Petition for Writ of Certiorari — County of Saginaw v. Whaley

Sinral OTL. >

nN we Am ™& te oh boule (Ps.

o——~ preme .

No. 95-427) | ) FILED

In The SEP 13 tO%:

Supreme Court of the United States

October Term, 1995 *

°

COUNTY OF SAGINAW; M.B. GOLDBERGER, D.O.,

individually and as Saginaw County Chief Medical Examiner,

Petitioners,

V.

DIANE M. WHALEY, et al.; WILLIAM E. JONES, et al.;

CHRISTINE M. TUNNEY, et al.; RITA SHARRARD;

LUCILLE JONES MILLER, et al.; GEORGE SAUNDERS, et al.;

COUNTY OF TUSCOLA, through its governing body,

Tuscola County Board of Commissioners; ARMANDO

HERRERA, Executive Director of Mid Regional Tissue

Center; ARMANDO HERRERA, individually, and d/b/a

Central Michigan Eye Bank and Tissue Center, d/b/a

Central Michigan Eye Bank; MID REGIONAL TISSUE

CENTER, a Michigan non-profit corporation; SAGINAW

COMMUNITY HOSPITAL, a county public hospital;

LANKENAW HOSPITAL, a Pennsylvania non-profit

corporation; CHRISTOPHER C. TAYLOR, individually, and

as former Tuscola County Commissioner; HERBERT L.

NIGG, M.D., individually; RONALD G. HINES, M.D.,

Pathologist for Tuscola County; IRVING M. RABER, M.D., a

Pennsylvania professional corporation; JAMES W. BAKER,

Personal Representative for the

Estate of Armando Herrera, Deceased,

Respondents.

-¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

From The Sixth Circuit

% —

PETITION FOR A WRIT OF CERTIORARI

*

Daniet P. Dacron (P44056)

Counsel of Record

KennetH G. Gauica (P27275)

Dantet P. Datton (P44056)

JoHNsON, Rosati, GALICA, SHIFMAN,

LABarRGE, ASELTYNE, SUGAMELI & Fretp, P.C.

Counsel for Petitioner

34405 W. Twelve Mile Rd., Ste. 200

Farmington Hills, MI 48331

(810) 489-4100 Fax: 489-1726

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The Plaintiffs brought these §1983 actions, alleging

that the Defendants violated their Fourteenth Amend-

ment procedural due process rights by removing the cor-

neas of their recently deceased relatives. The question

présented is whether the next of kin has a constitutionally

protected property interest in a deceased relative’s cor-

neas enabling them to assert a procedural due process

claim.

il

TABLE OF CONTENTS

Page(s)

QUESTION PREGHIU IGS «+0 s06+:01000s0 vessel i

TABLE OF AUTISORITIOS « .604s fenseusssreducrua iv

OPINIONS GELOW « 6osscievceanas es sane 2

JURISDICTION .. 060 0sscs6es0Gewe Hees beeaneaeee 2

CONSTITUTIONAL PROVISION INVOLVED....... 2

I. STATEMENT OF ‘THEE CABS ios ceteescctteoins 3

A. Introductlotl. .....0iseeueneuceeeens eee 3

B. Legal Proceedings Below.................. 4

(1) The District Court Proceedings ....... 4

(2) The Sixth Circuit Court of Appeals Pro-

CONCERNED 2. ose 0hedens bee eee eee 6

Il. REASONS FOR GRANTING THE PETITION .. 6

A. The Sixth Circuit Court of Appeals’ Deci-

sion Conflicts With the Law of the State of

Michigan .....i<ssestssneanieheeke ees 8

(1) The Brotherton Decision.............. 8

(2) Under Michigan Law, the Next of Kin

Does Not Have a Property Interest in a

Decedent's SaGP c<cis.0cecueenaseens 10

(3) The Michigan Statutory Law is not a

Source of Constitutionally Protected

Property Interests in Corneas......... 14

(a) The Uniform Anatomical Gift

Att . oc wicueeaneeeeeee 14

mes ae

aa

lil

TABLE OF CONTENTS - Continued

Page(s)

B. The Decision of the Sixth Circuit Conflicts

With the Decisions of Other Circuits and

State Law, and the Grant of Certiorari Will

Likely Produce Guidance to Courts ....... 18

C. The Question Presented is Important as the

Sixth Circuit- Court of Appeals’ Decision

Will Have an Adverse Impact on National

Law and Policy if it Stands............... 22

a 25

DECISION OF THE SIXTH CIRCUIT COURT OF

oO) ere eere rere APPENDIX 1

DECISION OF THE HONORABLE ROBERT CLE-

LAND, UNITED STATES DISTRICT COURT,

EASTERN DISTRICT MICHIGAN, NORTHERN

Oe eer err errr. APPENDIX 14

iv

TABLE OF AUTHORITIES

Page(s)

Cases CITED

Allinger v. Kell, 102 Mich. App. 798; 302 N.W.2d

576 (1981); rev. on oth. gr. 411 Mich. 1053 ........ 12

Arnaud v. Odom, 870 F.2d 304 (5th Cir., 1989), cert.

Gan. 46 US. TS CSG ois dvs vivicsesvdivecses 19, 20

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct.

vo, Oe OR. peer rrr rrr reer 18

Brotherton v. Cleveland, 923 F.2d 472 (6th Cir, 1991). .passim

Carney v. Knollwood Cemetery Association, 33 Ohio

Aap. 36 Fi GIG 6 bes secs uecessaiodagacadors« 5, 9

Deeg v. City of Detroit, 345 Mich 371, 375; 76

PE I I an 5 bon aue cece s 30 4ane weMs 10, 11, 12

Doxtator v. Chicago and West Railroad Co, 120 Mich.

Sa Fe Oe ee CN oo bgs oak ros scenbeesescea ss 11

Everman v. Davis, 54 Ohio App. 3d 119 (1989)...... a

Florida v. Powell, 497 S.2d 1188 (Fla., 1986), cert.

es me Aree reer 20, 21

Fuller v. Marx, 724 F.2d 717 (8th Cir., 1984) ......... 19

Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 335

S.E.2d 127 (Ga., 1985), cert. den. 475 U.S. 1084

CRUE is 5s Kins cca ek itennaecuenchakns Ri epeeiecens 21

Keys v. Konkel, 119 Mich. 550; 78 N.W. 649 (1899)...11, 12

Lawyer v. Kernodle, 721 F.2d 632 (8th Cir., 1983) ..... 20

Logan v. Zimmerman Brush Co, 455 U.S. 422, 430;

102 S. Ct. 1148; 71 L. Ed. 2d 265 (1962)........... 18

TABLE OF AUTHORITIES - Continued

Page(s)

Memphis Light v. Craft, 439 U.S. 1, 9; 98S. Ct. 1554;

eee Se of: eee ores 19

Paul v. Davis, 424 US 693, 47 L. Ed. 2d 405; 96 S.

S| RR rp rr ror eee peer ren 13

Tillman v. Detroit Receiving Hospital, 138 Mich.

App. 683; 360 N.W.2d 275 (1984)........... 40, 12, 23

Court RuLes:

MCL 5Z.131, ot al.; MSA 5.935, ef al... ....cnceces 14, 17

EC Ss, Me Ea ee a Fea ee eae 17

MCL 333.10101, et al.; MSA 14.15 (10101), et al...... 14

MCL 333.10108; MSA 14.15 (10108).................. 16

MCL 333.10202; MESA. 16.15. (IGZUZ)... cc cecccnccscnes 15

MCL 333.10203; MBA 14.15 (10208). .....2.cccccccces 16

y Bes Fee guns ty ane py eer rent erie p 2

Ge A EE sn hk pe nbueas beac i ee oes Caccs rT ceeerenes 23

gk ee eee eee ry fer eer or rey 6, 8, 10, 20

Cielo Revi Cae BURG 0 b.va i ce ccc cesideccsses 5, 17

Ohio Revised Code §2108.02(b) .................5.. 5,9

Me Re ree pyre er 4, 15

UAGA §1(7), (8)(a) (U.L., at 8 supp. 1990) .......... 14

Law JourRNALS & Reviews

2 Blackstone Commentaries, 429 (1756).............. 11

Scott, The Body of Property, 1981, p. 26.............. 24

Ala QE.

