Karen Waeschle v. Ljubisa Dragovic

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0286a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KAREN WAESCHLE, individually and on

Plaintiff-Appellee, --

behalf of others similarly situated,

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No. 08-2228

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v.

LJUBISA J. DRAGOVIC, individually and in his -

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official capacity as Medical Examiner of

Oakland County, Michigan, and OAKLAND -

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COUNTY, MICHIGAN, a municipal

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corporation,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 08-10393—Victoria A. Roberts, District Judge.

Argued: June 16, 2009

Decided and Filed: August 14, 2009

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Before: GILMAN and McKEAGUE, Circuit Judges; BARRETT, District Judge.

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COUNSEL

ARGUED: William H. Horton, GIARMARCO, MULLINS & HORTON, P.C., Troy,

Michigan, for Appellants. Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA,

Painesville, Ohio, for Appellee. Steven M. Jentzen, STEVEN M. JENTZEN, P.C.,

Ypsilanti, Michigan, for Amici Curiae. ON BRIEF: William H. Horton, Elizabeth A.

Favaro, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, Keith J.

Lerminiaux, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan,

for Appellants. Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA, Painesville,

Ohio, John Henry Metz, LAW OFFICE, Cincinnati, Ohio, for Appellee. Steven M.

Jentzen, STEVEN M. JENTZEN, P.C., Ypsilanti, Michigan, B. Eric Restuccia, OFFICE

OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Daniel A. Ophoff,

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The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio,

sitting by designation.

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No. 08-2228 Waeschle v. Dragovic et al. Page 2

KENT COUNTY, Grand Rapids, Michigan, Joanne G. Swanson, KERR, RUSSELL

AND WEBER, PLC, Detroit, Michigan, for Amici Curiae.

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AMENDED OPINION

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RONALD LEE GILMAN, Circuit Judge. After Karen Waeschle’s mother died,

an autopsy was performed to determine the cause of death. When the mother’s remains

were returned to Waeschle for cremation, she was not informed that the brain had been

removed during the autopsy and was still being studied by the Medical Examiner.

Waeschle sued Oakland County and Ljubisa J. Dragovic, the Oakland County Medical

Examiner (Dragovic or the Medical Examiner), after discovering that her mother’s brain

had been incinerated as medical waste once the autopsy was completed. The Medical

Examiner, Waeschle maintains, violated the Due Process Clause of the Fourteenth

Amendment by depriving her of the right to dispose of her mother’s brain.

Oakland County and Dragovic filed for summary judgment, arguing that

Waeschle had no constitutionally protected property right to possess her deceased

mother’s brain because it had been removed for forensic examination. Dragovic also

asserted a qualified-immunity defense. In the alternative, the County and Dragovic

requested that the district court certify to the Michigan Supreme Court the question of

whether Michigan law gives Waeschle a property interest in her deceased mother’s brain

for the purpose of burial or cremation.

For the reasons set forth below, we REVERSE the portion of the district court’s

judgment denying Dragovic’s qualified-immunity defense, and REMAND the case with

instructions to grant his motion for summary judgment with respect to Waeschle’s

individual-capacity claim against him. We also REVERSE the judgment of the district

court denying Oakland County’s and Dragovic’s motion to certify the question of state

law to the Michigan Supreme Court, and REMAND the case with instructions to certify

the question and conduct such further proceedings as are necessary for the proper

disposition of this case.

No. 08-2228 Waeschle v. Dragovic et al. Page 3

I. BACKGROUND

A. Factual background

Karen Waeschle’s 88-year old mother, Katherine R. Weins, was a resident of a

nursing home in West Bloomfield, Michigan. In August 2006, she fell and hit her head.

Weins was taken to a hospital, where she died two weeks later. Waeschle suspected that

abuse or neglect caused the fall. To investigate, the West Bloomfield Township Police

Department requested that an autopsy be performed on Weins’s body. Waeschle did not

challenge the request.

