelli, Joseph Nicelli, Lee Cruceta, LMC Tissue Recovery Services, Christopher Aldorasi, MCM Tissue Recovery Services, Inc., Chris Aldorasi Funeral Service, and Kevin Vickers; Count VI . Intentional and Reckless Infliction of Emotional Dist1 ess against defendant funeral homes; Count VII. Intentional and Reckless Infliction of Emotional Distress against the tissue processors: RII Donm Services, Inc, RII Biologics, Inc. flk/a Regeneration I echnologies, Inc , and New 6 York Tissue Services, Inc ; Count VIII. Negligent Misrepresentation against defendant funeral homes; Count IX. Violation ofthe New York Consumer Protection Statute, N.Y. Gen. Bus. Law? 349 against defendant funeral homes; Count X .. Loss of Consortium of all married plaintiffs against all defendants; and Count XI. Loss of Sepulcher against all defendants .. Summary .Judgment for Failure to Present a Prima Facie Case Motion 13 (applicable to all plaintiffs) In the motion designated by the clerk's office as Motion 13, the defendants tissue processors, RTI Donor Services, RTI Biologics fi'k/a Regeneration I echnologies, Inc and Iutogen Medical (U.S.), Inc move by their attorneys for summmy judgment dismissing the following causes of action: Loss of Sepulcher (Count XI); Negligence (Count Ill),; Negligent Infliction of Emotional Distress (Count IV), and Intentional Infliction of Emotional Distress (Count VII) That motion is granted in pmt. Loss of Sepulcher The moving tissue processor defendants, RTI Donor Services, Inc, RTI Biologics, Inc. fi'k/a Regeneration I echnologies, Inc . and Tutogen Medical (United States), Inc., mgue that the plaintiffs failed to make out a prima facie case for loss of sepulcher because: 1) the moving defendants did not actively participate in the unlawful interference with the body; 2) the plaintiffs failed to show a relationship between the moving defendants and the desecration of their family member's body; and 3) that any interference with the plaintiff's right of sepulcher was complete 7 at the time the moving defendants came into contact with their loved ones tissue. As recently as 2006 the Court of Appeals in Colavito v New York Organ Donor Network, Inc recognized that while New York has permitted causes of action for improper autopsy or mutilation of a corpse, the comts of this state have diverged from the common law doctrine that there is no common law property right in a dead body.' While this jUiisdiction flatly rejects the existence of any property rights in cases of improper autopsy or mutilation of a corpse, the law has recognized the common law right of sepulcher The right of sepulcher permits the next of kin the right to recover for solely emotional damages which may arise as a result of interference with their loved one's body after death The cause of action is based in part on the solace and comfort felt by the next ofkin in the act ofritual burial 2 The Appellate Division, First Department distilled the history ofthe right of sepulcher in New York state in its opinion in Melfi v Mt. Sinai Hospital. Justice Catterson writing for the First Department found: that for a right ofsepulcher claim to accme (1) there must be interference with the next of kin's immediate possession of decedent's body and (2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy . . or by disposing of the remains inadvertently . or . by failure to notify the next of kin ofthe death. The next of kin's mental anguish in these situations is then generally presumed but, in any event, cannot be felt until the next of kin is aware of the interference with his/her right ofpossession of the loved one's body for burial 3 The Appellate Division, First Department stated that, " ... the right of sepulcher is less a quasi-property right and more the legal right of the surviving next of kin to find 'solace and I 8 NY3d 43, 52, 53 [2006] 2 Melfi v. Mount Sinai Hosp, 64 AD 3d 26, 32 [I" Dept 2009] Id at 39 8 3 comfort' in the ritual of burial. " 4 This cause of action exists solely to allow the decedent's next of kin to recover for any emotional injury that may arise as a result of an interference in the proper burial of the decedent I he second element in a claim for the interference with the right of sepulcher as set fmth by the Appellate Division, First Department in Melfi requires that the next of kin experience some sort of mental anguish as a result ofthe interference . This element is generally presumed. l.n any event, the defendants have not challenged the existence of mental anguish on the part of any ofthe plaintiffs The moving defendants argue that the next of kin plaintiffs have not demonstrated that the tissue processor defendants owed them a duty and therefore no cause of