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-: SJC-13688,
Anne Weiss et al versus President and Fellows
of Harvard College et al.
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-: Okay, attorney Catalano, whenever you're ready.
Catalano: Just a moment, Your Honor,
to fix this. -: Of course.
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-: Good morning Chief Justice Budd, associate justices.
May it please the court, Jeffrey Catalano
for the plaintiff appellants.
This is obviously a case of great public interest
and policy importance
involving a potentially uniform application
of a law across the country.
It is with that context
and for the four following reasons
that the trial court's order must be reversed,
in this case, remanded back.
First dismissal on a 12b6 was inappropriate
because the plaintiffs were unfairly denied discovery
and the opportunity to further develop facts
alleged in their complaint, facts that plausibly suggest
a lack of good faith by Harvard
arising from the abhorrent conduct in Harvard's own morgue
by Harvard's full-time employee morgue manager,
Cedric Lodge, conduct that was persistent
and repeated over five years.
Second, the plain language of the UAGA
and its development through its history
demonstrates that it applies to the donative process,
or the transactional aspects of the donation
as we've called it, and not to the disposition of the body.
Simply stated, it is silent with regard to anything related
to what happens in the morgue:
handling the body, tracking the body,
labeling the body, preserving the body,
or securing the body.
The facts here involve a different stage
of the anatomical gift process,
which the UAGA simply does not address.
Third, however, if the court were to determine
that the UAGA does apply to this conduct,
then the undeniable, admitted bad faith
of its own morgue manager, Cedric Lodge,
over many years is imputed to Harvard itself under the UAGA.
As this court in Carey versus New England Organ Bank
and every other court that's looked at this issue
of good faith or bad faith under the UAGA has determined,
it is the conduct of the individual at issue, the employee,
whether it be an organ bank or a hospital
that is looked at to determine if the institution itself,
as was the case in Carey, did or did not commit bad faith.
No court has looked at the issue of good faith
under the UAGA and grafted onto it
a vicarious liability determination,
which we argue respectfully the trial court erroneously did.
Finally, application of the immunity for this conduct
would run counter to the intent of the UAGA
to encourage and facilitate anatomical gifts.
It would discourage donations
if there is no institutional accountability
for anything that may happen,
any desecration of the body prior to its disposition.
Now if I may, I'd like to first expand on why-
-: Go to the plain language one first
as opposed to the discovery for a second.
So there is language, right?
There is language that addressed this, right?
It's permissive language about allowing cremation, burial,
so it it's not as if it's not addressed,
it's not silent, right?
-: It's silent with regard to the specific activities
that would be related to the disposition.
And the language you're referring to, Your Honor-
-: Well, but it's clearly dealing
with the end of the process, right?
It's incorporating the end directly.
It's not directing exactly how you do it
because the family may not want to do these things,
but it is addressing it.
-: We argue that to the extent that it addresses it,
it addresses it in the context
of a procurement organization.
And in terms of how it's read-
-: Is that exactly, is that right too?
'Cause I thought that when you read the exact language,
I'm just looking at it,
"Subject to the terms of the document in this chapter,
"a person who accepts anatomical gift of an entire body,"
that's a medical school, right?
"May allow embalming, burial or cremation,
"the use of remains in the funeral service."
-: A few things about that, Your Honor.
First,
that sentence is within an entire section
dealing with only procurement organizations.
Now, to the extent that that could be interpreted
to apply to a medical school
when there's nothing within the actual section
or even in the comments that suggest it may,
to the extent it can be, what it really is referring to
is that the medical school may allow
for cremation, burial or funeral.
We are not arguing that Harvard did not allow for that.
-: But does it necessarily entail storage
and proper security?
Catalano: I don't believe so, Your Honor,
because if there-
-: 'Cause we have the medical purposes,
the scientific purposes, then we have the disposition
of the body after that, correct?
-: Correct. -: Both in the statute.
-: Yes. -: In between those two events,
there is storage and proper security, correct?
Catalano: True. Yes, Your Honor.
-: So doesn't the statute necessarily involve the storage
and security of the remains, in respect for the remains?
-: I think it involves the storage,
but there's nothing within the statute.
And this court's decision in Carey is instructive
because the court said in Carey,
look first to whether there's been any technical requirement
or any provision of the statute that's been violated,
there are many technical requirements
pertaining to the donation process.
If the commissioners wanted
to institute technical requirements
pertaining to the disposition,
they could and should have done so.
This statute's been around since 1968,
it's gone through multiple revisions.
When Massachusetts repealed the prior version
and created the new one in 2012,
not only did they not expand it, but they narrowed it.