Dr. Ruben Ortiz-Reyes was the Deputy Oakland County Medical Examiner who

conducted the autopsy. This required Dr. Ortiz-Reyes to remove and examine various

organs, including Weins’s brain, for clues regarding the cause of her death. To examine

a brain, it must be soaked in a formaldehyde-like solution until it becomes stiff enough

to dissect. The soaking process normally takes 10 to 14 days. With the exception of the

brain, the other organs that Dr. Ortiz-Reyes examined were placed back into the body.

When Weins’s body (minus the brain) was made available to Waschle, the latter

cremated the remains. Waeschle disposed of her mother’s body without knowing that

the brain was not included. The Medical Examiner failed to notify Waeschle that her

mother’s body was being returned without the brain or that the Medical Examiner

planned to incinerate it once the examination of that organ was completed.

Several months later, after disposing of her mother’s body, Waeschle met with

the Deputy Medical Examiner and was provided a copy of the autopsy report. At that

time, Waeschle learned that her mother’s brain had been incinerated as medical waste

without her consent. This litigation followed.

B. Procedural background

As amended, Waeschle’s complaint alleged that the Medical Examiner violated

Waeschle’s Fourteenth Amendment right to due process by not returning her mother’s

brain for disposal after the autopsy of that organ was completed. Waeschle also claimed

No. 08-2228 Waeschle v. Dragovic et al. Page 4

that Dragovic negligently and intentionally inflicted emotional distress on her in

violation of state law. In June 2008, the Medical Examiner filed a motion for summary

judgment on the due process claim based upon the defense of qualified immunity. He

also filed a motion to dismiss the state-law causes of action. In the alternative, Dragovic

urged the district court to certify the state-law issues to the Michigan Supreme Court.

The district court dismissed the state-law claims. As for the due process claim,

the court found that Waeschle had established that (1) she had a quasi-property interest

in her mother’s brain that was protected under the United States Constitution, and (2) the

Medical Examiner deprived her of that interest while acting under color of state law.

The court also found that Dragovic was not entitled to qualified immunity because the

quasi-property interest was “clearly established” and because the Medical Examiner

“reasonably should have known” that he was violating Waeschle’s Fourteenth

Amendment right.

II. ANALYSIS

A. Standard of review

This appeal involves the denial of a qualified-immunity claim, which was set

forth in Dragovic’s motion for summary judgment. “We review a district court’s denial

of qualified immunity de novo.” Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999).

Summary judgment is proper where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In

considering a motion for summary judgment, the district court must construe all

reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

No. 08-2228 Waeschle v. Dragovic et al. Page 5

B. Section 1983 and the qualified-immunity framework

Section 1983 serves as a vehicle to obtain damages caused by persons acting

under color of state law whose conduct violates the U.S. Constitution or federal laws.

McQueen v. Beecher Comty. Schs., 433 F.3d 460, 463 (6th Cir. 2006). “A law

enforcement officer’s key defense to a § 1983 action is encapsulated in the concept of

qualified immunity.” Drogosch v. Metcalf, 557 F.3d 372, 377 (6th Cir. 2009). “The

doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009) (citation and internal quotation marks omitted).

Until recently, federal courts were required to conduct the qualified-immunity

analysis using the two-step sequential inquiry set forth in Saucier v. Katz, 533 U.S. 194

(2001). The first step required courts to determine “whether the facts that a plaintiff has

alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 129

S. Ct. at 816 (citations omitted). And

if the plaintiff has satisfied this first step, the court must decide whether

the right at issue was “clearly established” at the time of defendant’s

alleged misconduct. Qualified immunity is applicable unless the

official’s conduct violated a clearly established constitutional right.

Id. (citation omitted).

In Pearson, however, the Supreme Court held that the sequential Saucier

protocol was no longer mandatory. Id. at 818. The Court reasoned that

[t]he procedure sometimes results in a substantial expenditure of scarce

judicial resources on difficult questions that have no effect on the

outcome of the case. There are cases in which it is plain that a

constitutional right is not clearly established but far from obvious

whether in fact there is such a right.

