Litigation
Almost seventeen hundred members of the families of the identified corpses sued Tri-State and the funeral homes that had shipped the bodies there, and were eventually granted class-action status in two courts in two different states. Class-action status was granted by Judge Neil Thomas in Hamilton County Tennessee Circuit Court. This case was filed by Nashville attorney David Randolph Smith. Smith associated Chattanooga defense attorney Phil Fleissner to act as co-counsel with Smith for the class. Judge Harold Murphy in the United States District Court for the Northern District of Georgia also granted class-action status after the filing of the plaintiff's master complaint.
Hundreds of cases were filed in the states of Tennessee, Georgia & Alabama. Ultimately two class-action lawsuits were filed one in the State of Georgia in the United States District Court for the Northern District of Georgia. The master complaint was filed, defendants answered, and litigation ensued. The class certification hearings resulted in certification of a class action after hearings were held in Hamilton County, Tennessee in front of Judge Neal Thomas. Judge Thomas, and the Oden class action, certified the numerous cases pending in the State of Tennessee as a class action. The Tennessee class action proceeded with various hearings and motions being filed before the plaintiff class ultimately decided to proceed with the class-action filed in the United States District Court for the Northern District of Georgia. The class-action in the state of Tennessee was ultimately decertified by Judge Thomas after it was made clear that the class representative, Oden, chose to participate in the class action pending in the State of Georgia. There were numerous reasons why the class was decertified, one of them apparently being that Oden, as a class representative, made an election to participate in the national class action pending in Rome Georgia. Most of the cases filed in Tennessee, Georgia, & Alabama chose to participate in the class-action and Rome Georgia. Two trials occurred, with witnesses testifying in both trials. The trials were open to the public, and were widely reported by the news media with numerous people testifying including Dr. Kris Sperry of the Georgia Bureau of investigation. The transcripts are public record; neither trial proceeded very far before settlements were reached.
The funeral homes sued Tri-State and Marsh, eventually settling first for $36 million with the plaintiff's class in the United States District Court for the Northern District of Georgia. Ultimately, the Marsh defendants also settled for $3.5 million after their insurer, Georgia Farm Bureau, agreed to pay the settlement. After heated negotiations among the attorneys regarding the exact terms and conditions of the settlement, the settlement failed. The parties could not effectuate a settlement that would globally resolve all cases in Tennessee, Georgia, and Alabama. The plaintiff class filed a Motion to Enforce the Settlement Agreement alleging a settlement agreement had been reached between the parties, and that the court should enforce the settlement agreement. Stuart James and Frank Jenkins responded to the motion asserting that the settlement could not be effectuated and that the parties never could complete the settlement due to the inability to reach an agreement to put together a settlement class globally resolving the cases. Judge Harold Murphy of the United States District Court for the Northern District of Georgia thereafter ordered a second trial. The second trial began in August 2004.
Bill Brown, an attorney in Bradley County Tennessee, chose not to participate in the class actions. In his cases, Akers, Burns & Hall, Brown alleged various causes of action against Marsh, Tri-State Crematory, and the funeral homes.
During the second trial in August 2004, the families settled with the Marsh family by agreeing to a conservation easement on the Marsh property and an uncollectable judgment against the Marsh family for $80 million, subject to a state court's pending determination that the incident was actually covered by the family's homeowner's policy. Stuart James and Frank Jenkins, the attorneys for the Marsh family in the civil litigation, crafted a judgment that was not collectable against any of the Marsh defendants. Therefore, the plaintiffs' class filed a claim against Georgia Farm Bureau in State Court, that claim settled in late 2007 for $18 million dollars resulting in the $80 million dollar judgment being set aside and a settlement of $18 million going to the plaintiff's class members. Georgia Farm Bureau was represented by Duke Groover and Ben Land of the State of Georgia. Georgia Farm Bureau is paying the settlement under a homeowner's policy of insurance.
Much of the earlier settlement with the funeral homes has been paid. The Marsh family has not paid any amount to the plaintiff's class, and agreed to set aside an acre of land as a conservation easement, keeping the land in a natural state in remembrance of those who were found on the property. The public does not have access to the land, and the land remains titled in the Marsh family name.
Several claims remain in Tennessee. Claims that are being handled by plaintiffs' attorney Bill Brown and by Terri Crawford pro se have been dismissed by Judge Neil Thomas and the dismissal upheld by the Tennessee Court of Appeals. Brown and Crawford have requested the Tennessee Supreme Court to review the dismissal of the claims. Stuart James represents Brent Marsh in these appeals and the Tennessee Supreme Court has denied the request for appeal. The cases are dismissed pursuant to the legal findings of the Tennessee Court of Appeals in the Crawford v. Buckner Rush & Marsh decision.