action can exist against them l.n its consideration ofthe common law right of sepulcher the Appellate Division, Second Department stated that "[i]n order to recover for such emotional injuries, it must be shown that the injuries were 'the nahual and proximate consequence of some wrongful act or neglect on the part ofthe one sought to be charged "'5 Therefore, the defendants must have been in a position to owe the next of kin a duty not to interfere with the burial of their family member's body. Here, RTI specifically amended the March 8, 2002 agreement to reserve an unlimited right to "audit/inspect" Mashomarino/B TS' s operation "no less than once a year " l.n light of advice received fiom RTI's attorney Jerome Hoffman, Esq, prior to the execution ofthe February 2003 amendment the moving defendants were aware of Mashomarino's questionable character While counsel for the defense has vigorously argued that the moving defendants needed actual knowledge ofMashomarino's propensity to desecrate bodies without proper consent before liability can attach, this court does not agree. Indeed, the research conducted by Attorney Hoffman and his private investigators into Mastromarino' s 4 !d. at 32. 1'vfackv. Brown, 82 AD.3d 133, 138 [2d Dept 2011] (internal citations omitted) 5 9 backgrotmd revealed that he was a person of questionable character as is evidenced in Attorney Hoffinan's e-mails to RII executives. ln particular?, Mastromarino's misdemeanor for use of a police uniform or emblem speaks to his prior acts of being untruthful with authority While this act does not demonstrate Mastromarino's propensity for the desecration ofthe dead, it does speak to his ability to present improper paperwork and authorizations to the defendants I he case law eonceming interference with the right of sepulcher frequently concerns hospital and funeral home defendants. ln those cases, it is clear that the alleged defi:mdants owed a duty to the next of kin of the decedents to treat their loved one's body with respect This case concerns a relatively new player in the post mortem handling of corpses-namely the tissue processors who receive the hmnan tissue, organs and bone from the "cutters" who supply it It has been correctly pointed out by moving defendants' counsel that the nearly 100 year old case of Hasselbach v Mt. Sinai Hosp. is relevant to the case at bar 6 ln Hasselbach the next of kin brought a law suit against a hospital for an unauthorized autopsy The plaintiff conceded that the autopsy was performed not by the employees, servants or agents, but was " ... performed [by those] pursuing an independent calling and were not then acting under the direction or instruction oft11e defendant." The Appellate Division, First Department rejected the imposition of a duty on the defendmts ". to protect [the plaintiff's] husbmd's body against a post mortem autopsy by any person whomsoever, md to deliver said body to her in the same condition that it was immediately after death . " 7 But these are not the facts before this court Here, the moving tissue processor defi:mdants specifically reserved the right to "audit/inspect" Mastromarino's operation beginning in 2003 It must also be noted that the June 2005 agreement between the parties, did not specifically revoke tl1e March 2002 agreement, which had a 5 year term md was the subject of the February 2003 amendment 1herefore, the moving defendants' duty to audit and inspect Mastromarino md B IS continued until2007. 6 173 AD 89 [!"Dept 1916]. 1dat91 7 10 In addition, a contractual relationship between the parties makes it clear that B IS was the exclusive provider of certain tissue to the moving defendant R I I Donor Services Normally, a contract alone is not enough to impute !ott liability, especially in favor of third party beneficiaries of a contract. The Court of Appeals in Espinal v. Melville Snow Contrs. held that there ar?e: . three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care- and thus be potentially liable in tort-to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a force or instmment of harm' . .; (2) where the plaintiff detrimentally relies on the continued perfotmance of the contracting party's duties . and (3) where the contracting party has entimly displaced the other party's duty to maintain the premises safely 8 But here, the moving defendants contractually created a duty to monitor the operations of Mastromarino and his company BTS While such inspections would normally be within the province of the State and Federal authorities, the moving defendants placed a burden upon themselves that is beyond that which is normally required in the tissue processing industry Indeed, the moving defendants placed themselves into the shoes ofthe regulatory authorities New York Anatomical Gift Act, Public Health Law ? 