No. 95-427

S

In The

Supreme Court of the United States

October Term, 1995

*

_COUNTY OF SAGINAW; M.B. GOLDBERGER, D.O.,

individually and as Saginaw County Chief Medical Examiner,

Petitioners,

Vv.

DIANE M. WHALEY, et al.; WILLIAM E. JONES, et al.;

CHRISTINE M. TUNNEY, et al.; RITA SHARRARD;

LUCILLE JONES MILLER, et al.; GEORGE SAUNDERS, et al.;

COUNTY OF TUSCOLA, through its governing body,

Tuscola County Board of Commissioners; ARM

HERRERA, Executive Director of Mid Regional Tissue

Center; ARMANDO HERRERA, individually, and d/b/a

Central Michigan Eye Bank and Tissue Center, d/b/a

Central Michigan Eye Bank; MID REGIONAL TISSUE

CENTER, a Michigan non-profit corporation; SAGINAW

COMMUNITY HOSPITAL, a county public hospital;

LANKENAW HOSPITAL, a Pennsylvania non-profit

corporation; CHRISTOPHER C. TAYLOR, individually, and

as former Tuscola County Commissioner; HERBERT L.

NIGG, M.D., individually; RONALD G. HINES, M.D.,

Pathologist for Tuscola County; IRVING M. RABER, M.D., a

Pennsylvania professional corporation; JAMES W. BAKER,

Personal Representative for the

Estate of Armando Herrera, Deceased,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

From The Sixth Circuit

.

PETITION FOR A WRIT OF CERTIORARI

S

1

The County of Saginaw, Michigan and Dr. M. B.

Goldberger, respectfully petition that a Writ of Certiorari

will issue to review the decision of the United States

Court of Appeals for the Sixth Circuit.

* a

OPINIONS BELOW

The Opinion of the unreported decision of the district

court is attached at App. 14 to the Appendix of this

Petition. The Opinion of the Court of Appeals for the

Sixth Circuit is reported at 58 F.3d 1111 (1995), and

attached at App. 1 to the Appendix of this Petition.

3

JURISDICTION

The Court of Appeals for the Sixth Circuit entered its

judgment on July 12, 1995. The jurisdiction of this Court

is invoked under 28 USC §1254(1).

¢

CONSTITUTIONAL PROVISION INVOLVED

Plaintiff’s sole cause of action rests upon the Four-

teenth Amendment’s Procedural Due Process Clause in

reference to whether the next of kin has a constitutionally

protected property interest under State law in the corneas

of the deceased.

I. STATEMENT OF THE CASE

A. Introduction.

This case involves the review of a purely legal ques-

tion. As such, an extensive review of the facts involved is

not required. For the purpose of this Petition, only, these

Defendants rely upon the statement of facts set forth in

the Opinion of the Sixth Circuit Court of Appeals, as

follows:

Generally, the Plaintiffs are the next of kin of

deceased persons whose bodies were the object

of autopsies by Dr. Ronald Hines at the Saginaw

Community Hospital. Dr. Hines is a pathologist

who is employed on a contract basis by the

Saginaw and Tuscola County Medical Examiners

to perform autopsies. Dr. Hines’ diener, or assis-

tant, was the now-deceased Armando Herrera,

who, coincidentally, owned and operated the

Central Michigan Eyebank and Tissue Center

and was a certified “enucleator” — having the

ability to remove eyes and corneas without

causing damage to them. Herrera, as Hines’

diener, apparently had a business arrangement

with Saginaw and Tuscola Counties in which he

would pay all the County’s expenses in per-

forming the autopsies whenever corneas were

removed, and half those expenses when they

were not.

Pursuant to his duties assisting Dr. Hines, Her-

rera would sew up the body after Dr. Hines

finished the autopsy. Allegedly, he would also

remove the corneas and sometimes the eyeballs

at this time and sell them out of his eyebank. In

all of these cases, this was supposedly done

without the next of kin’s permission. According

to the district court’s Opinion, in some cases, the

next of kin were never asked, in other cases the

next of kin specifically refused their consent.

The Plaintiffs allege that this was authorized by

both Tuscola and Saginaw Counties.

Once the removal of the corneas or eyeballs was

discovered, the Plaintiff sued in state and fed-

eral court claiming both state and federal law

violations. After the cases in federal court were

consolidated, the Plaintiffs agreed to the dis-

missal of all federal claims except their claim

that they were deprived of their Fourteenth

Amendment right to procedural due process

when the alleged state actors removed the dece-

dent’s eyeballs or corneas. (Appendix, pp. 3-4).

B. Legal Proceedings Below.

1. The District Court Proceedings.

Shortly after the suit was filed, and the cases consoli-

dated by the Honorable Robert Cleland, United States

District Court, Eastern District, Northern Division Michi-

gan, these Defendants moved for dismissal of the Plain-

tiffs’ remaining claim of procedural due process pursuant

to Fed. R. Civ. P. 12(b)(6), arguing that under Michigan

law, the next of kin does not have a constitutionally

protected property interest in the corneas of the

deceased, and therefore, the due process claim must be

dismissed.

At oral argument in the district court, and as prop-

erly recognized by Judge Cleland in his Opinion, Plain-

tiffs conceded that the survival of their cause of action

depended upon the Court’s interpretation of Brotherton v.

Cleveland, 923 F.2d 472 (6th Cir., 1991). (Appendix, p. 18).

In Brotherton, the Sixth Circuit held that the aggregate of

rights under Ohio law formed the basis of a constitu-

tionally protected property interest in the deceaseds’ cor-

neas by the next of kin. In his analysis, Judge Cleland

concluded that the Brotherton decision rested upon the

three legal principles found under Ohio law:

(1) Ohio Revised Code §2108.02(b), as part of

the Uniform and Anatomical Gift Act;

(2) The decision in Everman v. Davis, 54 Ohio

App. 3d 119 (1989), which in turn rested on

Ohio Revised Code §313.14; and

(3) The decision in Carney v. Knollwood Ceme-

tery Association, 33 Ohio App. 3d 31 (1986),

(allowing a claim for disturbance of a body

of a deceased relative). Brotherton, 923 F.2d

at 482.

Thereafter, Judge Cleland tested these three princi-

ples and found that Michigan law expressly rejected the

argument proffered by Plaintiffs that the next of kin had a

constitutionally protected property interest in a

deceased’s corneas, concluding:

Michigan has expressly declined to recognize the

property interest in the body of a deceased per-

son, but rather has carefully chosen to provide

recovery and tort only when the right of burial

of a deceased person without mutilation is vio-

lated . . . Since Michigan does not recognize any

property interest in the deceased body of

another, either expressly or implicitly, there can

be no protection of that interest under the due

process clause of the Fifth Amendment that

would give rise to a cause of action under 42

USC §1983. (Emphasis added). (Appendix, pp.

25-26).

2. The Decision of the Sixth Circuit Court of

Appeals

The Sixth Circuit also recognized that Plaintiffs’

claims would rise or fall upon the Brotherton decision,

and an analysis of Michigan law. The Court agreed that

Plaintiffs were required to satisfy the elements identified

by Judge Cleland. However, in reviewing the same case

law and statutes reviewed by Judge Cleland, the Court

concluded that the next of kin has a constitutionally

protected property interest in the deceaseds’ corneas.

(Appendix, pp. 9-10). Recognizing that no Michigan case

or statute expressly held that a next of kin has a constitu-

tionally protected property interested in the deceaseds’

corneas, the Sixth Circuit concluded that what is relevant

for the Brotherton analysis is that the right to possess the

body exist, not that the right was grounded in a Michigan

~ Statute or in the common law of Michigan. Therefore, the

Court concluded that under Michigan law, the next of kin

has a constitutionally protected property interest in the

corneas of the deceased, and therefore, may bring a con-

stitutional claim under the due process clause. (Id., p. 12).

+

REASON FOR GRANTING THE PETITION

This case has much larger dimensions than its effect

on Michigan law. Currently, we are in the midst of a

revolution in medicine. Transplantation of human organs

occur on an hourly rate, with startlingly success. Heart

and kidney transplants are now common operations. Cor-

nea transplantation has enabled those previously blind to

see for the very first time in their lives. As transplanta-

tion has gained medical and social recognition, the need

for legal consistency and rationality in defining the rights

which attach to the human organs gains greater impor-

tance on a national level as medical science perfects the

techniques of transplantation and finds new uses for

cadaveric tissues.