Id.

No. 08-2228 Waeschle v. Dragovic et al. Page 6

Our qualified-immunity analysis that follows does not resolve the merits of

Waeschle’s constitutional claim. Doing so is unnecessary because, as will be shown,

Waeschle’s purported constitutional right is not clearly established.

C. Clearly established constitutional rights

The “clearly established” prong of the two-step Saucier analysis is particularly

important for the present case. This court has clarified that

[f]or a right to be “clearly established,” the contours of the right must be

sufficiently clear that a reasonable official would understand that his or

her conduct violates that right. The unlawfulness of the official or

employee’s conduct must be apparent in light of pre-existing law.

Durham v. Nu’Man, 97 F.3d 862, 866 (6th Cir. 1996). “A right is not considered clearly

established unless it has been authoritatively decided by the United States Supreme

Court, the Court of Appeals, or the highest court of the state in which the alleged

constitutional violation occurred.” Id.

Waeschle complains that Dragovic violated her right to dispose of her mother’s

brain when he did not give her the opportunity to recover it for the purpose of burial or

cremation. But whether Waeschle has this right under state law is far from clear. Before

explaining why, we will set forth the framework governing the analysis of procedural

due process claims to provide further context for the claim at stake in this appeal.

1. Due process framework

The Due Process Clause of the Fourteenth Amendment provides that no State

shall “deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. “In order to establish a procedural due process claim, a plaintiff

must show that (1) he had a life, liberty, or property interest protected by the Due

Process Clause; (2) he was deprived of this protected interest; and (3) the state did not

afford him adequate procedural rights prior to depriving him of the property interest.”

Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2007) (citation

omitted).

No. 08-2228 Waeschle v. Dragovic et al. Page 7

This appeal concerns the question of whether Waeschle has a constitutionally

protected property interest under the first element listed above. “Property interests are

created and their dimensions are defined by existing rules or understandings that stem

from an independent source such as state law—rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.” Id. (quoting

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (internal quotation marks omitted)).

Although property rights are principally created by state law, “whether a

substantive interest created by the state rises to the level of a constitutionally protected

property interest is a question of federal constitutional law.” Whaley v. County of

Tuscola, 58 F.3d 1111, 1114 (6th Cir. 1995). “Property interests protected by the due

process clause must be more than abstract desires or attractions to a benefit. The due

process clause only protects those interests to which one has a legitimate claim of

entitlement.” Brotherton v. City of Cleveland, 923 F.2d 477, 480 (6th Cir. 1991)

(citations and internal quotation marks omitted). In the next subsection, we address the

issue of whether Dragovic deprived Waeschle of a clearly established, constitutionally

protected property right to her mother’s brain without due process of law.

2. White’s claimed property right is not clearly established

Waeschle cites two cases from this court in support of her claim that she has a

clearly established property right to her mother’s brain: Brotherton v. Cleveland, 923

F.2d 477 (6th Cir. 1991), and Whaley v. County of Tuscola, 58 F.3d 1111, 1117 (6th Cir.

1995). Each of these cases involves the removal of corneas from dead bodies without

the authorization of the decedent’s next of kin. Because the court in Whaley considered

itself bound by Brotherton, we will discuss the cases in chronological order.

In Brotherton, the plaintiff’s husband was discovered in his car without a pulse.

He was taken to a hospital in Cincinnati, Ohio, where he was declared dead on arrival.

The plaintiff declined to donate her husband’s organs. Because the death might have

been a suicide, the hospital transferred the body to the county coroner’s office for an

autopsy. After the autopsy was completed, the coroner permitted the removal of the

decedent’s corneas for storage in an eye bank. The hospital had failed to inform the

No. 08-2228 Waeschle v. Dragovic et al. Page 8

coroner that the plaintiff did not want her husband’s body parts removed for donation.