4306 The Anatomical Gift Act good faith exception fiom liability codified in Public Health Law (PHL) ? 4306(3) states that: A person who acts in good faith in accord with the terms ofthis article or with the anatomical gift laws of another state is not liable fm damages in any civil action or subject to prosecution in any criminal proceeding for his act 9 8 98 NY2d 136 [2002] Public Health Law ? 4306(3). 11 9 As recently as February 23, 2012, the Appellate Division, First Department in Nunez v New York Organ Donor Network, Inc held that whether a defendant is entitled to the benefit of the good faith exception is one offiJCt. In reversing the trial court the Appellate Division, First Department found that, "[t]he evidence here presents no issue of fact whether the defendant failed to act in good faith in connection with its efforts to obtain the necessary statutory consent for the subject organ donation." 10 Here, the February 11, 2003 amendment to the March 8, 2002 agreement provides that "R II reserves the right to audit/inspect the agency no less than once a year. " By creating a contractual duty to "audit/inspect" Mastromarino and BTS, the moving defendants cannot now assert that they are entitled to the benefit ofthe good faith provision of the Uniform Anatomical Gift Act 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 Therefore, the plaintiffs' master complaint has set forth a prima facie case for interference with the right of sepulcher The moving defendants' motion for summary judgment dismissing the plaintiffs' cause of action for loss of sepulcher is denied But some other actions must he dismissed. While this court held that the contractual amendment between the parties dated February 11, 2003 created a specific duty for the moving defendants to oversee the actions of Mastromarino and BIS, the prior Mar?ch 8, 2002 agreement did not require such monitoring on the part ofthe moving defendants Therefore, in those cases where the harvesting oftissue occurred before February 11, 2003, the moving defendants had no duty to the plaintiffs Here, the parties have agreed that the harvest dates in the Boone, Torchio and Vasilyeva actions which are: November 4, 2002, December 4, 2002 and February 5, 2003 respectively. Since all occurred prior to the February 11, 2003 contractual amendment, those actions must be dismissed as failing to state a prima facie case against the moving defendants 10 Nunez v. New York Organ Donor Nenvorlc, Inc, 92 AD3d 594 [I" Dept, 2012]. 12 Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress While this comt finds that the defendants, RII Donor Services, Inc, RII Biologics, Inc. (f!k/a Regeneration I echnologies, Inc) and Tutogen Medical (United States), Inc, owed the plaintiffs in these coordinated actions a duty not to interfere with the remains of their deceased family members, they move in the alternative to dismiss those claims that are duplicative of the plaintiffs' interference with the right of sepulcher claims I he Appellate Division, First Department citing the Court of Appeals decision in Murphy v. American Home Prods Corp 11 held that" a cause of action for infliction of emotional distress is not allowed if essentially duplicative of tort or contract causes of action " 12 Here, the outrageous conduct complained of by the plaintiffs is an essential element of a claim fm interference with the right of sepulcher Furthermore, each tort seeks duplicative recovery fm psychological injuries . 13 This court finds that the plaintiffs' claims for the Negligent Infliction of Emotional Distress (Count N), and Intentional Infliction of Emotional Distress (Count VII) are duplicative to the loss of sepulcher claims and thereby dismisses those claims Negligence Causes of Action are Dismissed The very acts ofnegligence set forth in the master complaint state the basis for the plaintiffs' claim of interference with the right of sepulcher . Therefore, the plaintiffs' claim of negligence must also fail. Fmthermore, given the fact that the law of this state does not recognize a property right in dead bodies, any desecration ofthe bodies of their loved ones, along with any enors in the handling ofthe purported anatomical gifts by the moving defendants are by their nature claims for interference with the right of sepulcher Consequently, these separate causes of action must be dismissed as to all plaintiffs 11 See, Murphy v. American Home Prods Corp, 58 NY2d 293 [1983] Wolkstein v Morgenstern, 275 AD2d 635,6.37 [1" Dept 2000]. See generally, Melfi v Mount Sinai Hasp., 64 AD3d 26 [1" Dept 2009] 13 12 13 Motions to Dismiss based