They narrowed it in two important ways.
There once had been a statement
that the institution must decently bury the body,
that no longer exists.
If the words decently bury were in there,
Harvard would have a better argument
that somehow we're alleging a violation of the UAGA,
which we are not.
And in addition to that, in the section 18 immunity section,
there's a sentence as we've noted in our briefs
that relates to what may constitutes prima facie evidence
of good faith, and that is a donor card among other things.
It's within the context of section 18,
suggesting that this is what this pertains to.
-: But don't when you negotiate,
even with the anatomical gift people,
don't you have the ability to say,
"I want my relative buried properly,
"I want them cremated."
And they can build that into the gift, is that right?
-: Yes, they can.
There is, the instrument of anatomical gift
allows the donor to determine
how they want their body handled,
once, in accordance to the language in that instrument,
it is no longer useful.
-: Right, so I mean, if people can't set conditions
for, you know, the treatment of their deceased relatives
after the scientific work is done,
they're not gonna give their bodies
for that purpose, are they?
I mean, I don't quite see.
I see there's clearly issues
about how this was done afterwards,
and the morgue managers behave reprehensibly,
but I just don't see the argument that the whole process
isn't covered by this.
It just doesn't seem to encourage the purpose
of the statute, as your fourth argument talks about.
-: Well, I think the purpose of the statute, Your Honor,
is to ensure that the donation happens as efficiently,
as effectively as it should.
And that's all it articulates, that's all Carey says.
You should look at the technical requirements.
-: We want people to give,
it believes that this kind of donation
is incredibly important for transplants and science
and training doctors in the future,
so you want to encourage this.
Catalano: Absolutely.
-: And the whole process encourages it if it's done properly
and discourages it if it's done improperly, right?
-: Yes, and if it's done improperly,
as was the case admittedly in this particular context
of Harvard's morgue, it will have the effect
of discouraging people from donating their bodies
if there's no institutional accountability for that conduct.
We would still have to prove negligence.
Harvard's not strictly liable
by not applying the immunity to this conduct
when it is not specifically articulated
anywhere in the statute.
And again, Your Honor, I would strongly argue
that that sentence rate disposition-
-: Can I get you to those two arguments then?
'Cause you've got an argument about,
and Carey provides for overruling this, right?
Carey has language to the effect, I'm just looking at it,
where it's pervasive, right?
The conduct is pervasive,
the negligence or the misconduct,
whatever it is, is pervasive.
And this is pervasive in respect to the morgue manager,
but it doesn't seem to apply to any others.
And I'm just...
And let me compound the sentence, one more thing.
When you seek to hold Harvard liable,
you use the vicarious liability standard,
or at least the plaintiffs in the class action complaints.
They all use that standard
of vicarious liability, don't they?
Every one of the causes of action
directed at Harvard uses vicarious liability.
-: Because if we must allege vicarious liability,
which we can then argue
there is a vicarious liability argument applicability here
if necessary under the Pettiford case, for one,
which we submitted,
the fact we wanna back up to say
that if that's necessary, yes,
but we don't believe it's necessary
because no other court has looked at it,
to the extent that you wanna say something
is outside the scope of that person's employment
or not for the benefit of the employer,
almost every instance of bad faith
could be distinguished by the institution.
And then you're left with, well, whose bad faith
is necessary in order for it to be attributable
to the institution.
Is it the president of Harvard? Is it the board of trustees?
Every institution is run by people
and every court that's looked at the bad or good faith
of the institution looks to the people
to determine if the institution,
the only defendants in these cases,
the only defendants in those cases
was or was not guilty of good or bad faith.
And this court in the Prado case,
involving a peer review issue where someone alleged,
a doctor alleged that he was being discriminated against
by someone on the peer review committee,
looked to the individual on the peer review committee
to determine if his conduct was good or bad faith,
the only defendant being the hospital.
But in the context of this immunity statute,
it is the bad faith of Harvard,
which is undeniable and admitted over many years,
peculiar and persistent.
Peculiarly persistent non-compliance,
which Carey said could be indicative of bad faith.
-: So we read through your complaints
'cause there are a lot of them,
we're gonna find that you're trying to sue Harvard
not through vicarious, both ways,
that you're holding Harvard responsible
for the morgue manager's actions
regardless of vicarious liability.
Is that what you're doing?
'Cause when I was reading through the complaints
I saw each time you got to Harvard,
you had a vicarious liability discussion.
But I don't need to go that far.