Nor did the coroner ask whether there were any such objections before allowing the

removal of the corneas. In fact, an Ohio statute “permitted a coroner to remove the

corneas of autopsy subjects without consent, provided that the coroner has no knowledge

of an objection by the decedent, the decedent’s spouse, or, if there is no spouse, the next

of kin, the guardian, or the person authorized to dispose of the body.” Brotherton, 923

F.2d at 478 (citing Ohio Rev. Code § 2108.60).

The plaintiff in Brotherton sued the county coroner under 42 U.S.C. § 1983,

alleging that she was deprived of her property rights in violation of the Due Process

Clause because her husband’s corneas had been removed without her consent. Id. at

478-79. Although the district court dismissed the complaint for failing to state a claim,

this court reversed, holding that “the aggregate of rights granted by the state of Ohio to

[the plaintiff] rises to the level of a legitimate claim of entitlement in [the decedent’s]

body, including his corneas, protected by the due process clause of the fourteenth

amendment.” Id. at 482 (internal quotation marks omitted).

In reaching this conclusion, the Brotherton court impliedly conceded that the

widow’s rights to her husband’s dead body were quite limited. The court acknowledged,

for example, that Ohio courts had expressly declined to recognize that the next of kin

have vested property rights in the bodies of their deceased relatives. Id. at 480 (citing

Carney v. Knollwood Cemetery Ass’n, 514 N.E.2d 430, 434-35 (Ohio Ct. App. 1986)).

On the other hand, the court noted that “property” is traditionally conceptualized as a

bundle of rights, including “the rights to possess, to use, to exclude, to profit, and to

dispose.” Id. at 481. Moreover, there was little doubt that Ohio law afforded the next

of kin at least some of these rights with respect to their relative’s body. See id.

The court in Brotherton emphasized that the plaintiff had the right under Ohio

law to possess her husband’s body for the limited purpose of conducting a burial or other

lawful disposition. Id. at 482. Another right of the next of kin is to make an anatomical

gift of their relatives’ organs. See id. at 478 (“The hospital asked [the plaintiff] to

consider making an anatomical gift; she declined . . . .”). Brotherton concluded that

No. 08-2228 Waeschle v. Dragovic et al. Page 9

these limited rights, even though they were not labeled property rights by the Ohio

courts, formed the basis of a constitutionally protected property interest in the decedent’s

body, including the corneas. Id.

Whaley involved similar facts. Two Michigan counties hired a pathologist to

conduct autopsies on a contractual basis. The counties entered into an agreement

pursuant to which the pathologist’s assistant was allowed to remove a decedent’s corneas

without the consent of the next of kin. In return, the pathologist’s assistant, who stood

to profit from selling the corneas, agreed to bear “all the counties’ expenses in

performing the autopsies whenever corneas were removed, and half those expenses when

they were not.” Whaley, 58 F.3d at 1113.

Once this cornea-removal practice was discovered, a class of plaintiffs sued the

counties, alleging that “they were deprived of their Fourteenth Amendment right to

procedural due process when the alleged state actors removed the decedents’ eyeballs

or corneas.” Id. The district court dismissed their complaint after concluding that

Michigan law did not create rights that qualified as constitutionally protected property

interests under the Due Process Clause. Id.

Just as in Brotherton, however, this court reversed the district court’s judgment,

holding that “the next-of-kin [have] a legitimate claim of entitlement and thus a property

interest in a dead relative’s body, including the eyes.” Id. at 1117. The court reasoned

that it was bound by Brotherton because Michigan law contained “the same basic rights

in a deceased person’s body as Ohio.” Id. at 1114. One such right is that of the next of

kin “to possess the body for burial and prevent its mutilation.” Id. This right was

inferred from several Michigan Supreme Court cases recognizing a cause of action for

the unlawful mutilation of a corpse. See id. (citing, for example, Deeg v. City of Detroit,

76 N.W.2d 16, 19 (Mich. 1956) (“It seems to be settled by the great weight of authority

that the unlawful and intentional mutilation of a dead body gives rise to a cause of action

on behalf of the person or persons entitled to the possession, control, and burial of such

body.”)) The next of kin also have the right to choose whether to make “a gift of all or

No. 08-2228 Waeschle v. Dragovic et al. Page 10

part of the decedent’s body, at least when there is no contrary intent evidenced by the

decedent.” Whaley, 58 F.3d at 1116. In sum, the court concluded that

the next of kin have the right to dispose of the body in limited

circumstances, possess the body for burial, and prevent its mutilation.

