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Law

Grave debate

After-death disagreements spread to court

Photos courtesy Thomas Lynch and Lisa Carlson
Thomas Lynch is a writer and funeral director.
Lisa Carlson is an author and consumer advocate.
MT Photo: Bruce Griffin
Wendy Lyons.
Photos courtesy Herb Gunn.
Jeanie Wylie-Kellerman's memorial service at her Detroit home.
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WDET interviews Sandra Svoboda about this story. (MP3)
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Published 1/21/2009

Thomas Lynch and Lisa Carlson have a lot in common.

Both are published authors, are popular among their peers and have public followings. Both are widely quoted "experts" in their field. Both seem to view their work as a calling as well as a profession. Both eloquently, rationally and convincingly address issues related to death, hoping to reach an American public that is often in denial, reluctant or ill-informed regarding end-of-life arrangements.

But Carlson, a watchdog of the funeral industry, and Lynch, a Milford funeral director whose family owns six funeral homes in southeast Michigan, have publicly disagreed for more than a decade, often discussing and debating their points of view in the media and at conferences. They know each other. They read each other's work. They disagree over numerous points, from the meaning of death to what ceremony and customs should accompany it. But, mainly, they clash over the extent to which the law should dictate the role of funeral directors play.

Now their dispute has moved into the courtroom.

Lynch is suing Carlson for libel and is asking a federal judge to stop her from using his name or likeness in her writings.

The lawsuit represents two sides of an ongoing conflict. In one camp are the funeral directors, embalmers, crematories and other professionals, such as Lynch, who earn their livings from selling death-related services. Opposing them are consumer advocates, such as Carlson, who persist in efforts to ensure that customers are protected from predatory undertakers and that they know their options when dealing with the death of family and friends. Those options might include taking care of a body at home without professional funeral directors.

Neither Lynch nor Carlson, following their lawyers' advice, would discuss specifics of the suit. But both talked about their work and their views about the business of death.


Lynch, as a small-town
Michigan funeral director, promotes, defends and protects the industry that provides services related to — and profits from — death and its trappings. He's a published poet who has also written for The New York Times. He also wrote a critically acclaimed nonfiction book called The Undertaking: Life Studies From the Dismal Trade, which PBS' Frontline used as the basis for an award-winning documentary broadcast in 2007. The Undertaking is a collection of essays about his life, his work and death.

By appointment of the governor, he's a member of the Michigan mortuary science board, the panel that oversees the practice of the state's roughly 2,140 mortuary science licensees and 754 funeral homes. Lynch & Sons Funeral Directors Inc. operates six funeral homes in southeast Michigan — most of Lynch's siblings and children are involved in the business that his father started 60 years ago.

Lynch has worked with the Michigan Funeral Directors Association's consumer rights committee, but split with the trade group a few years ago after he disagreed with their support of proposed state regulations that would have relaxed licensure requirements, he says. He supports accountability for the profession, saying it increases the quality of services customers get. In support of that opinion, he speaks out against preplanning and prepaying for funeral arrangements, saying the survivors, the people who live with the services, should be the ones making decisions about them.

The 60-year-old Lynch skillfully plays the role of the small-town healer, the trusted pillar who's there to offer support during one of life's most difficult times. He stresses that he's never believed much in marketing his services to the customers who will eventually need them.

"When it's necessary, they want someone they trust to administer whatever the needs are," he says in a phone interview. "If you're asking me, 'Is my job to get them to spend something on something they don't want or something they don't need?' just ask yourself how long I could stay in business doing that in a town of 15,000 locals."

Carlson, meanwhile, is affiliated with two national nonprofit organizations — the Funeral Ethics Organization, which she founded nearly five years ago, and the Funeral Consumers Alliance, where she was a board member and then executive director for seven years. Both organizations are based in Vermont and work for consumer protection and public education for funeral customers.

Carlson, a former special education teacher, became interested in funeral laws nearly 25 years ago, after her husband committed suicide. Unable to find much information regarding how she could legally care for his body at home, she began the research that would eventually result in her 1988 book, Caring for the Dead: Your Final Act of Love.

