A Massachusetts Superior Court judge has dismissed negligence, infliction of emotional distress and other claims against Harvard and the operators of its medical school’s anatomical gift program by relatives of people whose donated bodies were allegedly abused, marketed and sold by the former morgue manager.
The judge found that Harvard and the program’s operators are protected from suit under a Massachusetts statute granting qualified immunity to those receiving bodies under anatomical gift programs.
Suffolk Superior Court Judge Kenneth W. Salinger said that the allegations in the complaints do not plausibly suggest that Harvard and the program operators failed to act in good faith in receiving and handling the donated bodies, or that they are legally responsible for the former morgue manager’s alleged misconduct, as would be required to overcome the qualified immunity granted by the Massachusetts version of the Uniform Anatomical Gift Act (UAGA).
The former manager of the morgue, Cedric Lodge, has been charged in federal court in Pennsylvania with crimes for allegedly running a years-long scheme in which he marketed, stole, and sold body parts from human remains that had been donated for use in education or research. Harvard contends that Lodge stole parts of bodies that had been sent back to the morgue after their educational use was complete, and before the body was sent out for cremation or other final disposition.
As part of this scheme, Lodge allegedly repeatedly brought unauthorized people into the morgue to view donated bodies and select parts that they wished to purchase. Lodge would cut out and take away the selected body parts, so that he and his wife could sell and sometimes ship them to customers. Prosecutors claim Lodge engaged in this scheme from at least 2018 until early 2023.
Consolidated Cases
Forty-seven family members and relatives brought 12 lawsuits that were consolidated in the Massachusetts court. All plaintiffs sued Harvard for negligence, including negligent infliction of emotional distress or negligent supervision. The various complaints also include claims against Harvard for wrongful interference with a corpse, vicariously liability for Lodge’s misconduct, breach of contract, and unjust enrichment. Actions that name the employees allege that they were negligent, liable for breach of fiduciary duty, and liable for interference with a corpse.
The UAGA provides that anyone who acts in accordance with the statute, “or who attempts in good faith to do so,” shall be immune from suit or prosecution. The judge noted that the UAGA was intended to encourage the making of anatomical gifts by eliminating uncertainty as to the legal liability of those authorizing and receiving them. The broad language of the immunity provision was considered “essential if the medical profession is to be able to accept anatomical gifts freely and without fear of legal proceedings.”
In a case like Harvard’s concerning the donation of entire human bodies for use in education or research, the storage and ultimate disposal of the body when it will no longer be used for those purposes are also integral parts of the donation and receipt process that the UAGA authorizes and covers.
‘Good Faith’
Under such a statute, a plaintiff suing bears the burden of proving that the statutory immunity provision does not apply because the defendant did not act in good faith. The judge noted that the insertion of the “good faith” clause means there is immunity if the defendants make a “good faith” attempt to comply with the UAGA, whether the attempt is “successful or not.” For an attempt to be in “good faith,” it must reflect “an honest belief, the absence of malice, or the absence of a design to defraud or to seek an unconscionable advantage over another.”
According to the Superior Court’s opinion, nothing alleged by the plaintiffs suggests that the defendants failed at any time to act in good faith. The complaints do not allege that Harvard employees were allowed to remove, keep, or sell human body parts, that any of the Harvard defendants knew what Lodge was doing, or that any of the Harvard defendants gave Lodge permission to do so.
Even a showing of negligence would not demonstrate an absence of good faith. The plaintiffs’ allegation that Harvard “should have known” about Lodge’s ongoing scheme is insufficient because, if true, it would show only that Harvard was negligent, not that it failed to act in good faith.
Beside the Point
A key thrust of the plaintiffs’ arguments was that the “nauseating misconduct” allegedly undertaken by Lodge could not possibly constitute a good faith attempt to comply with the UAGA requirement that bodies donated for use in medical education, when no longer needed for that purpose, must be properly and respectfully interred or disposed of by burial or cremation. Plaintiffs point out that the UAGA immunity section in no way immunizes medical institutions for illegally displaying, dismembering, and selling parts of donated bodies, as Lodge has been charged with doing.
“Those arguments are correct, but beside the point,” the judge countered. “They are not relevant to the claims against the Harvard defendants because the facts alleged in the complaints do not plausibly suggest they engaged in any such conduct, or that they can be held liable based on Lodge’s conduct.”
The only way that the plaintiffs could use Lodge’s criminal conduct to overcome Harvard’s qualified immunity would be to show that Lodge was acting within the scope of his employment at the HMS. The allegations make clear, however, that Lodge’s wrongdoing was not within the scope of his employment and therefore may not be imputed to Harvard.
To the contrary, Lodge’s “horrifying scheme was allegedly undertaken for purely personal gain, and could not possibly have been of any benefit” to Harvard or furthered the interests of Harvard in any way. “Plaintiffs therefore may not rely upon Lodge’s alleged misconduct to defeat Harvard’s qualified immunity,” the judge declared.
‘May Seem Unfair’
The judge acknowledged that “it may not seem fair that Harvard can avoid responsibility and liability in this case even if, as plaintiffs allege, it was negligent” and as a result Lodge got away with stealing body parts for years. “But the court must follow the clear command of the UAGA immunity provision. Like all statutes, this immunity provision implements a legislative policy judgment that the court must enforce without questioning whether it is wise, effective, or sound policy,” Salinger wrote.
The judge promised to quickly enter the judgment to allow the plaintiffs to appeal without delay and without waiting for the claims against other defendants, including Cedric Lodge, to be resolved.
An attorney for the families, Kathryn Barnett with Morgan & Morgan, said in a statement to the media that the families were “disappointed” and do plan to appeal. “These families have had to relive the trauma of losing their loved ones many times over, and we strongly believe that they deserve a day in court,” she wrote.
In related litigation, Liberty Mutual Insurance Co. is seeking a declaratory judgment that it is not obligated to defend or indemnify Lodge under a homeowners policy.
Topics Fraud Legislation Claims Massachusetts
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