Possible Tort Liability for Harvard in Donated Cadaver Parts Theft Case

A short excerpt from yesterday's long Massachusetts high court decision in Weiss v. President & Fellows of Harvard College, written by Justice Scott Kafker:

In a macabre scheme spanning several years, Cedric Lodge, the person responsible for the care of cadavers at the Harvard Medical School morgue, dissected, stole, and sold parts of the bodies of individuals who donated their remains for research purposes….

Decedents' relatives sued Harvard, and the court concluded that the case could go forward, despite "the 'good faith' defense under the Uniform Anatomical Gift Act (UAGA …)":

As outlined in [a criminal] indictment, Lodge stole dissected portions of donated cadavers, including heads, brains, skin, bones, and other human remains, and transported them to his home in New Hampshire. From there, Lodge and his wife sold the stolen body parts to buyers, including the two alleged coconspirators, with whom they communicated via social media websites and cell phones.

Lodge also allowed third parties unauthorized access to the morgue in order to select body parts for purchase. For example, alleged coconspirator Katrina Maclean {the proprietor of "Kat's Creepy Creations"} agreed to meet Lodge at the Harvard morgue at 1 p.m. on Wednesday, October 28, 2020, to purchase two dissected faces for $600. Lodge also assisted Maclean with finding human skin to provide to a third party in exchange for his services tanning other human skin into leather. Coconspirator Joshua Taylor sent thirty-nine electronic payments, totaling over $37,000, to a PayPal account operated by Lodge's wife, including a $1,000 transaction with the memo "head number 7" and a $200 transaction with the memo "braiiiiiins."

While employed by Harvard during the period in which he was dissecting, removing, and selling donated body parts for profit, Lodge commuted to work in a car with a license plate that stated, "Grim-R." …

[Section] 18 (a) [of the UAGA] specifies that "[a] person [including a corporation] who acts in accordance with [the UAGA] … or who attempts in good faith to do so, shall not be liable." …

[W]e [have] defined "good faith" as "an honest belief, the absence of malice, or the absence of a design to defraud or to seek an unconscionable advantage over another." We further explained that "it may be possible that evidence of a peculiarly pervasive noncompliance [with the act] could warrant an inference that a defendant acted maliciously, possessed a design to defraud or to seek an unconscionable advantage over the plaintiffs, or acted out of something other than an honest belief" and thus failed to act in good faith. We conclude that the plaintiffs' factual allegations rise to this level and therefore warrant an inference that Harvard failed to act in good faith.

We reach this conclusion for several reasons. First, the facts alleged constitute "peculiarly pervasive noncompliance" with the act. Instead of the dignified treatment and disposal of human remains required by the act, the donors' remains were ghoulishly dismembered and sold for profit under the most horrifying of circumstances…. "[T]here is 'a special sensitivity' required in the processing and handling of a deceased human body" …. "There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead; a duty, and we may also say a right, to protect from violation" …. This horrific and undignified treatment continued for years and involved numerous donors.

Although we focus our inquiry on Harvard's conduct, Lodge's misdeeds are relevant insofar as they demonstrate where Harvard failed to act in good faith in operating and overseeing the morgue. Despite the risk of harm being known to Harvard, as similar misconduct had previously occurred in a strikingly similar fashion in another medical school morgue [at UCLA], there were little to no controls in place to prevent this harm from occurring at Harvard. Instead, according to the allegations, an unsupervised Lodge was able to dismember the donated bodies; bring unauthorized people into the morgue to inspect and purchase body parts, including during working hours; and carry body parts out of the morgue for years.

Other red flags, such as his license plate describing himself as the "Grim-R[eaper]," which revealed an unprofessional insensitivity given his position in a medical school morgue, were also ignored or tolerated.  Thus, Harvard's extraordinary failure to adequately supervise the morgue's operations and properly protect the donated remains in its care exemplifies the kind of "peculiarly pervasive noncompliance" we have said can demonstrate a lack of good faith…. We emphasize that "peculiarly pervasive noncompliance" is different in kind and not just degree from isolated acts of noncompliance, which alone are insufficient to defeat a good faith defense under the act….

Jeffrey N. Catalano, Kathryn E. Barnett, Jonathan D. Sweet, Leo V. Boyle & Chelsea Bishop represent plaintiffs.