It's a primer on federal and state laws regarding funerals, and a guide to planning after-death arrangements, with or without a funeral director. In 2001 she published I Died Laughing: Funeral Education with a Light Touch, a collection of humor related to her work.

Carlson, 70, also publicly speaks about families caring for their dead and home burial, which is sometimes likened to self-written wedding vows and home births. Such options aren't for everyone, Carlson says, but people should know they're available. Her efforts to educate the public about how to bypass the funeral industry have earned her attention from the likes of Dear Abby, Phil Donahue, NPR and national news magazines, most of which she's welcomed. She also speaks and writes about "green burial," where bodies are not chemically preserved and are buried in biodegradable containers or shrouds.

"I've been a teacher in one way or another all my life and, indeed, the funeral education things I'm doing are just another form of teaching," she says. "My book gave ... people who wanted a low-cost exit, in areas where they couldn't find a cooperating funeral home, it gave them the information to bypass the industry entirely."

In 2004, Carlson was also part of a PBS documentary, this one about families who care for their dead. Producer Elizabeth Westrate had originally set out to do a film about strange things people do with ashes, like jetting them into space. Then she stumbled across a website for a "death midwife" who helped families care for their own dead.

"I was admittedly very unnerved. I thought, 'Why on earth would anybody want to do this?'" Westrate says. But as she dug into the subject, she met families who were healed through the after-death care as they did it themselves.

"It was extremely simple and beautiful. I was surprised by that. I thought you'd need more medical knowledge and technology. I didn't see anything in the making of the film that was upsetting or scary or gross. I thought it was really wonderful," Westrate says.


After the documentary
about Lynch aired in 2007, Carlson wrote and commented about the program in publications of the Funeral Ethics Organization and Funeral Consumers Alliance.

In September, Lynch filed his lawsuit in U.S. District Court in Detroit claiming her statements were defamatory and suing Carlson, the Funeral Ethics Organization and two other nonprofits, Funeral Consumers Alliance Inc. and Funeral Consumers Alliance of Idaho.

Lynch claims the newsletter articles and websites published and maintained by Carlson and the organizations have accused him of "unethical and untrue positions on the topic of after-life care and funeral options." For example, the suit identifies a comment Carlson made in the Idaho affiliate's newsletter after observing how Lynch and his sons were depicted in the film: "In the program, the Lynches appear to have ignored the Rule, breaking the law in their dealings with at least three families."

"The Rule" refers to Federal Trade Commission rules for funeral directors that prescribe how they present and discuss their services with customers. They must allow purchase of individual goods and services and must provide a price list.

In Lynch's case, according to his company's website, the range of goods and services includes caskets priced as high as $7,900, moderately priced receptacles like $195 urns, a complete funeral service for $5,250 and embalming for $550.

In a Funeral Ethics Organization newsletter published and distributed in 2008, an article stated, "The Lynches have been vocal against families caring for their own dead," which Lynch, in his suit, claims is untrue.

Lynch told Metro Times that he has overseen visitations held in people's homes and will work with people to accommodate their wishes within state law. His price list includes a home wake but it includes embalming, which must be done by a funeral director.

"We'll do as much or as little as folks want. What I won't do, and I think this is the source of some of the curiosity, is basically abandon the state's interest — in so far as I'm concerned — in the disposition of the dead," he says. "If someone calls me, then I have to abide by the law, which means I have to sign a death certificate, I have to oversee the disposition of the dead, the burial, the cremation or the removal. I'm accountable to the state for that as well as the family."

Lynch claims in the suit that he has suffered "humiliation, mortification, and embarrassment, both individually and professionally" as well as business losses, loss of goodwill, harm to business reputation and loss of esteem and standing in the community and the industry.

He's seeking more than $75,000 in damages and legal fees, according to the suit, and has asked that Carlson and the organizations be ordered to publish retractions, be restrained from "the consistent and continuous harassment of Thomas Lynch, his family, and his family business," and be prevented from using his name or likeness in any future publications.

The case is assigned to Judge Robert Cleland, and a trial is scheduled for September or October.

Attorney William Burdett, of Grosse Pointe Park, is representing the Funeral Ethics Organization pro bono. He says the longtime Lynch-Carlson disagreement is part of a healthy and active debate about options for caring for the dead. With the lawsuit, Burdett says, Lynch is trying to challenge Carlson's and others' right to criticize his opinions.