The common law principle adopted by the Michigan

Supreme Court, Michigan’s highest Court of last resort, in

1899, of “no property interest in dead bodies,” and the

subsequent legislative enactments of “Presumed Con-

sent,” permitting the gifting of corneas without notifying

relatives, follows the federal policy of encouraging free

access to organs and prohibiting their sale. These Defen-

dants respectfully submit that at the very least, until

there is more substantial uniformity in the law, a Court

should refrain from discovering a new constitutionally

protected property interest in laws of the states, where in

this case, none exist. Clearly, the decision of the Sixth

Circuit in the instant matter conflicts with Michigan law,

the law of other circuit and state courts, and its impact

can only confuse the legal determinations which bear on

this very important issue.

This case is timely and presents a rare opportunity to

provide guidance in the law, and to recognize the

national importance of the same. Moreover, the decision

below is erroneous and the issues that it addresses have a

national impact.

A. The Decision of the Sixth Circuit Court of

Appeals Conflicts with the Law of the State of

Michigan.

1. The Brotherton Decision.

On or about February 15, 1989, Stephen Brotherton

was found “pulseless” in an automobile and taken to the

Bethesda Hospital in Cincinnati, Ohio, where he was

pronounced dead on arrival. Brotherton, supra, 923 F.2d at

478. At the hospital, Deborah Brotherton, the wife of the

decedent, was asked to make an anatomical gift. (Id.) She

refused, knowing that Stephen Brotherton had strong

feelings against such gifts. (Id.) The hospital recorded her

refusal in its “report of death.” (Id.)

Because suicide was suspected as the cause of death,

an autopsy was performed by the Hamilton County Coro-

ner. Brotherton, supra, 923 F.2d at 478. The coroner called

in a technician from the Cincinnati Eye Bank to remove

the corneas from the decedent’s eyes pursuant to Ohio

law. (Id.) It was the custom and policy of the Hamilton

County Coroner’s office not to request the decedent's

consent prior to removing corneas. (Id.) Deborah Brother-

ton was not informed of this action until she read the

autopsy report. (Id.)

On behalf of herself, her children and a class of

persons similarly situated, Deborah Brotherton filed suit

under 42 USC §1983 in Federal District Court, alleging

that her husband’s corneas had been taken without due

process of law, and, in violation of the Equal Protection

Clause. (Id.) The district court dismissed the Complaint

on both grounds. Brotherton v. Cleveland, 733 F.Supp. 56

(SD, Ohio, 1989). Relying on Ohio case law and the rele-

vant section of the Ohio code, the district court held that

Ms. Brotherton was not deprived of a “property” interest

because she only had the limited right to donate her

husband’s organs. (Id. at 59). The Court also dismissed

the equal protection claim, holding that a person subject

to autopsy did not compose a suspect class and that the

rights of possession and consent in regard to a decedent's

corneas did not constitute a fundamental right. (Id. at

59-60). Moreover, the Court examined state laws as a

source of property rights and concluded that Ohio

rejected the contention that “a surviving custodian has a

property right in the body of a decedent.” (Id. at 58).

The Sixth Circuit Court of Appeals reversed the deci-

sion, holding that Ohio recognized rights of the next of

kin in the body of a dead relative, which in aggregate

rose to the level of a “legitimate claim of entitlement.”

The Court’s decision rested on three legal principles of

Ohio law: (1) The Ohio Rev. Code §2108.02(B); (2) The

decision of Everman v. Davis, 54 Ohio App. 3rd 119 (1989),

which rested on Ohio Rev. Code §313.14; and (3) The

decision of Carney v. Knollwood Cemetery Association, 33

Ohio App. 3rd 31 (1986) (allowing a claim for disturbance

of the body of a deceased relative). Brotherton, supra, 923

F.2d at 482. The case was then remanded to the District

Court for further proceedings.

On remand, the District Court, again, dismissed

plaintiff’s cause of action, this time on the basis of quali-

fied immunity. (Brotherton v. Cleveland, 968 F.2d 1214

(1992) (unpublished decision of the Sixth Circuit Court of

Appeals, Text on Westlaw). On appeal, the Sixth Circuit

10

affirmed the dismissal of one party on the basis of quali-

fied immunity, affirmed the dismissal of the hospital as it

did not act “under color of state law” for the purposes of

§1983, and reversed the District Court’s decision against

one physician on the basis of his official capacity, as well

as to an eye bank’s involvement as a state actor.

2. Under Michigan Common Law, the Next of

Kin Does Not Have a Property Interest in a

Decedent’s Corneas.

It is expressly stated in Michigan law, through its

appellate decisions, that there is no constitutionally pro-

tected property right of the next of kin in a decedent's

corneas, Deeg v. City of Detroit, 345 Mich 371, 375; 76

N.W.2d 16 (1956), and that the common law tort of inter-

ference with the right of burial of a deceased person

without mutilation is not of “constitutional dimension.”

Tillman v. Detroit Receiving Hospital, 138 Mich. App. 683,

316 N.W.2d 275 (1985). The Sixth Circuit clearly erred in

its analysis of Michigan case law to reach the contrary

result.

The Michigan common law rule is grounded in the

common law axiom that no property rights exists in the body

of a deceased by the next of kin. History tells us that in

England, soon after the Norman Conquest of 1066, the

Church took over jurisdiction of the place of burial and

the body of the dead because:

(1) The Church was best prepared to prevent

sacrilege to the dead bodies;

(2) The Church owned the burial ground; and

11

(3) The Church had original probate jurisdic-

tion after death. Kuzenski, “Property in Dead

Bodies,” 9 Marq. L.R. 17, at 18 (1924).

So complete was its jurisdiction over dead bodies

that the common law Courts of England continually

refused to recognize that they had any jurisdiction what-

soever.

But, though the heir has a property in the monu-

ments and escutcheons of his ancestors, that he

has none in their bodies or ashes; nor can he

bring any civil action against such as indecently,

at least if not impiously, violate and disturb

their remains when dead and buried. 2, BLACK-

STONE COMMENTARIES, 429 (1756).

Following the English common law maxim, the Mich-

igan Supreme Court adopted the rule that there is “no

property right in a dead body,” in Keys v. Konkel, 119

Mich. 550; 78 N.W. 649 (1899). In the same term, the Court

considered Doxtator v. Chicago and West Railroad Co, 120

Mich. 596; 79 N.W. 922 (1899), wherein the question pre-

sented was whether there existed a tort of interference

with the deceased body parts of the next of kin. The

Doxtator Court held that such a tort exists, but given the

fact that the Defendant had no knowledge of any direc-

tion as to the disposition of the amputated parts of the

deceased, and was not, in fact, in error as to an unwar-

ranted disposition of them, no liability could attach.

The conclusion that no constitutionally protected

property interest in the body of the deceased through the

next of kin was affirmed by the Michigan Supreme Court

in Deeg v. City of Detroit, 345 Mich. 371; 76 N.W.2d 16, 19

(1956). In Deeg, the widow of the spouse, whose death

12

occurred as a result of a traffic accident, learned that after

her husband’s body was taken to a hospital, and declared

dead, certain organs were removed and sent to a labora-

tory for analysis. The laboratory analysis resulted in the

destruction of the removed organs, which, resulted in a

lawsuit alleging the mutilation of body parts of the

spouse’s body without her consent was in violation of her

right to the possession and value of the body. While

acknowledging that a tort existed for interference with

mutilation of a dead body, the Court reaffirmed that the

common law principle established in Keys, and reaffirmed

in Doxtator, remained: there exists to property interest in a

dead body. (Id.)

Subsequent decisions of the Michigan Court of

Appeals reaffirmed this point in recent years. See Allinger

v. Kell, 102 Mich. App. 798; 302 N.W.2d 576 (1981); rev. on

oth. gr. 411 Mich. 1053; and Tillman v. Detroit Receiving

Hospital, 138 Mich. App. 683; 360 N.W.2d 275 (1984)

(“While there is ‘no property right in the next of kin to a

dead body,’ the right to possess her burial does not exist,

but this right does not rise to constitutional dimensions.” |

Citing Deeg v. Detroit, supra (Emphasis added).