upon the Statute of Limitations, Motions 7 and 14 The moving tissue processor defendants make two motions for summary judgment on the grounds that the actions brought by the plaintiffs listed in Appendix B are time barred as against the relevant statute oflimitations. Motion designated 14 by the Clerk's office and marked as "number 2" during oral argument seeks to dismiss the aforementioned plaintiffs actions using the date of harvesting as the point of accrual. Motion designated 7 by the Clerk's office and marked as "number 5" during oral argument seeks to dismiss the plaintiffs actions using the date that the plaintiffs received notice as the accrual date. Accrual The moving defendants argue that the date of accrual should be measrued fiom the date of the tissue recovery. The plaintiffs oppose the designation of accrual at the time ofthe tissue recovery, and instead argue that the accrual occurs at the time the decedent's next of kin was made aware of the potentially unlawful harvesting of tissue fiom their loved one This court agrees with the position expounded by the plaintiffs. The moving def(mdants ar?gue that because this coordinated litigation is pending in Richmond County, the Thirteenth Judicial District, this corut is bound by the precedent set by the Appellate Division, Second Department and the Court of Appeals Therefore, the defendants argue that the Appellate Division, Second Department ruled on the issue of accrual in its decision in Jensen v City of New York 14 In Jenson the plaintiff appealed the a decision of the Supreme Court that granted the defendant City of New York's cross-motion to dismiss on the ground that his claim was time barred prusuant to General Municipal Law ? 50-i(l )(c) In that case the plaintifflast saw his son alive on about July 24, 1997. On August 4, 1997 a body was found in the waters surrounding Staten Island and was examined at the Richmond County Morgue ;_ "288 AD2d 346, (2d Dept 2001] 14 ("Morgue") The Morgue obtained the dental records of the plaintiffs son in order to compare them with the body. In or about October or November 1997 the Morgue personnel advised the plaintiffthat the body was not his son In January 1999 the Medical Examiner's Office in Manhattan contacted the plaintiff and advised him that the Morgue misread the dental records and the body was indeed his son's The plaintiff brought an action asserting negligence and gross negligence The Appellate Division, Second Department upheld the Supreme Court's finding that the statute of limitations, ". began to run upon the date the appellant was erroneously informed that the body was found was not that of the decedent .. I he alleged misidentification was a singular act of negligence from which all potential damages arose, and did not constitute a continuous wrong, nor should the Statute of Limitations commence upon the discovery of the mistake .. " While the Jensen case seemingly precludes the plaintiffs' actions here, it should be noted that this decision is limited to claims of negligence and gross negligence against the City of New York This decision by the Appellate Division, Second Department is silent with respect to claims of intentional infliction of emotional distress, negligent inflection of emotional distress and loss of sepulcher The Court of Appeals in Kronos, Inc v.. AVX Corp. held that a cause of action sounding in tort, as a general proposition . carmot accrue until an injury is sustained That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual. The Statute of Limitations does not run until there is a legal right to relief Stated another way, accrual occurs when the claim becomes enforceable, i e , when all elements ofthe tort can be truthfully alleged in a complaint 15 In addition, the legislature has codified a "discovery rule" in CPLR ? 214-c which states: 15 Kronos, Inc v. AVXCorp, 81 NY2d 90,94 [1993](citations omitted) 15 where the discovery of the cause of the injmy is alleged to have occmred less than five years after discovery of the injury or when with reasonable diligence such injmy should have been discovered whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause ofthe injmy ... 