"This is simply a case where he doesn't like the fact that some people disagree with the positions that he has. Disagreement is one of the cornerstones of the First Amendment, that we're allowed to express our opinions about people, especially our disagreement with publicly available opinions," Burdett says. "I'm a First Amendment attorney. I'm here to protect her speech."

In his response to the complaint, Burdett says the statements Lynch identifies in his suit are not defamatory and in some cases are true, the absolute defense in a libel claim. He also says Lynch has not shown damage from the remarks.

As the attorney for the Michigan Press Association, Dawn Phillips Hertz has been involved in hundreds of libel cases during the last 25 years, defending newspapers from claims like Lynch's. In her opinion, it will be "difficult" for Lynch to win. He will likely need to show that Carlson and the organizations knew her statements were false when she made them and they published them or they recklessly disregarded the truth, if he is to prevail in the case.

"It's a very difficult case to win. The burden of proof for a plaintiff who's a public figure like Thomas Lynch is that he's got to prove she did not believe what she said," Hertz says. "The defendants are sincere in their criticism of him. Absent some bombshell in discovery, I don't see how he'll prevail."

Carlson's supporters in Michigan and around the country are angry.

Joshua Slocum, the executive director of the Funeral Consumers Alliance, has called the suit "outrageous."

Gere Fulton calls the Lynch lawsuit "blowback." For more than 35 years, Fulton has studied the funeral industry, first as a University of Toledo faculty member and department chair in health education from 1971 to 2000, and now as a professor of internal medicine at the University of South Carolina. A former president of the Funeral Consumers Alliance, he's watched the funeral services industry change. In the 1970s, hospice began its growth, and people started thinking in advance about end-of-life issues. The consumer-rights movement flourished in the 1980s with groups like the Funeral Consumers Alliance. Now the baby boomer generation is changing modern American funeral traditions with ideas like at-home funerals, families caring for their own dead and green burial.

"These are people who have historically questioned authority and have asked, 'Do we need to always keep doing things the same way?' There's an awful lot that people find in a 'nontraditional' funeral that just seems more meaningful," says Fulton, who has a doctorate in public health and a law degree.

The Lynch lawsuit, he says, represents an effort by the funeral directors to protect their turf: "I think they feel threatened. I think their livelihood is certainly being threatened, particularly during an economic downtown like we're going through now. People are thinking, 'Do I really have $8,000 to spend on this end-of-life ritual?'" Fulton says.


Philip Douma, executive director
of the Michigan Funeral Directors Association, says "threatened" isn't the right word for how the industry is reacting to its current environment, especially as aging baby boomers consider their own deaths and seek a greater influence in their arrangements. "I think it's certainly the case that the baby boomer generation in general seeks greater control over everything. Funeral services should not be immune from that, but, at the same time, the consideration of having families have varying degrees of involvement with the funeral process and the final disposition process also has a long history."

As for the cost of funeral services, Douma says a range of prices are available and some families want expensive options. "Like any other professional service, it is largely dependent on the value that the consumer places on it," he says. "A family might choose more involved services that may be more expensive. That demonstrates that those services have a greater value to that family."

Across the state, an average of about 86,000 people have died during each year since 2000. All those deaths are accompanied by the needs of the living. Along with grieving, sorrow and a sense of loss — which are addressed ceremonially for some with wakes, visitations, funeral and memorial services, burial and other remembrances — deaths also bring harsh practical and legal needs: removal of the body, transport of the body for burial, cremation or donation to a medical school and the filing of death certificates.
In the United States, nearly 22,000 funeral homes generate about $11 billion in annual revenue, according to the National Funeral Directors Association.

In Michigan, the state funeral directors association has 1,300 members who paid more than $530,000 in dues and assessments in 2007, according to annual federal reports nonprofit organizations file with the IRS. The Michigan Campaign Finance Network ranked the state association's political action committee — lobby arm — as 95th in spending in the state's top 150 during the 2008 election cycle as of the end of October.

In the past few years, the funeral industry has had legislative successes in Michigan that ensure its involvement in — and profit from — all deaths in the state. A 2003 law added the requirement that a licensed funeral director certify all death records along with a physician. A 2006 law requires any handling of a body be under the supervision of a funeral director. Michigan and Utah are the only states that require this.