Applying Brotherton, we therefore hold that Michigan provides the next

of kin with a constitutionally protected property interest in the dead body

of a relative.

Id.

Waeschle contends that the same basic reasoning found in Brotherton and

Whaley controls this appeal. Her argument is, in essence, that her mother’s brain is no

less constitutionally protected than are eyes or corneas. She also contends that the

cornea cases serve to satisfy the second prong of Saucier’s qualified-immunity analysis

because they allegedly demonstrate that the right to her mother’s brain was clearly

established.

Brotherton and Whaley, however, are distinguishable from the present case. The

key difference is that the brain of Waeschle’s mother was removed and retained for

study by the Medical Examiner in furtherance of a lawful criminal investigation. By

contrast, the removal of corneas in Brotherton and Whaley served no investigative

function whatsoever. The distinction is important because Waeschle might have no right

under Michigan law to possess, control, or dispose of her mother’s brain once it is

removed for legitimate forensic study.

A pair of cases decided in the Southern District of Ohio on this very issue

illustrate the conflicting viewpoints. The first case, Hainey v. Parrott, No. 1:02-CV-733,

2005 WL 2397704, at *4-5 (S.D. Ohio Sept. 28, 2005), supports Waeschle’s position.

In Hainey, the plaintiffs brought a class-action lawsuit after learning, as Waeschle did,

that they had buried their loved ones’ bodies without the brains because the latter had

been removed during autopsy and retained for further study. The Ohio coroner moved

for, and the district court denied, summary judgment on the basis of qualified immunity.

No. 08-2228 Waeschle v. Dragovic et al. Page 11

According to the district court in Hainey, the plaintiffs had a legitimate claim of

entitlement to the decedents’ brains in light of Brotherton. Brotherton’s holding, the

court continued, broadly included “the right to take possession of what remains of the

deceased’s body following the completion of the autopsy.” Hainey, 2005 WL 2397704,

at *6. The court further concluded that “Brotherton very broadly and very clearly held

that family members have a property interest in their decedent’s body parts which is

protected by the due process clause of the Fourteenth Amendment.” Id. at *8. This

purportedly clear ruling, furthermore, rendered the coroner ineligible for qualified

immunity because “a reasonable coroner in this judicial circuit would have known that

disposing of body parts without notice to the decedent’s next of kin would have violated

that right.” Id.

Hainey therefore supports Waeschle’s claim. But subsequent caselaw in Ohio

reaches the opposite conclusion. The same district court, in Albrecht v. Treon, No. 1:06-

cv-274, 2007 WL 777864, at *1 (S.D. Ohio March 12, 2007) (Albrecht I), considered a

virtually identical fact pattern as the one addressed in Hainey. A lawsuit was filed

against the coroner of Clermont County, Ohio after the plaintiffs discovered that the

coroner “had removed their son’s brain for forensic examination and retained it after the

autopsy.” Albrecht I, 2007 WL 777864, at *1. In response, the coroner argued that the

court in Hainey had misinterpreted applicable Ohio law. Id. The coroner requested that

the district court certify the following question to the Ohio Supreme Court:

Whether the next of kin of a decedent, upon whom an autopsy has been

performed, have a property right under Ohio law in the decedent’s

tissues, organs, blood or other body parts that have been removed and

retained by the coroner for forensic examination and testing.

Id. at *2.