16 The elements for the tort ofloss of the dght of sepulcher require the following elements: 1) there must be interference with the next of kin's immediate possession of decedent's body and 2) the interference has caused mental anguish, which is generally presumed . Interference can arise either by mmuthorized autopsy .. or by disposing of the remains inadvertently or, as in this case by failure to notify the next of kin of the death. The next of kin's mental anguish in these situations is then generally presumed but, in any event, cannot be felt until the next of kin is awar?e of the interference with his/her right ofpossession of the loved one's body for bmial 17 Contrary to the def(mdants' position, the Appellate Division, Second Department in Dixon v. City of New York 18 adopted the Appellate Division, First Depmtments holding in Melfi v. Mt. Sinai Hospital that claims of negligent infliction of emotional distress, loss of sepulcher and intentional infliction of emotional distress accrue at the time the plaintiffs become awm?e of the defendants actions and suffer mental anguish as a result of those actions In Dixon, the Appellate Division, Second Depmtment affirmed the order ofthe Supreme Comt that denied the defendant's motion to dismiss the plaintiffs claims for violation ofthe right of sepulcher and related claim for negligent infliction of emotional distress for failure to timely serve a notice of claim. In that case the plaintiff alleged that after the defendant performed an autopsy on her son's body, it was returned to her missing his brain and other organs/body pmts The plaintiff mgued that she did not discover the error until the receipt of the 16 CPLR ? 214-c(4) 17 Melfi v Mount Sinai Hosp., 64 AD3d 26, 39 [1" Dept 2009](citations omitted) 76 AD 3d 1043, 1044, [2d Dept 201 0]. 16 18 autopsy report after the decedent's burial In reaching its decision in Melfi the Appellate Division, First Department reasoned that, " because the injury is solely emotional, it is axiomatic that a next of kin cannot be injured emotionally until he or she becomes aware or has knowledge that his or her right of sepulcher has been interfered with unlawfully " 19 Likewise, in reaching its decision in Schultes, the Appellate Division, Third Department reasoned, "[b]ecause extreme emotional distress is an element to each of these causes of action, and plaintiff could not truthfully allege all of the elements until she suffered this element of injury H2Q Therefore, in New York the plaintiffs' cause of action for interference with the right of sepulcher accrues at the time the plaintiffs became aware ofthe moving defendants alleged negligent handling oftheir deceased family member. Consequently, the moving defendants' motion 14 to dismiss nsing the date ofha~vesting as the date of accrual is denied New York PlaintiHS As pointed out by the moving defendants, an analysis of the statute oflimitations requires consideration of I) the applicable statutory period; 2) the date of accrual; 3) the existence of any tolls or extensions, and 4) the date of interposition Here this court found that the plaintiffs' complaint set forth a cause of action for interference with the right of sepulcher In New York, this tort has a three year statute of limitations 21 Upon consideration ofthe papers submitted to this court for consideration, the court has set the following dates of accrual and interposition ofthe plaintiffs' actions as follows: 19 Melfi v. Mount Sinai Hosp, 64 AD3d 26, 39 [1" Dept 2009] 50 AD 3d 1277, 1278 [3"' Dept 2008] CPLR ? 214(5); see also, Melfi v. Mount Sinai Hosp., 64 AD3d 26, 39 [1" Dept 2009]. 17 20 21 Plaintifl!Relationship Decedent Date of Notification Suit Commenced 11126/2008 10/4/2007 9/28/2007 3/12/2008 6/11/2008 10/9/2007 10/4/2007 9/28/2007 6/10/2009 Carol Ann Bernard, Wife Lydia Dehay, Daughter James Gallas, Husband Mattie Kogut, Mother Albert C Newberg, Husband Victoria Nielsen, Daughter Mary Randazzo, Sister Claire Silverman, Sister John Wagner, Nephew Albert Bernard Candida Ramos Ellen Gallas Danette Kogut Norma Newberg Rosemary Nielsen Edgar Swanson Jerome Guss George Wagner 2/6/2006 3/2006 10112/2005 10/2005 1112005 2/14/2006 10/2005 3/2006 3/2006 The plaintiff John Wagner's action was commenced three years and six months after the accrual of a claim for interference with the right of sepulcher The plaintiff argues that the statute oflimitations for Wagner's action was tolled while the putative class action was pending. As this comt outlined in Hurtado v Purdue Pharma Co. the law of New York does not allow for class action lawsuits in tort claims 22 Consequently, any reliance by the plaintiffs that the statute of limitations was tolled during the pendency ofa putative class action is without merit Therefore, Wagner's case must be dismissed as time barred 22 6 Misc3d 1015(a), 800 NYS2d 347, [NY Sup Richmond Cty, Maltese J, 2005] 18 All Out of State Plaintiffs In this mass tort coordinated action several plaintiffs are out of state residents. It is unopposed that New York's 3 year? statute oflimitations for torts23 should apply to these plaintiffs, subject to the "borrowing statute" codified at CPLR ? 