-: Well, if the court were to determine
that the statute applies,
which of course we strongly say it does not, then yes,
we would argue that the bad faith of Mr. Lodge,
the morgue manager, was the bad faith of Harvard.
However, if the court were to determine
that the statute doesn't apply,
then a vicarious liability argument
would apply to his conduct.
-: And what cases...
So I guess all the cases really involve one employee.
This is different in the sense of we have someone
way out of bounds, right?
And I understand one of the arguments you make in your brief
is if we can't hold Harvard responsible for its, you know,
chief manager, how can we hold them responsible?
Does he work for anybody else?
Does he report to either of the other two people
you're suing or are they totally separate?
The morgue manager, does he report to, like the dean
of Harvard's Medical School, who does he report to?
-: What we believe, based on what we know so far,
is that he does report to the two supervisors,
Mr. Cicchetti and Ms. Fay.
Now discovery would need to be born to-
-: The anatomical gift person supervises the operation
of the morgue?
-: Again, Your Honor, we're devoid of facts in discovery
to determine the full extent of their involvement,
but we do know that they were supervisors of Mr. Lodge.
-: So your argument is that they should have known-
-: More than...
-: based upon his ghoulish behavior
and other factors, correct?
-: Well, there's certainly enough facts to plausibly suggest,
not only that they should have known, but they did know.
And our complaint makes reference
to the monitoring of the entrances,
that we argued did not take place appropriately.
We have since learned from the summary report
attached at the record appendix page 658,
that there were cameras in place,
that there are key entry systems
that validate that this is not a fishing expedition.
-: So they would've seen
his quote unquote customers come and go?
-: Or had constructive knowledge of it.
And if they had constructive knowledge
and or seen it, then they ratified his conduct,
which is undeniably bad faith in the part of Harvard.
-: Well, there's a director of security who sees the film,
is that what we're to infer?
I'm just trying to make sure I understand that.
'Cause he's running the morgue,
but you're saying the cameras,
we don't know where the cameras go, right,
from the allegations here, right?
-: From the allegations, no,
but the summary report was attached,
which was before the court at the motion to dismiss stage.
And those cameras were at every entrance.
So to the extent he was letting unauthorized strangers in,
dragging body parts out of the morgue into his car
in the parking lot with a license plate
that said Grim Reaper,
that's all information that we believe plausibly suggests
that Harvard failed to act in good faith,
meaning that they did not act in an honest belief
that he was doing his job correctly,
especially where he was suspended twice
for reasons we don't know.
And that's in our complaint as well.
Budd: Okay, thank you.
-: Thank you.
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-: Attorney Murphy.
-: Thank you, Chief Justice Budd, associates justices,
may it please the court.
My name is Marty Murphy, and with my partner Joan Lukey,
we represent Harvard and the two current employees
of Harvard Medical School, Mark Cicchetti and Tracey Fay,
who have been named in 4 of the 12 complaints
before the court.
We urge the court to affirm Judge Salinger's decision
dismissing all of the complaints against Harvard,
against Mr. Cicchetti and against Ms. Fay
because Judge Salinger correctly found
that none of the allegations in any of the 12 complaints
allege facts plausibly establishing that Harvard,
Cicchetti, or Fay, as distinct from Cedric Lodge,
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did anything that was not protected
by the immunity provision of the Anatomical Gift Act.
-: Could you address the argument?
Okay, he's the director of the morgue.
Murphy: His title was morgue manager, Your Honor.
-: Morgue manager.
And if you can't hold the morgue manager,
the only person in charge of this, responsible,
Harvard can never be held responsible.
I'm just trying to...
Their argument is that if the morgue manager always behaves
in a way that is not completely in Harvard's interest,
no one's gonna be held responsible for this.
I'm not sure I follow it,
but they're saying we don't need to go
through the vicarious liability analysis
when we're dealing with a person like the morgue manager.
-: I think, Your Honor, the easiest answer to that
is to point to a number of this court's cases
about vicarious liability.
Particularly, I think the easiest one to point to
is the Purity Supreme case where a store manager
of a supermarket sent everyone else home
and then sexually assaulted an employee of the store.
He did it on Purity Supreme's property.
He had the authority to send the person home.
But the question that the court asked,
and the question the court asked
in all of its vicarious liabilities is,
was this the kind of thing that the store manager
was hired to do?
Was he acting, at least in part,
to serve Purity Supreme's interests?
And in that case, the court said no
to both of those questions.
And that's the case with Cedric Lodge here.
Cedric Lodge, he had the title of morgue manager,
but there's no allegation,
no facts alleged in any of the complaints.