Acknowledging that Ohio law affords the next of kin a custodial right in the body

of the decedent, the district court nevertheless concluded that the right does not

“automatically confer to the next of kin a protected right in ‘body parts’ of a decedent

removed and retained by the coroner for forensic examination and testing.” Id. at *5.

The court emphasized that an Ohio statute appeared to severely restrict the rights of the

No. 08-2228 Waeschle v. Dragovic et al. Page 12

next of kin to body parts or tissues collected during the course of an autopsy. Id. (citing

Ohio Rev. Code § 313.123(B)(1) (2006) , which provides that “retained tissues, organs,

blood, other bodily fluids, gases, or any other specimens from an autopsy are medical

waste and shall be disposed of in accordance with applicable federal and state laws”).

Indeed, there was only one exception to this medical-waste disposal requirement,

triggered by religious considerations. Id. (citing Ohio Rev. Code § 313.123(B)(2),

which states that the coroner must return specimens to the person who has the right to

the disposition of the body if “the coroner has reason to believe that the autopsy is

contrary to the deceased person’s religious beliefs.”). Despite this statute’s provision

stating that autopsy specimens are to be treated as medical waste, the district court

granted the coroner’s request to certify the issue to the Ohio Supreme Court after

concluding that none of the existing Ohio authorities resolved the precise issue of

whether the next of kin had a right to dispose of body parts that had been collected

during an autopsy. Albrecht I, 2007 WL 777864, at *5–6.

The Ohio Supreme Court accepted the certified question for review and

repudiated the plaintiffs’ position, holding that “the next of kin of a decedent upon whom

an autopsy has been performed do not have a protected right under Ohio law in the

decedent’s tissues, organs, blood, or other body parts that have been removed and

retained by the coroner for forensic examination and testing.” Albrecht v. Treon, 889

N.E.2d 120, 122 (Ohio 2008) (Albrecht II) (emphasis added). In reaching this

conclusion, the court distinguished Brotherton, reasoning that “Brotherton’s specific

holding regarding removal of corneas for purposes unrelated to the autopsy is not

relevant in this case.” Id. at 124. The corneas in Brotherton were extracted pursuant to

an Ohio statute that permitted their removal even when doing so was not necessary to

conduct a forensic examination. 923 F.2d at 478-79. Different interests are at stake,

according to the Ohio Supreme Court, when tissue is taken for lawful investigative

purposes:

[A] deceased’s next of kin had no protected right in autopsy specimens

pursuant to Ohio statutes. The Ohio Revised Code authorizes coroners

to perform an autopsy when the coroner believes an autopsy is necessary.

No. 08-2228 Waeschle v. Dragovic et al. Page 13

A coroner’s forensic examination is a classic function of the police

power of the state. Many times, autopsy specimens and the results of the

forensic examination are essential evidence in the prosecution of a crime.

Sometimes, autopsy specimens must be preserved for long periods of

time.

Albrecht II, 889 N.E.2d at 126-27 (citation omitted) (emphasis added).

Furthermore, the Ohio Supreme Court noted that its conclusion did not depend

on the existence of the 2006 statute that designated autopsy specimens as medical waste.

Id. at 126 (holding that “[e]ven before [Ohio Rev. Code § 313.123(B)] was enacted, a

deceased’s next of kin had no protected right in autopsy specimens pursuant to Ohio

statutes”). Albrecht II clearly raises a question as to the scope of the quasi-property right

at issue in both Brotherton and Whaley where forensic specimens are collected in the

course of criminal investigations (as in the present case).

Waeschle’s property rights, of course, are not defined by Ohio law. But Whaley

observed that Michigan law contained “the same basic rights in a deceased person’s

body as Ohio.” Whaley, 58 F.3d at 1115. The Ohio Supreme Court’s decision in

Albrecht II is therefore relevant in assessing whether the same right is clearly established

under Michigan law. And the Court’s decision in Albrecht II, which explicitly denied

that the next of kin have a right to body parts collected for forensic examination,

suggests that such a right would probably not be recognized under existing Michigan

law.