202, which reads as follows: An action based upon a cause of action accruing without the state carrnot be commenced after the expitation ofthe time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favm of a resident of the state the time limited by the laws ofthe state shall apply The Court of Appeals in Portfolio Recovery Assoc, LLC v. King held that CPLR ? 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued "24 Upon consideration of the papers submitted to this court fm consideration, the court has set the following dates of accrual and interposition of the out of state plaintiffs' actions as follows: Plaintiff/Relation Norman Card, Son State PA Decedent Norman Card Date of Notification DefEmdant: Summer2005 Plaintiff: Fall 2006 Stephanie S. Maggio, Wife NJ Basil Maggio 8/2006 9/28/2007 Snit Commenced 9/27/2007 23 CPLR ? 214 14 NY3d 410 [2010](citations omitted) 19 24 Karen Del Re, Daughter NT James Thornton Defendant: 6/2005 Plaintiff' 5/10/2006 10/4/2007 James Thornton, JI , Son NJ James Thornton Defendant: 6/2005 Plaintiff: 5/10/2006 1124/2008 Kevin Thornton, Son NJ James Thornton Defendant: 6/2005 Plaintiff: 5/10/2006 1124/2008 Cheryl Stewart, Daughter NJ James Thornton Defendant: 6/2005 Plaintiff: 5/10/2006 1/24/2008 Patricia Juliano, Daughter Martin Ulp, Son co GA James Thornton George lflp 6/2005 3/14/2006 1124/2008 9/28/2007 New Jersey PlaintiffS The state of New Jersey allows the next of kin to recover for the mishandling of a corpse . 25 But unlike New York the mishandling of a corpse is not a separate tort; rather it is an offshoot ofthe negligent infliction of emotional distress, or the intentional infliction of emotional distress. In Strachan v.. John F Kennedy Memorial Hospital, the New Jersey Supreme Comt dispensed with the general requirement that the plaintiff suffer a physical injury in both intentional infliction of emotional distress, and negligent infliction of emotional distress claims 25 See, Strachan v John F. KennedyMem Hasp, 109 NJ 523 [1988] 20 when dealing with the mishandling of a corpse 26 Like the New York cause of action for interference with the right of sepulcher, the negligent infliction of emotional distress based on the mishandling of a corpse in New Jersey seeks to redress the emotional injmy sustained by the decedent's next ofkin 27 Therefore, New Jersey's two year statute oflimitations governing personal injmy actions must apply in those cases where New Jersey residents are plaintiffs 28 In certain situations New Jersey, like New York, applies a discovery rule to those settings where the" mechanical application ofthe statute oflimitations " 29 would produce a harsh result The New Jersey "discovery rule" provides that: in an appropriate case a cause of action will be held not to accrue until the injmed party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim 30 New Jersey case law maintains that a plenary hearing is necessary to determine a plaintiffs entitlement to use the "discovery mle " 31 However, it is clear to this comt that the psychic injmy in these cases could not have occmred at any time prior to a plaintiff's notification that the body oftheir family member had been mishandled . Therefore, it is the finding ofthis court that the New Jersey plaintiffs are entitled to the application of New Jersey's "discovery rule" to determine the date of accrual, which is the date each plaintiff was notified ofthe mishandling of their family member's body. ---???-?-----26 Id. at 5 37-538. Id; see also, Lacy v. Cooper Hasp /Univ Med. Ctr. 745 FSupp 1029, 1035 [D NJ 17 1990] 28 N J. Stat Ann 2A:14-2(a). Maldonado v Leeds, 865 A2d 741 [NJ AppDiv 2005] Id at 745 Id. 21 29 30 31 Here, there is an issue as to whether the actions commenced by the James Thornton's next ofkin are timely. The plaintiffs, Karen DelRe, Tames Thornton, Tr , Kevin Thornton and Cheryl Stewart maintain that they first became awar?e that tissue was unlawfully harvested from their father on May 10, 2006 when Karen DelRe was contacted by the New York City Police Department Defendants argue that Karen DelRe's bill of particulars states that she was first notified in June 2005. DelRe's attomeys rugue that the 2005 date listed in response to the defendants demand for a bill ofparticulars was a scrivener's enor.. According to her attorney it vvould have been impossible for her to be noticed in June 2005 when Mastromarino arrd BTS's criminal scheme did not come to light until October 2005. In addition, DelRe's amended Complaint states that she was contacted on May 10, 2006 Therefore, an issue of fact exists as to the date when Karen DelRe fiist received notice ofthe unlawful harvesting of her father's tissue Consequently, the motion to dismiss these case on the grounds of statute of limitations is denied In the action commenced by the other New Jersey plaintiff, Stephenie Maggio, there is no issue that her claims are timely in both New Jersey and New York Colorado Plaintiff, Patricia Juliano, resides in Colorado She is a daughter ofthe decedent James Thornton and a sibling of co-plaintiffS: Karen DelRe, James Thornton Jr, Kevin Thornton and Cheryl Stewart The defendarrts argue without opposition that accrual is defined by statute in Colorado. According to C.R SA ? 