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SANTA FE, N.M. (AP) - A family can't bring damage claims in New Mexico against an out-of-state funeral home that placed a relative's brain in a casket with an embalmed body shipped to New Mexico, the state Court of Appeals ruled Wednesday.
The New Mexico family, whose identity isn't revealed in the lawsuit, discovered the brain after smelling a "foul odor" a day after a New Mexico funeral home gave it to them in a bag containing the personal effects of a woman killed in a 2009 automobile accident in Utah.
The Appeals Court, in a 2-1 ruling, said that SereniCare Funeral Home in Draper, Utah, didn't have enough contact with New Mexico for it to be sued in this state. The family has filed a separate lawsuit in Utah.
A lawyer for the family, Richard Valle, said the ruling likely will be appealed to the state Supreme Court. He said the family will move ahead with the Utah lawsuit if the New Mexico case is blocked.
DeVargas Funeral Home in Espanola, a community in northern New Mexico, arranged with an Ohio company to ship the woman's body back to New Mexico. The Ohio company had the Utah funeral home prepare the body for shipping.
The owner of the Utah funeral home has said it followed a typical industry practice of shipping the brain inside a bag rather than trying to reinsert it into a damaged head. He has said the funeral home didn't place the brain and the personal effects in a single bag.
The brain was later buried with the woman's body.
Valle said separate damage claims are heading to trial in New Mexico against the Espanola funeral home and the shipping company, Inman Shipping Worldwide.
Judge Tim Garcia said in a dissenting opinion that the lawsuit against SereniCare should be allowed in New Mexico.
"Burial services are a once in a lifetime event for every person. When SereniCare knowingly participates in the burial services for an out-of-state family located in a nonresident forum, then New Mexico should recognize that SereniCare is accepting the benefits and protections of our laws when the ultimate burial occurs in this state," Garcia wrote.