In the instant case, the Sixth Circuit Court of Appeals

erroneously interpreted the aforementioned cases to con-

clude that a constitutionally protected property right

exists in the body of a deceased. The Court reasoned that

because a tort action exists, that being, interference or

mutilation of a deceased body, a property right must also

exist. Obviously, at the very least, the grounds for recov-

ery — property rights in the corneas and familial interests

ere

13

therein, required the Court to employ questionable con-

cepts in order to allow recovery. As noted by Deans

Prosser and Keeton in their classic treatise:

It seems reasonably obvious that such “prop-

_ erty” is something evolved out of thin air to

meet the occasion, that in reality the personal

feelings of the survivors are being protected,

under a fiction likely to deceive no one but a

lawyer. Prosser and Keeton, TORTS, 63 (5th Ed,

1984).

Clearly, the Sixth Circuit’s decision conflicts with this

Court’s pronouncement in Paul v. Davis, 424 U.S. 693, 47

L. Ed. 2d 405; 96 S. Ct. 1155 (1976), that not every tort by

a state official is a constitutional violation, and that the

Fourteenth Amendment is not a “font of tort law to be

superimposed upon whatever systems may already be

administered by the states.” Id. at 700-701.

Plaintiffs claim is simply a tort action to recover for

mental anguish based upon alleged intentional actions of

the Defendants which may have caused them distress.

This tort is recognized in Michigan law, and Plaintiffs

choose not to pursue it. Rather, they sought a constitu-

tional basis, and created the fiction that the corneas gave

rise to a constitutionally protected property interest. As

none exist under Michigan common law, and that the

fiction of “property” was simply “evolved out of thin

air,” by the Sixth Circuit, it is very clear that Certiorari

should be granted, or summary reversal provided in this

matter.

14

3. The Michigan Statutory Law is Not the

Source of a Constitutionally Protected

Property Interest.

The Sixth Circuit Court of Appeals also mistakenly

relied upon the Uniform Anatomical Gift Act, MCL |

333.10101, et al.; MSA 14.15 (10101), et al., and the Medi- |

cal Examiners Act, MCL 52.111, et al.; MSA 5.935, et al., to

conclude that there exists a statutory basis of the next of

kin having a constitutionally protected property interest

in the corneas of the deceased.

(a) The Uniform Anatomical Gift Act.

The Uniform Anatomical Gift Act (UAGA) provides a

model for state laws which encourage and regulate the

donation of organs. 1987 UAGA §]1(7), (8)(a) (U.L., at 8

Supp. 1990). All 50 states, including the District of

Columbia, Guam and the Virgin Islands, have adopted

some form of the UAGA. The intent of the Act is to

standardize and facilitate the donation of organs for med-

ical transplantation, research and educational purposes.

(UAGA, 8(a) ULA at 2-4) (Supp. 1991). Key provisions

describe: (1) who may be donors; (2) what parties are

authorized as donees; and (3) the respective rights, duties

and procedures to be followed in making and receiving

anatoniical gifts. See MCL 333.10101, et al.; MSA 14.15

(10101), et al. Paradoxically, the provisions of the UAGA

have been used as rationale for argument against the

recognition of property rights in human remains. In

Brotherton, for example, the Honorable Charles Joiner,

dissenting, noted that the Ohio enactment of the UAGA

only provides the procedural protocol for organ donation.

15

Brotherton, supra, 923 F.2d at 484. In providing immunity

for donees acting in good faith, Judge Joiner concluded

that the Act expresses “no intention of disturbing the rule

of law that there is no property right in dead bodies.”

(Id.).

Michigan has also enacted a portion of the Uniform

Anatomical Gift Act providing for “presumed consent of

the removal of corneas,” which was established to accom-

modate the failure of the UAGA to adequately meet the

demand for organs through voluntary donation. MCL

333.10202; MSA 14.15 (10202). In addition to increasing

the supply of organs, “presumed consent” laws provide a

humane alternative to consensual donation by not dis-

turbing the family during the difficult times surrounding

the death of a loved one.

In the instant case, these Defendants complied with

the aforementioned statute in allegedly removing dece-

dents’ corneas. The autopsies were authorized by law due

to the circumstances surrounding the decedents’ deaths.

These Defendants provided unopposed Affidavits to the

district court in support of their Motion to Dismiss,

which apparently was not considered by the Sixth Cir-

cuit, that they had no knowledge of any objection to the

said removal by the decedents’ next of kin. The removal

did not alter these decedents’ post-mortem facial appear-

ance. Thus, Defendants were in compliance with the

applicable statute in relation to their conduct in this

matter and, therefore, are not liable to Plaintiffs. As such,

Plaintiff’s present claims were properly dismissed by the

district court for failure to state a claim upon which relief

could be granted pursuant to Fed. R. Civ. P. 12(b)(6).

16

In any event, these Defendants are immune from

Plaintiffs’ claim based on the aforementioned statute for

wrongfully allowing decedents’ corneas to be removed,

pursuant to the immunity granted in MCL 333.10203;

MSA 14.15 (10203) and MCL 33.10108; MSA 14.15 (10108),

which states as follows:

The County Medical Examiner, the Assistant

County Medical Examiner, a bank or storage

facility, or any person authorized by the County

Medical Examiner to remove the cornea of a

deceased person shall not be liable in civil action if

it is subsequently alleged that authorization for the

removal was required of the next of kin. MCL

333.10203; MSA 14.15 (10203) (Emphasis added).

t + t

A person, including a hospital, who acts in good

faith in accordance with the terms of this part

are with the anatomical gift laws of another

state or a foreign country is not liable for damages

in any civil action or subject to prosecution in any

criminal proceedings for the Act. MCL 333.10108;

MSA 14.15 (10108) (Emphasis added).

According to these provisions, and the above arguments,

clearly, the Sixth Circuit was in error in relying upon the

Uniform Anatomical Gift Act to find a property interest

in the decedents’ corneas. Quite clearly, the Uniform Ana-

tomical Gift Act simply provides a procedure for individ- |

uals to donate body parts. Plaintiffs’ stipulation to

dismiss their claim under the Uniform Anatomical Gift

Act signifies their recognition of this principle. Clearly,

this Act cannot be used to support their theory of a

constitutionally protected property interest in the corneas

of the next of kin either.

17

(b) The Medical Examiners Act.

The Michigan Legislature has enacted the Medical

Examiners Act, which sets forth a comprehensive set of

rules to regulate the powers and duties of medical exam-

iners acting in the State of Michigan. See, MCL 52.111, et

seq.; MSA 5.935 et seq. The portion the Sixth Circuit

relied on, MCL 52.205; MSA 5.935(5), provides as follows:

(4) The Medical Examiner must identify the

decedent, and notify the next of kin as soon as

possible;

The Court concluded that based upon the above-

quoted provision, the Medical Examiners Act implies that

the next of kin has a right to the decedents’ relative body.

(See Appendix, p. 11). Quite clearly, the Court's inter-

pretation of the Medical Examiners Act in the instant case

creates a right where none exists. A comparison of the

Brotherton decision enforces this argument. In Brotherton,

the Court reviewed the Ohio Medical Examiners Act,

which provides as follows:

313.14 Notice to Relatives; Disposition of Prop-

erty.

The Coroner shall notify any known relatives of

a deceased person who meets death in the man-

ner described by Section 313.2 of the Revised

Code, by letter or otherwise. The next of kin, other

relatives, or friends of the deceased person in the

order named, shall have prior right as to the disposi-

tion of the body of such deceased person. (Emphasis

added). Ohio Rev. Code 313.14.

18

Clearly, the Ohio Legislature contemplated, and

enacted a law providing that the next of kin has a prop-

erty interest in the deceased person’s body. The Michigan

Legislature, however, enacted a notice provision which

requires the Examiner to notify the next of kin that a

body is in their possession. Indeed, the Michigan Legisla-

ture has not created a property interest in the body, as it

is inconsistent with the common law of the state. As such,

the Sixth Circuit erred in reliance upon the Uniform

Anatomical Gift Act, and the Michigan Medical Exam-

iners Act to find that a constitutionally protected prop-

erty interest exists under Michigan law.

B. The Decision of the Sixth Circuit Conflicts with

Decisions of Other Circuit and State Courts,

and the Grant of Certiorari will Likely Produce

Guidance to Other Courts Throughout This

Nation.

There are two basic questions concerning the pro-

cedural protection for property. First, when is govern-

mental depriving someone of property, i.e., state action.

Second, what constitutes “property.” The more difficult

issue relates to the definition of property.