But our analysis is not based exclusively on the analogy to cases construing Ohio

law. Instead, our independent review of Michigan law fails to establish an unequivocal

post-autopsy right to specimens taken for the purpose of a lawful criminal investigation.

One of the cases from the Michigan Supreme Court cited by Waeschle recognizes a

cause of action for the unlawful and intentional mutilation of dead bodies. Deeg v. City

of Detroit, 76 N.W.2d 16, 19 (Mich. 1956) (“It seems to be settled by the great weight

of authority that the unlawful and intentional mutilation of a dead body gives rise to a

cause of action on behalf of the person or persons entitled to the possession, control, and

burial of such body.”). Another recognizes the next of kin’s right to control a relative’s

No. 08-2228 Waeschle v. Dragovic et al. Page 14

body for the limited purpose of securing a burial. Doxtator v. Chicago & W.M. Ry. Co.,

79 N.W. 922, 922 (Mich. 1899) (recognizing that, although there was “no property in

a dead body [at common law], . . . the one whose duty it is to care for the body of the

deceased is entitled to possession of the body, as it is when death comes, and that it is

an actionable wrong for another to interfere with that right by withholding the body or

mutilating it in any way”).

But these cases, as well as others cited by Waeschle, fail to address the question

of body parts retained for forensic examination. See Keyes v. Konkel,78 N.W. 649, 649

(Mich. 1899) (observing that various state courts have considered dead bodies to be

“quasi property,” and recognizing a tort for infringing on a next of kin’s right to have an

unmutilated dead body delivered for burial); Dampier v. Grace Hosp. Corp., 592

N.W.2d 809 (Mich. Ct. App. 1999) (addressing causes of action available against

coroners who allowed the decomposition of a dead body in their possession); Tillman

v. Detroit Receiving Hosp., 360 N.W.2d 275, 277 (Mich. Ct. App. 1984) (“While there

is no property right in the next of kin to a dead body, . . . Michigan jurisprudence

recognizes a common law cause of action on behalf of the person or persons entitled to

the possession, control, or burial of a dead body . . . .”). None of these cases consider

the situation where body parts were removed and retained during an autopsy for study

in the course of a properly authorized criminal investigation.

Nor does Waeschle identify any Michigan statute that unambiguously sets forth

a Medical Examiner’s duties regarding how he or she should dispose of particular body

parts collected for the purposes of an autopsy. One statute authorizes Medical

Examiners to retain, “as long as may be necessary, any portion of the body believed by

the medical examiner to be necessary for the detection of any crime.” Mich. Comp.

Laws § 52.205 (emphasis added). The same statute instructs Medical Examiners to

“promptly deliver or return the body to relatives or representatives of the deceased.” Id.

(emphasis added). Another statute cited by Waeschle simply describes the right of the

next of kin to make decisions regarding, for example, funeral arrangements. See id.

§ 700.3206(1).

No. 08-2228 Waeschle v. Dragovic et al. Page 15

Waeschle argues that the above provisions create the right to a prompt return of

her mother’s brain after the Medical Examiner had completed the autopsy. But the

statutory language does not specify whether each and every body part or specimen

collected during the course of an autopsy must be returned to the next of kin on a

piecemeal basis. Such a requirement might prove totally impracticable.

In sum, Michigan law regarding the rights of the next of kin in their relative’s

body parts removed for forensic examination during an autopsy is at best equivocal. Not

a single case instructed Dragovic to treat the brain in any manner other than the way he

did. Nor did any Michigan statute unambiguously instruct Dragovic on how to dispose

of individual body parts retained for forensic examination as opposed to dealing with the

body as a whole.

Waeschle’s alleged constitutionally protected property right to her mother’s brain

is therefore not clearly established because the underlying state-created property interest

is not “sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” See Drogosch v. Metcalf, 557 F.3d 372, 379 (6th Cir. 2009) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). For that reason, Dragovic is entitled

to summary judgment on the basis of qualified immunity. See Drogosch, 557 F.3d at

379.