-: So a lot of what he does is clearly on Harvard's behalf,
but the part we're dealing with,
the criminal activity you say is not.
And I haven't reread the Purity Supreme case,
I take it the court just focused on the illegal conduct.
It didn't look at the person as a whole,
his level of control over other employees,
the fact that he was the manager, they didn't do that?
-: Well, it did, Your Honor, in the sense
that it noted that even though he had the authority
to send the other employees home,
the Purity Supreme could not be held vicariously liable
because he was not acting
to further Purity Supreme's interests.
-: Go ahead. -: I'm sorry, could you?
Thank you Justice Kafker.
Could you address on the 12b6 stage
the allegation of bad faith
that comes from the lax supervision
and the warning signs that should have alerted
the Harvard people that he was engaged in this behavior,
or at least should have prompted an investigation?
-: Sure, Your Honor, the plaintiffs in the Superior Court
essentially extracted all of the allegations
that they said rose to the level of bad faith.
And that's set out separately at I believe page 368
of the record appendant.
It's six pages.
It's all, we would suggest,
conclusory allegations without facts.
The closest they come, and they point out this
in their appeals brief, is an allegation,
which they say in their appeals brief
is that Lodge posted public photographs of himself
on Facebook dressed up as an undertaker.
I think if you look carefully at the complaint,
that was on his wife's Facebook page.
With respect to the license plate-
-: Yeah, we've got the license plate,
we've got him taking duffel bags in and out
and we've got his customers, so to speak,
coming in and out of the building.
What about that?
-: All of those allegations, Your Honor,
I would respectfully suggest
could make out a case for negligent supervision.
And to respond to Justice Kafker's point,
there are a number of the complaints
that allege that Harvard and Ms. Fay,
and Mr. Cicchetti negligently supervised Mr Lodge.
But negligence under the statute is not enough,
and under Carey is not enough to defeat good faith immunity.
So all of the allegations,
we say, amount at most to negligence
and certainly do not amount to the kind of bad faith
that Carey says, and the statute itself,
says is required to defeat good faith immunity
in this instance.
-: Although the Carey standard,
I'm just quoting it,
"Evidence of peculiarly pervasive non-compliance
"could warn an inference that a defendant
"acted maliciously," blankety blank,
"is the pervasive," I mean,
this is not the first time a morgue
has been subject to this kind of behavior, right?
We have the UCLA incident in the past,
you know, Harvard's on notice
that you've got to monitor this, right?
And then you've got, you know...
Do these two people, based on this complaint,
do we know whether they're his supervisors or not?
I mean, I just... -: Complaints that allege
that they do supervise.
-: They do supervise him.
And what about the security video? Somebody at Harvard?
And do we know whether this is after hours
or do we know anything about the security video
from the record about whether this is 10 o'clock at night
or you know, on a Saturday or anything like that?
Something that will alert us?
Murphy: No, Your Honor, there's nothing in the record
to that effect. -: Okay.
-: With respect to the statutory argument
that was addressed earlier,
I think it is clear, respectfully,
that both the history of the statute,
the text of the statute,
the case interpreting the statute,
and the overall purpose of the statute
make clear that this statute was designed
to govern the entire process from start to finish.
The statute, which was issued
by the Uniform Commission on State laws in 1968,
initially was said to replace what they described
as a confusing mixture of common law dating back
to the 17th century,
with some statutes that had been enacted over time.
-: I get the overall purpose.
Can I go back to their point?
So if an employee or a manager acts somewhat negligently,
the employer can be held responsible, right?
Like most of those cases,
we've got this nurse at a hospital asking
for the body to be used for transplants, right,
and whether she's going overboard.
Here, we've got someone...
The more excessive they are,
the less on the hook the employer is.
There's something bothersome about that.
I don't...
Again, Harvard could be held responsible
if he's doing something minor,
but Harvard is completely off the hook
if he's doing something egregious.
There's something bothersome about that,
I just can't get my arms around it.
-: And I would respectfully challenge the first part
of the court's assumption.
-: Okay, go ahead. -: I think Harvard,
if the employee acts negligently
under the immunity statute, Harvard cannot be held liable
if it only rises to the level of negligence.
In the Perry case-
-: I get that part. -: Yep.
-: But again, the example of the nurse case,
one of them, right, they're holding
a hospital responsible because she's gone too far.
-: So in the Perry case, I think the court
may be thinking of, and that's the case that the SJC
and Carey cites for this pervasive noncompliance point.
In Perry, the nurse knew that the procedure
that was at issue there, which was I think a removal of eyes
and corneas for eye transplants,
knew that it was going to be an invasive procedure.
