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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2006-900 PETITION OF BAYVIEW CREMATORY, LLC & a. Argued: June 14, 2007 Opinion Issued: August 8, 2007 Wiggin & Nourie, of Manchester (Doreen Connor and Mary Ann Dempsey on the joint brief) for petitioners Derek Wallace, Hart Wallace Funeral Home and Simplicity Funeral Home. Hoefel, Phoenix & Gormley, of Portsmouth (Lawrence Gormley on the joint brief) for petitioners Linda Stokes, individually and as trustee of the Dekes Realty Trust, and Larry Stokes. Getman, Stacey, Schulthess & Steere, PA, of Bedford (Andrew R. Schulman and Dona Feeney on the joint brief, and Mr. Schulman orally) for petitioner Bayview Crematory, LLC. David H. Charlip, of Hollywood, Florida, by brief and orally, and Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Christopher E. Grant on the brief), for the respondents.

GALWAY, J. The petitioners filed a petition for original jurisdiction pursuant to Supreme Court Rule 11 after the Superior Court (Morrill J.) denied their request for an interlocutory appeal of its order certifying as a class action the lawsuit of the respondents, who are clients of funeral homes that contracted with petitioner Bayview Crematory (Bayview). We reverse the class certification order. The record supports the following. Petitioner Derek Wallace was the owner and operator of Bayview. He was also the funeral director at petitioner Hart Wallace Funeral Home and the owner and operator of petitioner Simplicity Funeral Home. Decedents interred at Hart Wallace Funeral Home were transported to Bayview for cremation. Bayview also provided cremation services to five other funeral homes and crematoria that are defendants in the underlying litigation. The respondents, who are the plaintiffs in the underlying litigation, brought suit against the petitioners and other funeral homes that contracted with Bayview, asserting, inter alia, negligence and negligent infliction of emotional distress (NIED). Under the negligence claims, the respondents alleged that the petitioners, along with other funeral homes and funeral directors, breached their duties to ensure that the cremations at Bayview were authorized by the State and performed in accordance with the standard of care for a crematorium, resulting in emotional suffering, stigma damages, and other injuries. Under the NIED claim, the respondents alleged that the defendants' negligent handling of bodies of decedents caused the respondents to know, suspect or believe that the remains of a deceased loved one had not been properly cremated. The respondents later moved for class certification, alleging that "it is believed that there are hundreds of putative Class Members whose next-of-kin or loved ones were cremated at the Bayview Crematory as the result of funeral directing services performed by one of the Funeral Home Defendants." This motion requested that the court certify six subclasses, with each subclass containing all New Hampshire residents who contracted with one of the defendant funeral homes and whose decedent was cremated at Bayview. The motion provided additional factual allegations regarding the petitioners' conduct: Bayview used the services of medical examiners who were not licensed to practice medicine in New Hampshire. Bayview was never certified by the New Hampshire Department of Health and Human Services. Many of the documents used in the day-to-day operations of Bayview were forged, including authorizations to perform cremations, medical examiner cremation certificates, and a death certificate. A body was left decomposing in an inoperative refrigerator. "Multiple bodies" were placed in retorts and cremated simultaneously. Metal tags used to identify bodies were placed in the

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decedents' files rather than affixed to their bodies. Cremations were performed for which the next of kin had signed an authorization form for another crematorium. These allegations, the respondents argued, supported emotional distress claims of all next of kin whose decedents were cremated at Bayview. Because there is no method for determining whether the remains received by the respondents were of their respective decedents, the improper procedures and certifications at Bayview caused the respondents severe emotional distress. The respondents also argued that the funeral homes are vicariously liable for Bayview's breaches of the standard of care for a crematory. The trial court ruled that "certain negligence issues are appropriate for class treatment." Specifically, these issues were: (1) the nature and duration of Defendant Bayview's alleged mishandling of human remains; (2) the standard of care in the funeral industry

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