Brown, on behalf of certain plaintiffs living in Bradley County, Tennessee, has also fought to require Brent Marsh to testify in court on the claims that remain in the Bradley County Circuit Court in Cleveland, Tennessee. Brown asserted that it was time for Marsh to tell family members what happened to their loved ones' bodies, offering an explanation of what he did and what happened to those bodies.
Judge Neil Thomas, to whom the Tennessee civil cases have been specially assigned, held that Marsh had waived his Fifth Amendment privilege upon pleading guilty to more than 700 felony counts in the State of Georgia. After consulting with his client's criminal law lawyers, Ken Poston and Ron Cordova, Stuart James argued that the circumstances of the claim permitted Marsh to continue to assert his Fifth Amendment privilege. Judge Thomas' ruling that Marsh had waived his privilege was appealed to the Tennessee Court of Appeals with the Court of Appeals reversing and remanding the issue of the Fifth Amendment to Judge Thomas for further consideration. The Court of Appeals held that Marsh could assert his Fifth Amendment privilege in any testimony subject to review by Judge Thomas. No further testimony has been solicited by Brown.
Walker County, Georgia has also sued the Marsh family to recover the cost of its investigation into the incidents on the Marsh property. Walker County claims that it is entitled to recover almost $2 million resulting from its investigation. Frank Jenkins and Stuart James have represented the Marsh defendants in this litigation which resulted in the Walker County Superior Court, Judge Smith sitting specially, dismissing the claims. The Georgia Court of Appeals heard oral argument and issued an opinion upholding the dismissal of the claims. Walker County, through its attorneys Coppedge & Evans, amended its complaint to allege that Walker County was cleaning up an environmental hazard and is therefore entitled to recover damages. The environmental claim was also dismissed by Judge Smith, and the issues regarding the environmental claim are currently pending in the Georgia Court of Appeals.
The Georgia Court of Appeals recently ruled that Walker County Georgia does not have a claim under Georgia's Hazardous Site Response Act. The court ruled that the county had no standing to bring any legal claim for environmental cleanup. The attorneys for Walker County have applied asking the Georgia Supreme Court to review the Court of Appeals decision. The Petition for Certiorari is was denied by the Georgia Supreme Court. Walker County filed a motion for reconsideration with the Georgia spring court after they denied the County permission to appeal to the spring court. The motion was denied by the Court. All lawsuits filed by Walker County Georgia have been dismissed in the claims are now at a conclusion. The pleadings involved in this appeal including the rulings of the court may be found at LegalEase.
The Tennessee Supreme Court has also dismissed all claims maintained by people who are classified as non-next of kin, stating that non-next of kin have no standing to bring a claim under Tennessee law. One of the non-next of kin claims was maintained by Terri Crawford. Crawford has been outspoken regarding these cases, and at one point during the investigation was employed by the state of Georgia and the federal government as a part of the investigative team. She later brought a claim to recover money for the loss of her brother's body. After consideration by the Tennessee Court of Appeals and review by the Tennessee Supreme Court Miss Crawford's claim was dismissed and was ultimately dismissed by Judge Neil Thomas pursuant to the order of the Tennessee Court of Appeals and the order of the Tennessee Supreme Court denying any further appeal on behalf of Crawford. Under Tennessee law, non-next of kin may not bring a claim under the circumstances as alleged by plaintiffs across the state of Tennessee, Georgia, and Alabama. Under Tennessee law only next of kin may maintain a claim. Therefore, if the deceased is survived by a spouse the spouse has a claim and no other family member has a claim. The Tennessee Court of Appeals has outlined a succession of who may be a next of kin depending on which next of kin survives the deceased. The ruling of the Court of Appeals resulted in a dismissal of numerous non-next of kin cases.
However, several claims are being maintained in Bradley County Tennessee Bill Brown, the attorney for some claimants who are classified as next-of-kin or persons who have a contract right, has fought to have Brent Marsh testify in deposition. Stuart James the attorney for Brent Marsh, has resisted the deposition asserting that the Fifth Amendment Privilege is still available to Marsh due to the circumstances of the case. The issue involving whether Marsh still may maintain his Fifth Amendment privilege has been appealed to the Tennessee Court of Appeals. The Court of Appeals sent the case back for further consideration by Judge Neil Thomas on whether the Fifth Amendment is still available to Marsh. The Court of Appeals ruled that Marsh does not have a blanket loss of his Fifth Amendment privilege and that the trial court should review the privilege on a question by question basis to see if the privilege is still available to Marsh. The legal issues continue in these cases, and there may be issues that will take the cases back into the appellate court system of Tennessee.
One of the cases being handled by Brown and James was scheduled for trial for April 2009. The presiding judge, Neil Thomas of Hamilton County, Chattanooga Tennessee, will preside over the claim which will be tried in the Circuit Court of Bradley County, Tennessee.
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