The definition of property since this Court’s decision

in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33

L. Ed. 2d (1972), has centered on the concept of “entitle-

ment.” No systematic method of identifying property

interest has been decided by this Court since Roth. Rather,

this Court has taken a case-by-case approach labeling

“property” as sufficiently important interest recognized

by state law. See, Logan v. Zimmerman Brush Co, 455 US.

19

422, 430; 102 S. Ct. 1148; 71 L. Ed. 2d 265 (1982) (“The

hallmark of property . . . is an individual’s entitlement

grounded in state law, which cannot be removed for

cause. Once this characteristic is found, the types of inter-

est protected as property are varied.”) While state law

may define an interest as “property,” the viability of an

individual’s expectation in the interest must be indepen-

dently examined to determine if there exists a legitimate

claim of entitlement protected by the due process clause.

Memphis Light v. Craft, 439 U.S. 1, 9; 98 S. Ct. 1554; 56 L.

Ed. 2d 30 (1978).

Federal appellate courts have heard several § 1983

claims based on allegations of state deprivation of a

survivor rights in a relative’s remains, and concluded that

a property interest does not exist under state law. In

Fuller v. Marx, 724 F.2d 717 (8th Cir., 1984), the widow

and children of a deceased prisoner sued the State Medi-

cal Examiner for negligent destruction of organs during

the performance of an autopsy. The Plaintiff’s claimed

that the incineration of the decedent’s organs deprived

him of property rights. The Court held that although

Arkansas law did recognize a “quasi-property” right in

the corpse, the survivors had the ability to request preser-

vation of the organs under state procedures, and there-

fore, they were not deprived of due process. Fuller, supra,

724 F.2d at 719. Thus, the recognition of a “quasi-prop-

erty” right under state law is only the threshold issue in a

constitutional claim of deprivation without due process.

Similarly, in Arnaud v. Odom, 870 F.2d 304 (Sth Cir.,

1989), cert. den. 493 U.S. 855 (1989), parents of dead

infant twins claim that a County Coroner’s experiments

on the bodies of the children, in order to prepare himself

20

for expert testimony on another matter, constituted a

deprivation of their property rights. After examining the

statutory and common law of Louisiana, the Fifth Circuit

Court of Appeals determined that the state recognized a

“quasi-property” right of survivors in the remains of

their deceased relatives. However, the Court held that the

state provided adequate remedies through existing tort

claims to satisfy post-deprivation due process require-

ments. Arnaud, supra, 870 F.2d at 309. As in Fuller, the

Court in Arnaud relied on state law to determine the

threshold issue of whether a “quasi-property” right in a

corpse exists.

Further, in Lawyer v. Kernodle, 721 F.2d 632 (8th Cir.,

1983), the Court of Appeals heard a husbands’ challenge

of the results of an autopsy performed on his deceased

wife. Part of his claim included an alleged deprivation of

his property rights pursuant to 42 USC §1983. The Court

reviewed Missouri law and held that the duty to bury the

dead did not confer a property right in the ordinary sense

of the word, but merely allowed possession and control

of the body for the purpose of a decent burial. Lawyer,

supra, 721 F.2d at 634. Subsequently, the Court affirmed

the dismissal of the constitutional claim because the

Plaintiff failed to show a deprivation of any property

interest, or that the Defendant physician had acted out-

side the scope of the statutory discretion.

In two other cases which are factually similar to the

instant case, state courts have heard challenges to the

statutorily authorized taking of corneal tissue during an

autopsy. In Florida v. Powell, 497 S.2d 1188 (Fla., 1986),

cert. den. 481 U.S. 1059 (1987), survivors challenged the

constitutionality of a former presumed consent statute

21

which authorized a medical examiner to remove a dece-

dent’s corneas during an autopsy, unless he had knowl-

edge of specific objections to his actions. The Florida

statute parallels the Michigan one in the instant case. The

Florida Supreme Court held that the statute was ration-

ally related to the state’s interest in restoring sight to the

blind. Powell, supra, 497 S.2d at 1190-1192 (“All authori-

ties generally agree that the next of kin have no property

right in the remains of a decedent.”) See also, Fla. Stat.

Ann. §732.9185 (1992 Supp.). The Powell Court concluded

that the survivors had no property right in a decedent's

remains; and thus, they could not claim a deprivation

under the State Constitution.

Further, in Georgii Lions Eye Bank v. Lavant, 255 Ga.

60, 335 S.E.2d 127 (Ga., 1985), cert. den. 475 U.S. 1084

(1986), Georgia’s presumed consent statute withstood a

due process challenge based on the taking of a decedent's

infant corneas without notice or consent to the parents.

Although Georgia recognized a quasi property right in a

decedent's body, the right was limited to possession and

control by surviving relatives. Thus, it was further lim-

ited by the power of the legislature to make or amend the

state’s common law. As such, the Court held that the

survivor’s right in the corpse did not rise to constitu-

tional dimensions. Lavant, supra, 335 S.E.2d at 127-129.

(“There is no constitutionally protected right in a dece-

dent’s body ... ”).

The foregoing review of the precedent rejecting prop-

erty rights in corneas clearly reveals the recognition of

the English common law principle that there is no prop-

erty interest of the next of kin in the decedent’s body. The

need for judicial consistency in maintaining this rule has

22

practical significance, which is grounded in the increas-

ing importance of human tissue to modern medicine. As

demonstrated above, the Sixth Circuit’s opinion in this

case finding a new property interest under Michigan law,

conflicts with Michigan case and statutory law, creates a

split of authority, and presents substantial obstacles in

maintaining a consistent and uniform policy goal of

encouraging increased organ supplies.

C. The Question Presented is Important as the

Sixth Circuits’ Decision Will Have an Adverse

Impact on the National Law if it Stands.

The key rationale of the recognition against property

rights in the next of kin rests in the recognition of a

significant organ shortage needed for medical transplan-

tation, research, and experimentation. The “encouraged

volunteerism” propounded by the enactment of the

UAGA has generally been acknowledged as a failure.

Congress and the Michigan Legislature provided a better

solution to the shortage by denying property status to

cadavers and mandating the conscription of organs

through presumed consent laws. The decision to autho-

rize the use of organs is most often made at the emo-

tionally charged period surrounding the death of a loved

one. Arguably, the likelihood of inducing a mourning

family to permit the taking of a loved one’s corneas at his

or her death would be no greater than with monetary

incentives than it currently is with the request for dona-

tion at this painful time.

23

Presently, the system of allocation, which is governed

by the National Organ Transplant Act and the Uniform

Anatomical Gift Act, relies on certain scientific and ethi-

cal considerations as criteria for distributing organs. If

these standards were replaced by the principles of the

marketplace, the access to organs will become controlled

by a person’s ability to pay. Such problems have recog-

nized by Congress, resulting in the ban of the sale of

organs. See 42 USC §274e (The National Organ Transplant

Act).

Although provisions of the UAGA were cited as stat-

utory evidence for the recognition of property rights by

the Sixth Circuit in the instant case, the primary goal of

the Act was to encourage volunteerism by standardizing

and facilitating organ donation procedures among the

states. In addition, the 1987 revision of the UAGA

included an amendment prohibiting the sale or purchase

of body parts, thereby reiterating the basic content of the

NOTA. These enactments provide the primary public pol-

icy arguments against markets in human organs through

a full recognition of property rights in dead bodies.

More fundamentally, the arguments against property

rights in cadavers are framed by the moral and ethical

repugnance to the idea of marketing in bodies. The com-

mon law theory adopted by the Michigan Supreme Court

in Keyes, and its continued viability, reflects the tradi-

tional values mainly of respect and reverence to the dece-

dent’s body, or sympathy to the survivor, in solely

permitting a tort cause of action to proceed, rather than

finding a property interest in the decedent’s body. Till-

man, supra. These values are derived from the philosophi-

cal principles and moral arguments against having

24

property rights in human body. Early precedence recog-

nizing some form of property ownership of the human

body, such as slavery, Dickens, The Control of Living Body

Materials, 27 U. Toronto L.J. 142, 144 (1977), the physical

attachment or imprisonment of a debtor (Id.), and view-

ing one’s wife as chattel, Scott, The Body of Property, 1981,

p. 26, are no longer legally or philosophically acceptable

theory. See also, Hardiman, Toward the Right of Commer-

ciality: Recognizing Property Rights in the Commercial Value

of Human Tissue, 34 S. Cal. L. Rev. 207, 224 (1986). The

same moral thought reflects the state of the law in Michi-

gan, and a majority of others.

