A lawsuit against a Pembroke Pines funeral home that lost remains of a miscarried baby floundered at the Fourth District Court of Appeal, which found that although the case was "troubling and heartrending," it didn't have what it takes to proceed.

The case demonstrates the limits of Florida personal injury law, which under most circumstances doesn't provide an avenue for damages without a physical injury.

Deon Williams and Evan Chang sued Boyd-Panciera Family Funeral Care Inc. in Pembroke Pines for negligence and egregious misconduct in 2016. They sought damages for emotional distress, after employees deviated from protocol and lost track of stillborn baby Grace's cremated body.

But the plaintiffs suffered no physical impact that would support their complaint.

The Fourth DCA acknowledged the plaintiffs' ordeal, but found the defendant's conduct wasn't egregious enough to warrant an exception under Florida's impact rule, which allows suits with evidence of outrageous conduct.

The appellate panel turned to the Florida Supreme Court for guidance—specifically to 1995 case Gonzalez v. Metropolitan Dade County Public Health Trust, which involved allegations against a funeral home after a baby's body was found in a refrigerated drawer two months after parents held a funeral and burial.

In that case, the state court declined to step away from the impact rule, finding "[T]he consequences [would be] too far reaching in a modern society, where it is recognized that not all wrongs can be compensated through litigation or the courts," according to the Fourth DCA's ruling.

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Attorney fees for funeral home

Attorney David H. Charlip of Charlip Law Group in Miami, represented the parents at trial. He said he's "dismayed and perplexed" by the ruling, which he worries could have "unintended consequences" for emotional distress claims.

"I can't imagine a situation that was more outrageous than this. If a funeral home can mishandle remains or cremains in a manner worse than was done here, I don't know how, so effectively I don't know anyone could ever recover from a funeral home after this again," Charlip said. "This case is going to radically change the funeral service industry if this opinion is left to stand as it is."

Charlip claims the defendant sent his clients a letter with an apology and a refund, without speaking to them about what happened, then gave conflicting information to the young couple, for whom this was their first child.

"They had checks and balances in place to make sure nothing like this ever happened, and essentially nothing was followed," Charlip said.

In affirming Broward Circuit Judge Sandra Perlman's dismissal, the appellate panel also awarded attorney fees for the defendants.

"I think that to say, 'It adds insult to injury' would be putting it mildly," Charilp said.

A similar South Florida suit came to a different conclusion in 2019, when parents reached a $1 million settlement with a funeral home after it mixed up the bodies of two stillborn babies. But in that case, the defendant allegedly tried to cover up what had happened.

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Related story: 'The Funeral Home Lost Jarvis' Body': $1M Settlement After Babies Placed in Wrong Coffin

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'A tragic, horrible mistake'

Defense attorney Mark D. Tinker of Cole, Scott & Kissane in Tampa said the funeral home did everything it could to find the remains, including hiring an outside independent investigator, interviewing employees and even donating to a fund to help the family establish closure.

"It was obviously a tragic, horrible mistake. But it was just that, it was a mistake. Because of the nature of what they were doing, the effect it has can be upsetting and horrible, but at the end of the day it's just a mistake," Tinker said. "But the one and only thing they could not do was obviously what the parents wanted—to find the ashes—because nobody knows what happened to them."

Fourth DCA Judge Cory J. Ciklin wrote the ruling, with Judges Carole Y. Taylor and Jeffrey T. Kuntz concurring.

Charlip said he'll ask the court to reconsider via a request for an en banc review.

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