13-80-1 08(1) " a cause ofaction for injury to person shall be considered to accrue on the date both the injury and its cause rue knovm or should have been known by the exercise ofreasonable diligence,'"' In addition, Colorado imposes a two year statute oflimitations on personal injuries allegedly caused by negligence 33 The plaintiffs do not challenge the defendants articulation of the relevant Colorado laws . As was the case with her New Tersey siblings, arr issue of fact exists as to when she was first made aware of the unlawful harvesting of her father's tissue. Consequently, the defendants' motion to dismiss 32 See also, Elgin v Bartlett, 994 P2d 411 [Colo . 1999]. 33 C RS 13-80-102 22 Tuliano 's action on the basis of statute of limitations is denied. Pennsylvania Pennsylvania recognizes a tort wherein a defendant" is liable for infliction of emotional distress in connection with handling or disposing of a dead body if his conduct was intentional, outrageous or wanton " 34 Similar to New Jersey, Pennsylvania has a two year statute of limitations for negligence causes of action 35 I he defendant's mgue that the date listed in the Card's bill ofpmticulms for notice is "summer 2005" Similm to the mguments made regarding the next of kin of Thornton, plaintiffs cmmsel mgues that the "summer 2005" date was a scrivener's error Card's attorney also argues that Card could not have been noticed before the fall o?2005, after Mastrommino and BTS's scheme was unemthed. In addition, dming his examination before trial Card testified that he was contacted in the fall of2006 Consequently, it is an issue of fact as to when Card was notified of the unlawful harvesting of his father's tissue After due consideration, motion sequence 7 for violating the statute of limitations made by RTI Donor Services, Inc , RII Biologics, Inc (flk!a Regeneration Technologies, Inc.) and Tutogen Medical (United States), Inc. is granted to the extent that the action brought by plaintiff Wagner is clisrnissed as being time barred "Morrow v. Pennhurst State School and Hosp., 12 Phila.Co Rptr 523, 1985 WL 384525 [PA 1985]. 35 42 PaCSA ? 5524 23 Summary .Judgment for Lack of Standing, Motion 6 The defendants, RTI Donor Services, Inc., RTI Biologics, Inc (f/k/a Regeneration I echnologies, Inc) and Iutogen Medical (United States), Inc move for summaty judgment dismissing the plaintiffs in the Teufel, Ulp at1d Vastlyeva cases on the basis of!ack of standing. The law in New York is cleat that only a decedent's smviving spouse, or if no spouse survives, the decedent's next-of-kin may have a cause of action for interference with the right of sepulcher, because it is they who have the right to bmy the decedent 36 Here, the defendat1ts seek the dismissal of Robin Samoilow in the Teufel matter, and Mattin Ulp in the Ulp matter. be noted that Vasilyeva's cause of action was time bat red and dismissed . It should Teufel Robin Samoilow is the daughter ofAlbcrt Teufel whose tissue was unlawfullyhatvested by Mastromarino and B IS Her mother, Jean I eufe! commenced an action which Srunoilow later joined as a plaintiff Consequently, Srunoilow's individual case must be dismissed because her mother, Jean I eufe! is the surviving spouse and held the right to bury her father Jean I eufe!'s case will survive Ulp Ihc case concerning the decedent George Ulp, raises an interesting issue concerning standing. At the commencement of this action the decedent's wife was alive, but the decedent's son, Matlin Ulp commenced the action.. Since the commencement ofthis litigation plaintiff's counsel represented to the court that the decedent's wife has since died leaving Matlin Ulp as the surviving next of kin. It is the determination of this court that Mattin Ulp of Georgia fails to satisfy the first element of a claim for interference with the right of sepulcher and was not the next of kin ofthe decedent, George Ulp when this action was commenced Consequently, the Ulp action is dismissed See, Gostkowski v. Roman Catholic Church, 23 7 AD 640 [2d Dept 1933]; see also, Stahlv Necker, !84AD 85 [!"Dept 1918]. 