"The end result is that the funeral industry has totally entrenched themselves into every single funeral in this state," says Wendy Lyons, 45, president of the Michigan-based Funeral Consumers Information Society, an affiliate of the Funeral Consumers Alliance.

As an Oakland University student four years ago, Lyons was finishing a bachelor's degree — her college education interrupted by raising children — and needed a topic for her composition class. She remembered an intriguing magazine article she'd read years earlier about families caring for their dead instead of contracting with funeral homes. As she researched topics, she learned about the Michigan Consumers Information Society and the group's work in public education, lobbying and consumer protection.

"At that time I was more focused on families caring for the dead, but as I got involved, I saw there was a need," Lyons says. "We provide free information to the public and we're supported by members who believe it's important to have a resource that they can go to who doesn't sell funerals."

In the last two years, as president, she's spoken at libraries and churches, reaching hundreds of people. She sees "control" of the dead as a civil rights issue for families.

"In Michigan, because of our laws, [the funeral directors] have way more control than they really should have. The laws should be there to protect the public, not the industry," she says.

Among her "wish list" for the Michigan Legislature would be:

• Repeal the 2006 law mandating that the handling and disposition of a body "shall be under the supervision of a person licensed to practice mortuary science in this state."

• Repeal the 2003 law that required the signature of a licensed funeral director on a death certificate.

• Enact a law protecting the rights of families and faith communities to care for their dead without assistance from a funeral director.

• Change the requirement that a body must be embalmed if it isn't buried or cremated within 48 hours to 96 hours, or allow refrigeration or dry-ice cooling as an alternative. Lyons says the chemicals involved are potentially dangerous and the procedure is brutal on the body. Requiring it for most deaths in Michigan with the 48-hour rule puts an unnecessary financial burden on families, she says.

All these proposed changes, Lyons says, would enable families to better care for their dead.

The funeral industry sees it differently. Douma says the laws reflect what Michigan citizens want, as enacted by their elected officials. "They want to be assured that all human remains in the state receive a proper and respectful final disposition. To assure that, the class of professionals, funeral directors, are given that responsibility. That's the policy principal underlying those requirements," he says.

"Who do our dead belong to?"Lyons asks. "The industry? Or the family? Where people in the industry might have a problem with it, my point of view is, 'Whose decision is it? Is it the family's decision to make to care for their dead or is it the industry's decision?' For me it's a civil rights issue, basically. I think funeral directors perform a good service; it's a service that most people want. But it should be optional."

For Detroit pastor Bill Wylie-Kellerman, it was an option he and his dying wife never considered.


Diagnosed with a brain tumor
in 1998, Jeanie Wylie-Kellerman, a writer and social activist, survived nearly eight years when the normal expectancy for her condition would have been six months. She used alternative treatments that her husband says gave them freedom from some mainstream conventions, letting her keep her individuality and personalize her treatment in ways that mainstream medicine sometimes doesn't allow.

In October 2005, she decided no more surgeries and no more chemotherapy and she went home. "We kind of stopped and said we're not doing any more treatment. We're going to die right," says Bill Wylie-Kellerman, pastor at St. Peter's Episcopal Church in Corktown. "We had a strong hand in dealing with her illness that was kind of the same thing when we said, 'OK, she's dying.'"

Before her final days, Jeanie Wylie-Kellerman's family, friends and neighbors approached her impending death as a team and a community. "She was very much a part of that. In a way, it was her leading the way," her husband says. People came to the Wylie-Kellerman home in southwest Detroit for regular prayer times and helped re-arrange the furniture to make it easier for her to maneuver. What wasn't said, according to her husband, was that it would also make it easier to move her body from her upstairs bedroom to the first floor for a viewing.

After Jeanie died on New Year's Eve, 2005, her body remained in her home for three days. Her husband's daughters weren't home when she passed, but did return soon and were able to touch her body when it was still warm. "They just fell on her and wept. Their tears fell on her. They were sort of wailing for everybody, and they'd have never had that catharsis if the body had been removed," Wylie-Kellerman says. "If we'd been working with a funeral home, they'd have come very quickly and the body would have been removed. ... I think the commercial dimension of the industry can be pastorally destructive."