Incidents of the poor offering to sell body parts high-

light these arguments against finding property interest in

the human body. The ideals of justice require that one in

need should not be deprived of life merely because of an

inability to afford an organ. Even those proponents of

recognition of property rights argue against the market-

ing of organs, and tissues because it would contradict the

principles of personal anatomy and human dignity.

The foregoing principles and policies each purport to

enhance the supply of organs available for medical uses.

This Court will play a pivotal role in defining the sur-

vivor’s rights in the human body, significantly impacting

its use as a medical resource. In Brotherton, and in the

instant case, the Sixth Circuit erroneously recognized an

entitlement in a decedent’s corneas, which had its source

outside of state law. An analysis of both these decisions

will lead this Court to the conclusion that the Sixth Cir-

cuit erred in defining property for constitutional adjudi-

cation, and did not contemplate the relevant societal

25

policies affecting future health and welfare for those who

might benefit from the advances of medical technology.

Ill. CONCLUSION

._These Defendants submit that the Sixth Circuit

clearly erred in its analysis and conclusion finding a

constitutionally protected property interest in a dece-

dent’s corneas. The real basis for recovery in these

autopsy cases is that the surviving spouse alleged that

they suffered mental anguish as a result of a purported

intentional act of the Defendants, from which the result

might have been anticipated by them, and as a result,

they request compensation. A finding of a constitu-

tionally protected property interest in the deceased

spouses’ corneas, through the next of kin, however,

clearly is not supported by the law of the state of Michi-

gan, and contrary to national policy.

Based upon the foregoing, these Defendants respect-

fully request this Honorable Court to enter an Order

granting Defendant's Petition for Writ of Certiorari for

full briefing and oral argument on the matter. Alter-

natively, these Defendants request this Court to sum-

marily reverse and vacate the decision of the Sixth Circuit

26

Court of Appeals’ decision in this matter, and reinstate

the decision of the lower court below.

Respectfully submitted,

Danie. P. Dacron (P44056)

Counsel of Record

KENNETH G. GALICA (P27275)

Danie. P. Datton (P44056)

JOHNSON, Rosati, GALICA, SHIFMAN,

LABarGE, ASELTYNE, SUGAMELI

& Frevp, P.C.

34405 W. Twelve Mile Rd., Ste. 200

Farmington Hills, MI 48331

(810) 489-4100

Counsel for Petitioners County of

Saginaw Dr. M.B. Goldberger

Dated: September 12, 1995

App. 1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1995 FED App. 0205P (6th Cir.)

File Name: 95a0205p.06

No. 94-1451

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Diane M. WHALEY, et al., WILLIAM)

E. Jones, et al., CHRISTINE M.

TUNNEY, et al., RrTA SHARRARD,

LuciLLte Jones Miter, et al.,

GEORGE SAUNDERS, et al.,

Plaintiffs-Appellants,

On AppeEAL from the

United States

District Court for

the Eastern District

i of Michigan

me eee ee Nee ee ee”

County oF Tuscota through its)

governing body, Tuscola County )

Board of Commissioners; )

ARMANDO Herrera, Executive )

Director of Mid Regional Tissue )

Center; ARMANDO HERRERA, )

individually, and d/b/a Central )

Michigan Eye Bank; Mip )

REGIONAL TissuE CENTER, a )

Michigan Non-Profit corporation)

SAGINAW COMMUNITY HospITAL a_)

county public hospital; Hersert )

L. Nicc, M.D., Individually; )

RONALD G. Hines, M.D.,

Pathologist for Tuscola County; )

IRVING M. Raser, M.D., A )

Pennsylvania professional )

corporation; County oF SAGINAW; )

)

App. 2

M.B. Go psercer, D.O.,

Individually and as Saginaw

County Chief Medica! Examiner;

James W. BAKER, PERSONAL

REPRESENTATIVE FOR THE ESTATE OF

ARMANDO HERRERA, DECEASED,

DEFENDANTS-APPELLEES,

LANKENAW HospITAL, a

Pennsylvania non-profit

corporation; CHRISTOPHER C.

Taytor, individually, and as a

former Tuscola County

Commissioner,

i

Defendants.

Decided and Filed July 12, 1995

Before. BROWN, BOGGS, and NORRIS, Circuit

Judges.

BAILEY BROWN, Circuit Judge. The plaintiffs

brought these § 1983 actions claiming that the defendants

violated their Fourteenth Amendment procedural due

process rights by removing the corneas or eyeballs of

their recently deceased relatives. The interesting question

raised in this consolidated appeal is what relief the Con-

stitution might provide when a state actor steals the eyes

of a dead man. Specifically, we must decide whether

Michigan law provides the next of kin with a constitu-

tionally protected property interest in a deceased rela-

tive’s body, including the eyes. The district court thought

that it did not and dismissed the plaintiffs’ claims. We

App. 3

disagree, REVERSE the court’s decision, and REMAND

for further proceedings. !

I.

Because these cases present a purely legal question,

we need not discuss the facts in great detail. Generally,

the plaintiffs are the next of kin of deceased persons

whose bodies were the object of autopsies by Dr. Ronald

Hines at the Saginaw Community Hospital.? Dr. Hines is

a pathologist who was employed on a contract basis by

the Saginaw and Tuscola County Medical Examiners to

perform autopsies. Dr. Hines’s diener, or assistant, was

the now-deceased Armando Herrera who, coincidently,

owned and operated the Central Michigan Eye Bank and

Tissue Center and was a certified “enucleator” — having

' Several defendants ask us to affirm the district court's

judgment on an alternative basis. Dr. Raber of Philadelphia,

who allegedly bought eyes from Herrera (whose estate is a

defendant), asks us to dismiss the case against him because the

district court lacked personal jurisdiction. Dr. Raber notes that

the district court dismissed Lankenaw Hospital, which he con-

tends was the actual purchaser of the eyes, for that very reason.

The plaintiffs argue that Lankenaw Hospital merely mailed Dr.

Raber’s check, and that Dr. Raber was indeed responsible for

purchasing eyes. Dr. Nigg (now deceased) and Tuscola County

ask us to grant summary judgment to them because Tuscola

County had no practice or procedure authorizing the removal of

corneas. The plaintiffs argue that they did have such a policy.

The district court did not address these issues in its decision

dismissing these cases, which it can do on remand. We therefore

do not address these issues on appeal.

2 In the case of the Saunders plaintiffs, the body was autop-

sied at Trenerry’s Funeral Home.

App. 4

the ability to remove eyes and corneas without causing

damage to them. Herrera, as Hines’s diener, apparently

had a business agreement with Saginaw and Tuscola

Counties, in which he would pay all the counties’

expenses in performing the autopsies whenever corneas

were removed, and half those expenses when they were

not.

Pursuant to his duties assisting Dr. Hines, Herrera

would sew up the body after Dr. Hines ‘inished the

autopsy. Allegedly, he would also remove the corneas

and sometimes the eyeballs at this time and sell them out

of his Eye Bank. In all of these cases, this was supposedly

done without the next of kin’s permission: According to

the district court’s opinion, in some cases the next of kin

were never asked, in other cases the next of kin speci-

fically refused to give their consent. The plaintiffs allege

that this was authorized by both Tuscola and Saginaw

Counties.

Once the removal of the corneas or eyeballs was

discovered, the plaintiffs sued in state and federal court

claiming both state and federal law violations. After the

cases in federal court were consolidated, the plaintiffs

agreed to the dismissal of all federal claims except their

claim that they were deprived of their Fourteenth

Amendment right to procedural due process when the

alleged state actors removed the decedents’ eyeballs or

corneas. After hearing arguments, the court dismissed

that claim under Federal Rule of Civil Procedure 12(b)(6),

holding that Michigan law did not create an interest in a

dead body sufficient to qualify as a “property interest”

under the Fourteenth Amendment’s Due Process Clause.

The plaintiffs appealed.

App. 5

Il.

The Fourteenth Amendment only prohibits states

from depriving a person of life, liberty, or property with-

out due process of law, U.S. Const. amend. XIV, § 1. It

follows, then, that if state actors, such as the defendants

are alleged to be, do not infringe on the life, liberty, or

property of the plaintiffs, there can be no due process

violation. This case deals with the “property” portion of

the clause, i.e., whether the next of kin have a property

interest in the body, including the eyes, of a deceased

relative.