To avoid any misunderstanding, we wish to clarify the limits of this holding.

There is nothing in the preceding analysis that is intended to suggest that Michigan law

clearly establishes that the next of kin have no quasi-property interest in body parts

collected during the course of an autopsy for forensic examination. Nor is the discussion

meant to foreclose the possibility that, if Michigan establishes such a right in the future,

the interest would rise to the level of a constitutionally protected property right under the

Fourteenth Amendment. In light of Pearson v. Callahan, 129 S. Ct. 808, 818 (2009),

however, we are under no obligation to determine the existence or the scope of

Waeschle’s right to her mother’s brain in the present case.

We also wish to acknowledge that Waeschle’s shock in learning that her

mother’s brain was incinerated as medical waste is understandable. And the possibility

No. 08-2228 Waeschle v. Dragovic et al. Page 16

exists that Michigan might in the future decide to recognize a right to recover organs that

were originally retained as part of a lawful criminal investigation. Such a right would

also presumably have to distinguish between major body parts (to which individuals like

Waeschle would have a right to possess for the purpose of burial or cremation) and

insignificant tissue samples (to which no such right would attach). But Michigan law

as presently developed does not clearly recognize that such a custodial right to body

parts exists. And whether to recognize such a right is a task that the Michigan legislature

and courts are better equipped to handle than this court, which is why we are exercising

our discretion under Pearson to not further explore the first prong of the qualified-

immunity test as set forth in Saucier v. Katz, 533 U.S. 194 (2001).

D. Oakland County and official-capacity claim

Although the preceding qualified-immunity analysis shields Dragovic from

Waeschle’s individual-capacity claim, we have declined to evaluate the merits of

Waeschle’s due process claim because we are uncertain as to whether Michigan law

gives Waeschle a property interest in her deceased mother’s brain that is constitutionally

protected. Waeschle’s due process claim against Dragovic in his official capacity and

against Oakland County is therefore still pending.

We have already explained that the merits of Waeschle’s constitutional claim

depend primarily on whether, under Michigan law, she had a property interest in her

deceased mother’s brain. See Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611

(6th Cir. 2007) (explaining that the question of whether a constitutionally protected

property interest exists is often a question of state law). Specifically, Waeschle’s due

process claim turns on the answer to the following state-law question:

Assuming that a decedent’s brain has been removed by a medical

examiner in order to conduct a lawful investigation into the decedent’s

cause of death, do the decedent’s next-of-kin have a right under

Michigan law to possess the brain in order to properly bury or cremate

the same after the brain is no longer needed for forensic examination?

Given our view that the Michigan courts are better suited to answer the unsettled

state-law aspect of Waeschle’s due process claim than we are, we will exercise our

No. 08-2228 Waeschle v. Dragovic et al. Page 17

discretion to have the district court certify the above-stated issue to the Michigan

Supreme Court. See Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th

Cir. 1995) (explaining that certification to a state’s highest court is proper “when the

question is new and state law is unsettled”) (citations omitted); Geib v. Amoco Oil Co.,

29 F.3d 1050, 1060 (6th Cir. 1994) (observing that certification is appropriate “where

an important question of state law has arisen solely in federal court”); Mich. Ct. R.

§ 7.305(B)(1) (permitting the Michigan Supreme Court to address questions of Michigan

law that have been certified by a federal court).

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the portion of the district

court’s judgment denying Dragovic’s qualified-immunity defense, and REMAND the

case with instructions to grant his motion for summary judgment with respect to

Waeschle’s individual-capacity claim against him. We also REVERSE the judgment

of the district court denying Oakland County’s and Dragovic’s motion to certify the

question of state law to the Michigan Supreme Court, and REMAND the case with

instructions to certify the question and conduct such further proceedings as are necessary

for the proper disposition of this case.