24 36 Summary Judgment on the Basis of No I issue Received, Motion 12, Newberg The defendants, RII Donor Services, Inc, RTI Biologics, Inc. (fi'k/a Regeneration Technologies, Inc) and Tutogen Medical (United States), Inc move for summary judgment dismissing the Newberg based on the fact that their records do not indicate receipt of tissue. However, the moving defendants do not dispute that their facilities received Norma Newberg's blood and that they specifically rejected receiving any tissue because the blood was diseased and not acceptable The moving defendants do not deny that they received the tissue harvested by Michael Mastromarino arrd his company, BTS. Whether the receipt of blood constitutes interference with the plaintiff's right of sepulcher is a question of fact for the jury to determine The Appellate Division, Second Department's 2010 decision in Shipley v City ofNew York, held that possession of a portion of a decedent's body satisfied the element of interference with the next of kin's possession ofthe decedent's body 37 In Shipley, the decedent died in a car accident on January 9, 2005. On January 10, 2005 the decedent's father permitted the New York City Medical Examiner to conduct an autopsy on his son's body after his death in an automobile accident At the time of the autopsy the decedent's brain was removed from the skull cavity. On January 13, 2005 the decedent's remains were released to the family for a Roman Catholic burial But unbeknownst to the decedent's family the decedent's brain remained at the Medical Examiner's office. In early Mar?ch 2005 a group of students from the decedent's high school toured the Richmond Connty Mortuary and there discovered the decedent's brain kept in a jar labeled "Shipley" These students in tum ale~ ted the decedent's sister who then alerted her parents. The decedent's parents commenced an action for inte~ference of the tight of sepulcher against the City of New York. The Appellate Division, Second Department held that the Medical Examiner's office was required to inform the next of kin that it had retained the decedent's brain While the facts ofthe Shipley ease are not completely analogous, it is clear that a 37 80 AD 3d 171 [2d Dept 2010]. 25 decedent's next of kin are entitled to bury the entire body of the decedent Here, there is no question that the moving defendants possessed portions of the decedent's body after the next of kin either bmied or cremated the decedent This is true for all plaintiffs which are the subject of this motion inclusive ofNewberg's blood In the age of human tissue haivesting, whether a tissue processor possesses ill-gotten tissue, bone, organs or blood constitutes the type of interference contemplated at common law, which is an issue of fact for a jury to determine The aforementioned constitutes the decision of this court Sepaiate orders in accordance with this decision are issued under the plaintiffs' individual index numbers ENTER, DATED: Aprill2, 2012 26 APPENDIX A This Decision Relates to the Following Plaintiffs where a Note of Issue and Certificate of Readiness has been filed: Name of' PlaintiH: Index No. and County: Mass Tort Index No.: Carol Ann Bernard Frank Boone Norman Robert Card, Tr 10322/10 [Queens] 700002/10 [Richmond] 103716/07 [Riclunond] 750040/08 750041/08 750007/08 Veronica Cossetto LydiaDehay Melba Espaillat James Gallas Karen Del Re, Patricia Juliano, James Thornton, Jr., Cheryl Stewmt, and Kevin Thornton Mattie Kogut 7 00004/1 0 [Putnam] 103824/07 [Richmond] 700006/10 [Riclnnond] 103743/07 [Richmond] 103823/07 [Riclnnond] 750042/08 750009/08 750004/08 750014/08 750017/08 8190/08 [Kings] 3.3691/05 [Kings] 750019/08 Stephenie S. Maggio Nelly Mejia Albert C Newberg Victoria Nielsen Mary Randazzo Christine Reid and Thomas Reid Mary Ann Scanduua Clair Silverman 103744/07 [Richmond] 116202/10 [New York] 102525/08 [Richmond] 37500/07 [Kings] 37071/07 [Kings] 700003/11 [Richmond] 750020/08 750051/08 750023/08 750024/08 750027/08 750048/08 - 103741/07 [Richmond] 103 739/07 [Richmond] 27 750029/08 750030/08 Jean Douglas I eufe! and RobinS. Samoilow Carrie I orchio and Jason I orchio Martin Ulp Arkady Vasilyeva, Klaudia V asilyeva, and InnaPopil John Wagner and Linda J. Stevens-Wagner 700005/10 [Richmond] 750043/08 700006/09 [Richmond] 750038/08 103 746/07 [Richmond] 103745/07 [Richmond] 750038/08 750033/08 11398/06 [Monroe] 750034/08 28 APPENDIX B. Plaintiffs subject to motion to dismiss based upon the statute oflimitations Ca10l Ann Bernard Norman Robert Card, Jr LydiaDehay Tames Gallas Mattie Kogut Stephenie S Maggio Albert C Newberg Victoria Nielsen Mary Randazzo Mary Ann Scandurra Clair Silverman Karen Del Re Patricia Juliano James Thornton, Jr Cheryl Stewart Kevin Thornton Carrie Iorchio and Jason Torchio Martin Ulp Arkady Vasilyeva Klaudia Vasilyeva Inna Popil John Wagner and Linda J Stevens-?Wagner 29