The existence of a property interest for due process

purposes depends in large part on state law. According to

the Supreme Court:

Property interests, of course, are not created by

the Constitution. Rather, they are created and

their dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law - rules or understand-

ings that secure certain benefits and that sup-

port claims of entitlement to those benefits.

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Also,

““property’ interests subject to procedural due process

are not limited by a few rigid, technical forms. Rather,

‘property’ denotes a broad range of interests that are

secured by ‘existing rules or understandings.’ ” Perry v.

Sindermann, 408 U.S. 593, 602 (1972) (quoting Roth, 408

U.S. at 571-72, 577). These rules and understandings may

in turn create a “legitimate claim of entitlement,” worthy

of due process protection. Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 9 (1978). Finally, whether a

substantive interest created by the state rises to the level

App. 6

of a constitutionally protected property interest is a ques-

tion of federal constitutional law. Id. In making this deter-

mination, courts must look beyond the law’s

nomenclature and to its substance.

All parties agree that the existence under Michigan

law of a constitutionally protected property interest in a

dead relative’s body turns on our opinion in Brotherton v.

Cleveland, 923 F.2d 477 (6th Cir. 1991), where we found

that such a property interest exists under Ohio law. The

facts of Brotherton are similar to the facts here. Steven

Brotherton was found dead and taken to the hospital. His

wife refused to consent to the use of his body parts for

transplant purposes. The coroner’s office, pursuant to an

established procedure, nevertheless removed Brother-

ton’s corneas during the course of the autopsy. Upon

discovery of this fact, his wife brought an action in fed-

eral court, alleging that her husband’s corneas were

removed without due process of law. As in this case, the

district court dismissed the claim under Federal Rule of

Civil Procedure 12(b)(6). We reversed, holding that Ohio

law created a “legitimate claim of entitlement” and thus a

property interest in a dead relative’s body. Id. at 482.

In making this determination, we first noted that,

traditionally, “property” is conceptualized as a bundle of

rights which includes “the rights to possess, to use, to

exclude, to profit, and to dispose.” Id. at 481. We then

examined Ohio law for indicia of these types of rights in

a dead relative’s body, and noted: (1) that Ohio’s version

of the Uniform Anatomical Gift Act, Onto Rev. Cope

§ 2108.02(B), grants the next of kin the right to control the

disposal of the body; (2) that the Ohio Court of Appeals

decision in Everman v. Davis, 561 N.E.2d 547 (Ohio Ct.

App. 7

App. 1989), acknowledged that the next of kin have the

right to possess the body for burial; and (3) that the Ohio

Court of Appeals decision in Carney v. Knollwood Cemetery

Ass’n, 514 N.E.2d 430 (Ohio Ct. App. 1986), allows a claim

by the next of kin against those who disturb a buried

dead body. Brotherton, 923 F.2d at 482. Although both of

these Ohio appellate court decisions stressed that a gen-

eral “quasi-property” right in a dead body did not exist,

we found this of only marginal relevance, noting that the

existence of a constitutionally protected property interest

did “not rest on the label attached to a right granted by

the state but rather on the substance of the right.” Id.

Consequently, we held, “the aggregate of rights granted

by the state of Ohio to [the next of kin] rises to the level

of a ‘legitimate claim of entitlement’ in the [deceased

person’s] body, including his corneas, protected by the

due process clause of the fourteenth amendment.” Id.

Because Brotherton is the law of this Circuit, our

decision in the present case turns on a comparison of

Ohio and Michigan law. If Michigan recognizes the same

basic rights in a deceased person’s body as Ohio, then

Brotherton controls and we must reverse the district court.

After reviewing Ohio and Michigan law, we conclude that

they are in substance the same regarding the next of kin’s

rights in a deceased relative’s body. If anything, Michigan

is even more explicit than Ohio in its acknowledgment of

these rights.

For example, the Carney case relied upon in Brother-

ton involved a corpse that had been dug up and dis-

carded by cemetery employees. Carney, 514 N.E.2d at 431.

The Ohio Court of Appeals, while criticizing the notion

that a “quasi-property right” existed in a decedent’s

~

App. 8

body, nevertheless agreed that a cause of action existed

for mishandling a corpse. Id. at 435. The court, however,

tied this cause of action to the tort of causing serious

infliction of emotional distress, noting:

“The law is not primarily concerned with the

extent of physical injury to the bodily remains

but with whether there were any improper

actions and whether such actions caused emo-

tional or physical suffering to the living kin. The

tort rarely involves pecuniary injury; the gener-

ally recognized basis of damage is mental suf-

fering.”

Id. (quoting Scarpaci v. Milwaukee County, 292 N.W.2d 816,

820-21 (Wis. 1980)).

Everman v. Davis, 561 N.E.2d 547 (Ohio Ct. App.

1989), the other decision relied upon by the Brotherton

court, did not directly deal with the status of the dead

body as “property.” Rather, it held only that a dead body

is not an “effect” within the meaning of the Fourth

Amendment (granting the people the right to be free from

unreasonable searches and seizures in their “persons,

houses, papers, and effects.”). Id. at 550. The court in that

case did note, however:

There is no issue in this case of the possessory

right of a spouse or other appropriate member

__ of the family to the body of a deceased person

for the purpose of preparation, mourning and

burial. This right is recognized by law and by

decisions. See [On10 Rev. Cove.] § 313.14.

Everman, 561 N.E.2d at 550. Onto Rev. Cope § 313.14 states

that relatives “shall have a prior right as to the disposi-

tion of the body” of a deceased person.

App. 9

Neither Carney nor Everman made a sweeping pro-

nouncement of the next of kin’s right to possess and

prevent the mutilation of a decedent’s body. Carney

declared that the cause of action for mishandling a corpse

was a derivative of the tort of causing emotional distress,

and the statement in Everman was dicta, an offhand refer-

ence unnecessary to the court’s decision. The Brotherton

court nevertheless thought these decisions, with the Ohio

statutes, were sufficient, and rightly so. When these Ohio

cases, and the Ohio statute granting the next of kin the

prior right to dispose of the body, and the Ohio Anatomi-

cal Act are taken together, it demonstrates that in Ohio

there are existing “rules and understandings” which

grant the next of kin the right to dispose of the body by

making a gift of it, to prevent others from damaging the

body, and to possess the body for purposes of burial.

Such rights in an object are the heart and soul of the

common law understanding of “property.” It was there-

fore appropriate for the Brotherton court to decide that the

next of kin had a legitimate claim of entitlement to the

decedent's body.

Turning to Michigan law, its courts have explicitly

held what Ohio courts have not: that the next of kin have

a right to possess the body for burial and prevent its

mutilation. The Supreme Court of Michigan has repeat-

edly held that the next of kin “[are] 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.”

Doxtator v. Chicago & W. Mich. R.R., 120 Mich. 596, 597

(1899) (acknowledging the right, but holding that, under

the circumstances, neither the railroad nor the doctors

App. 10

were liable); Keyes v. Konkel, 119 Mich. 550, 551 (1899)

(acknowledging the right, but holding that there was no

cause of action specifically in replevin); Deeg v. City of

Detroit, 345 Mich. 371, 376 (1956) (acknowledging the

right, but holding that it did not survive the next of kin’s

death).° Furthermore, Michigan’s Anatomical Gift Act is

the same as Ohio’s. Both give the next of kin the choice of

making a gift of all or part of the decedent’s body, at least

when there is no contrary intent evidenced by the dece-

dent. Compare Onto Revisep Cove § 2108.02(B) with Micn.

Stat. ANN. § 14.15(10102)(2).

In short, Michigan law is virtually identical to Ohio’s

with regard to the rights it grants in a decedent’s body.

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 consti-

tutionally protected property interest in the dead body of

a relative.

In its opinion dismissing these cases, the district

court disagreed with this conclusion, reasoning that

Michigan law could be distinguished from Ohio’s. Speci-

fically, it held:

3 The Michigan Court of Appeals has also noted that there

is no privacy right in a dead relative’s body, a question which is

not at issue here. Tillman v. Detroit Receiving Hosp., 360 N.W.2d

275, 277 (Mich. Ct. App. 1984). This issue here is whether the

next of kin have an interest in the body of the deceased which

rises to the level of a constitutionally protected property inter-

est.