A team of women washed and dressed Jeanie's body, which remained at her home for three days of prayers, remembrances and music. The casket made by friends had a section for dry ice to stall decomposition. Wylie-Kellerman eventually took her body in the casket to a crematory and pushed it into the furnace.

"I was able to feel it really deeply. I was able to push the casket in and let her go. I didn't want the opportunity to be cut off from that. I think the detachment is commercially organized. This is the opposite of detachment. This is engagement," he says. "I think it's the way it ought to be, and we're not that far from the way things have been. People remember how to do this. The commercial interest is only in the last generation."

He hasn't discussed his own eventual death and arrangements with his daughters. "In a way, at this point, I trust them. I think they know how to do this. I think if I were to get hit by a bus, it wouldn't get out of their hands," he says. "I think they do know what kind of service I'd like. I trust them."


On that point, Lynch
would agree with Wylie-Kellerman: the arrangements should be made by the survivors. "I do feel that people who have to live with the decisions about funeral arrangements ought to make them," he says.

But in making those arrangements, tastes have changed in the last few decades, replacing or supplementing religious services with more personal touches. Lynch has included doves and bagpipers in ceremonies at customers' requests and held one service in a barn-garage in a more rural area of Oakland County.

"I think people feel a little more ritually adrift than they did in 1974 and ethnically adrift. The ties that used to bind people to communities and procedural norms have loosened a lot," he says. "Everybody does some things differently now. They used to be sort of set by the religious authorities or whoever the authorities were who managed the customs in a particular community. That's not so much the case anymore because people sort of travel light religiously and community wise so they can do their own thing."

Lynch says he's worked with fewer than 10 families who wanted a home funeral in his 35 years in the business. "The house at the corner of Liberty and First Street in Milford is for many people the home for funerals," he says, referring to his funeral home's location. "It's the one where the parking is a little better. Somebody else cleans up after everybody leaves that night. They don't have to worry about cleaning the bathrooms and the rest of it," he says.

"The difference between a funeral in somebody's home and a funeral in this funeral home is, for many people in this community, not a big stretch."

Lynch does have more requests for cremations than he did when he started as a funeral director in 1974.

He won't "categorize everybody's different motives" but says cremation makes the remains "more manageable, more divisible, more portable and less grounded." He finds it curious that so many people attend burials but not cremations, and he'd like to improve the aesthetics of crematories.

"If you go to a burial you're surrounded by the beautiful God's little acre full of commemorative bufferings, but if you cremate in Michigan, mostly you're going to an industrial site," he says. "I do think the people who cremate should have the same sort of access and convenience and commemorative venue as the people who bury."

Lynch's eloquence in speaking about funerals and related issues earn him attention. Sometimes it comes from media, interested in his views. Other times it comes from readers and viewers who buy his books and watch the Frontline film, available online.

But it has also come from critics like Carlson and Lyons who believe customers of funerals should be able to get information from a source that doesn't profit from funerals. Carlson, on the advice of her attorney, won't comment on the lawsuit. But Lyons says it amounts to an effort by Lynch to further control and limit any debate that could hurt his bottom line and that of the industry in which he is the best-known public figure.

"I find it contemptible that Thomas Lynch is suing the nation's only nonprofit organization dedicated to informing the public about their rights as funeral consumers, especially when the organization being sued is funded by donations from people who believe it's important to have a place where they can get information from people who don't actually sell funerals," she says. "Is Thomas Lynch trying to silence FCA, its affiliates and Lisa Carlson once and for all?"

Barring a settlement, Lynch and Carlson will meet in court this year. Until then, both will continue working, writing and speaking about death, raising awareness of issues the American public isn't always apt to confront, says Virginia Hill Rice, professor of nursing at Wayne State University. If people hear of either Lynch, Carlson or the lawsuit, it could improve conversations about a difficult topic.

"I think the more they talk about it, the more comfortable they are with it. We're all going to reach it," Rice says. "It's still the unknown."

Sandra Svoboda is a Metro Times staff writer. Contact her at 313-202-8015 or ssvoboda@metrotimes.com.

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