She was acting within the scope of a responsibility
by talking with the family about donation.
But even though she knew
that it was an invasive procedure,
she falsely told the folks who she was dealing with,
the family of the person who was dying,
that it was not, it was a minimally invasive procedure.
So there you have intentional conduct, bad faith conduct,
knowing that. -: And you have
vicarious liability there.
-: And vicarious liability
because she's doing exactly what the hospital
and the organ donation organization caused her to do.
The irony, if the court is suggesting there is one,
is I think part of what is embedded
in the 100 year long principle
of respondeat superior vicarious viability law
in Massachusetts.
In this court's relatively recent decision
in Berry versus. Commerce Insurance Company,
that was the case involving a firearms instructor
who drove his car at a high rate of speed
and tried to spin it toward others, other police officers,
and ended up actually causing serious injury.
This court noted that under the restatement principles,
the farther a field, the more outrageous
a individual's act is, the less likely it is
to be viewed within the scope of employment.
-: I get that, but does this act we're dealing with here,
by letting the employer off the hook completely,
run into sort of conflicting with the intentions
of the legislature when they did this.
That's what I worry about
is that if the only person you can hold responsible
is gonna be this probably, you know,
judgment proof defendant, is this gonna produce the result
the legislature wanted, which is people willing to give
their deceased relatives bodies to science
because they're not gonna have the comfort,
I think this is what Mr. Catalano was saying,
that those bodies will be protected
all the way through the process.
How do we reassure
that's what the legislature intended here?
-: I think, Your Honor, the legislature intended two things,
and I think it's made clear in Carey
and made clear in the initial enabling language.
They intended not only to encourage
a giving of anatomical gifts,
but they intended to clear the way
for institutions to receive anatomical gifts.
-: I get all of that,
and that's why I think you're probably right
on the first part.
But what I don't get is how, when it gets so egregious,
you can't hold anyone responsible except for, you know,
this one judgment proof type actor.
That what gnaws at me.
I don't know if there's no way to round it,
but it does seem problematic at the end of the day
that the institution that got the body and benefited from it
and furthered science is not responsible
for the actions of its manager.
-: I would say, Your Honor, that in any case,
whether it's a judicially created immunity
like judicial immunity or immunity applies to examiners
in SDP cases, or its statutory immunity,
the grant of immunity that either the legislature
or the judicial doctrine creates, always raises the bar
and makes it harder,
sometimes impossible for a plaintiff to recover.
But that reflects a legislative judgment
balancing the importance of protecting the rights
of plaintiffs to recover against,
on the other hand, the important interests
that are protected by clearing the way
and making, in the language of the initial drafters
of the act, allowing institutions
like Harvard Medical School
to accept these donations
without even the, quote, fear of legal proceedings.
So I think that's really how I would answer
the court's question.
I think, Your Honor, the language in Carey
that Mr. Catalano pointed to about violations
may be worth noting briefly here.
In the Carey case, the court used a number
of different formulations to take account
of whether or not the Uniform Anatomical Gift Act
addressed what was going on here.
They said, does the Anatomical Gift Act authorize something?
Was there a technical violation?
Was there a technical violation of a requirement?
Was there simply a violation of a requirement?
Did the conduct adhere to the Anatomical Gift Act?
And I think if the court looks at what is alleged here,
we've cited a number of provisions
that make clear that this was designed
to govern the entire process from the beginning to the end.
11a1, which authorizes medical schools
to accept donations for research or education,
here, clearly the uses were not limited
to those purposes if the allegations
of the complaint are taken as true.
Similarly with respect to the language in section 14h
that was discussed earlier,
it covers the actions after donation.
And we point the court to the Scarborough case
in which the plaintiffs alleged,
similar to the plaintiffs here,
that the immunity statute didn't attach
to acts after the transactional aspects of the gift.
In Scarborough, which is a case
from the Court of Appeals in Maryland,
which is really the only other case
addressing the issue directly,
the court rejected that claim here,
really for the same reasons that we've argued.
And I think in the brief time I have here,
I think with respect to that question
of whether the language in 14h,
whether Section 14 applies to medical schools at all,
the title is organ donation procurement organizations
and others, and there are specific sections
that address organ organizations: 14a, 14b, 14c, 14g.
But there are others that are addressed broadly to persons.
And those provisions include references to,
by definition under the statute to Harvard Medical School.
And the specific language that we cite in 14h
is directly addressing the donation of whole bodies.
We respectfully request
that the court affirm Judge Salinger's decision.