App. 11

Michigan law is sufficiently different from Ohio

law to render the result different from that in

Brotherton. Michigan has expressly declined to

recognize a property interest in the body of a

deceased person but rather, has carefully chosen

to provide recovery in tort only when the right

‘of burial of a deceased person without mutila-

tion is violated.

J.A. at 4217.

We believe the district court mistakenly focused on

the label attached to the right rather than its substance.

Although Michigan has repeatedly emphasized that

“recovery in such cases is not for the damage to the

corpse as property, but damage to the next of kin by

infringement of his right to have the body delivered to

him for burial without mutilation,” Keyes, 119 Mich. at

551, Deeg, 76 N.W.2d at 19, this is not dispositive. Ohio

also took care to emphasize that the cause of action for

mutilation of a corpse did not rest on damage to the dead

body, but his did not aid the defendants’ argument in

Brotherton. More importantly, the way in which damages

are measured does not necessarily define the substantive

interest at stake. Michigan undoubtedly provides the next

of kin with the right to possess and prevent the mutila-

tion of a dead relative’s body. How Michigan chooses to

measure damages when that right is infringed is not

determinative.* As discussed at oral argument, if a

4 We are puzzled by the district court’s statement, in sup-

port of its conclusion, that “Michigan has specifically addressed

this right to possess or control the disposition of a deceased

person’s body as one which carries redress in tort, and not in

property, if violated.” J.A. at 4213. We say this because tort law

App. 12

woman's husband dies in a neighbor’s yard, the neighbor

cannot simply keep the body. In Michigan, he must either

turn it over, or be liable. Just because the woman cannot

technically “replevin” her husband’s body does not mean

she has no legitimate claim of entitlement to it. See Keyes,

119 Mich. at 551 (noting that “[i]n numerous cases equity

has taken jurisdiction to prevent interference with the

control of a dead body by persons entitled to control it”).

The other factor by which the district court distin-

guished Michigan law from Ohio’s is that Onto Rev. Cope

§ 313.14 explicitly states that the next of kin have a prior

right as to the disposition of the body. No Michigan

statute, on the other hand, makes such a clear statement.

We do not believe, however, this affects the constitutional

analysis. What was relevant in Brotherton was that the

right to possess the body existed, not that the right was

partially grounded in a state statute as opposed to state

common law. Michigan common law clearly holds that

the next of kin have the right to possess the body for

burial. Furthermore, although no Michigan statute clearly

states that there is such a right, it is nevertheless contem-

plated: Micu. Stat. ANN. § 5.953(5) states that “[t]he

county medical examiner shall, after any required exam-

ination or autopsy, promptly deliver or return the body to

relatives or representatives of the deceased;” and Micn.

Stat. ANN. § 5.953(8) requires the state to return the body

“to the person entitled to the custody or possession of

[it].” Both of these statutes imply that the next of kin do

indeed have a “right” to the deceased relative’s body.

covers damage to both persons (e.g., battery) and property (e.g.,

trespass to land).

App. 13

In reaching today’s conclusion, we are mindful of the

Supreme Court’s admonition in Paul v. Davis, 424 U.S. 693

(1976), that not every tort by a state official is a constitu-

tional violation, and that the Fourteenth Amendment is

not a “font of tort law to be superimposed upon whatever

systems may already be administered by the States.” Id.

at 700-01. It is therefore important to note the limits of

this decision. Although both Ohio and Michigan describe

the cause of action for damaging a corpse as a personal

injury tort, neither this case nor Brotherton suggest in any

way that personal injury torts in general by state actors

amount to constitutional violations. In both this case and

Brotherton, the state cause of action for damaging a corpse

explicitly acknowledges the next of kin’s right to possess

and prevent the mutilation of the dead body. Further-

more, the Anatomical Gift Acts of both states permit the

next of kin to make a gift of the body in certain instances.

Regardless of the legal label the State places on the rights

in a dead body it chooses to create, these rights neverthe-

less exist. Moreover, they closely correspond with the

“bundle of rights” by which property has been tradi-

tionally defined. For this reason alone, we conclude that

Michigan, like Ohio, provides the next of kin with a

legitimate claim of entitlement and thus a property inter-

est in a dead relative’s body, including the eyes. Accord-

ingly, the next of kin may bring a constitutional claim

under the Due Process Clause.

Ill.

We REVERSE the district court’s decision, and

REMAND for further proceedings.

App. 14

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DIANE WHALEY, et al,

Plaintiffs,

= Case No: 92-

COUNTY OF SAGINAW, et al, CV-10103-BC

Defendants.

WILLIAM E. JONES, et al, ‘

Plaintiffs,

me Case No: 92-

COUNTY OF SAGINAW, et al, CV-10266-BC

Defendants.

CHRISTINE M. TUNNEY, et al, é

Plaintiffs,

= Case No: 92-

COUNTY OF SAGINAW, et al, CV-10267-BC

Defendants.

RITA SHARRARD, j

Plaintiff,

" Case No: 92-

COUNTY OF TUSCOLA, et al, CV-10268-BC

Defendants. ;

App. 15

LUCILLE JONES MILLER, et al,

Plaintiffs,

bi Case No: 92-

COUNTY OF SAGINAW, et al, CV-10279-BC

Defendants.

GEORGE SAUNDERS, et al,

Plaintiffs,

7 Case No: 92-

COUNTY OF SAGINAW, et al, CV-10437-BC

Defendants. ,

ORDER GRANTING DEFENDANT’S

MOTIONS TO DISMISS

I. Background

This matter is before the Court on defendants’

motions to dismiss the action under Fed.R.Civ.P. 12(b)(6).!

For the reasons stated below, the Court grants the

motions to dismiss.

These consolidated cases are brought by family mem-

bers of deceased persons from whose bodies organs were

“harvested”? and sold by some of the defendants. In the

Jones case, the family was present in the hospital when

1 Dr. Raber, defendant in the Whaley case, also requests

dismissal based on lack of personal jurisdiction under

Fed.R.Civ.P. 12(b)(2).

2 a term used by defendants, see, e.g., Defendant County of

Saginaw and Dr. Goldberger’s Motion to Dismiss Brief, p. 3.

App. 16

death was pronounced and the family was not asked their

wishes prior to harvesting. In Sharrard, Whaley, Tunney,

and Miller, the next of kin were asked but declined to

give permission for donation of the deceased persons’

organs. Tr., September 29, 1993, oral argument (hereinaf-

ter, “Tr.”).

Corneas were removed from the deceased persons in

all these cases. In Saunders, eyeballs were removed as

well. Tr., p. 7.

The posture of the case at this time is such that the

sole claim at issue here is denial of due process under 42

U.S.C. § 1983.5 Plaintiffs’ state law claims for interference

with the right of burial of a deceased person without

mutilation also remains a viable claim but will not remain

in this Court since the federal claim is to be dismissed

below. 28 U.S.C. § 1367(c)(3).

Plaintiffs seek redress against various defendants.*

Defendants Goldberger and Varner are pathologists who

performed the autopsies on the deceased persons. Defen-

dant Hines was Saginaw County Medical Examiner and

Defendant Nigg was Tuscola County medical examiner.

Each of these two (Hines and Nigg) is sued based on his

alleged failure to supervise Defendant Herrera who was

allowed to serve as diener for the Saginaw Community

3 Plaintiffs’ stipulated to dismissal of their claims based on

violation of equal protection under 42 U.S.C. § 1983, violation of

the Federal Transplantation Act found at 42 U.S.C. § 274e, and

violation of the Uniform Anatomical Gift Act found at Mich.

Comp. Laws § 333.10101, et seq., Tr., pp. 6-7.

4 All of the defendants, except for Trenerry Funeral Home

and Dr. Herrera, have moved for dismissal.

App. 17

Hospital’s morgue. Defendant Herrera, d.b.a., Mid

Regional Eye Bank and Tissue Center (now deceased and

represented by his estate’s personal representative) was a

diener who conducted the actual harvests of corneas, and

eyeballs as alleged in Saunders. Defendant Saginaw Com-

munity Hospital’s morgue is the place where the autop-

sies and harvests were performed and is sued under the

theory of breach of a duty to supervise Dr. Hines (vicar-

ious liability). The counties are also sued under the the-

ory of vicarious liability because the county medical

examiner is a county official. Dr. Raber is sued because he

purchased corneas from Mid Regional Tissue Center

(Herrera).

Il. Standard

The standard to be applied to deciding a motion to

dismiss is as follows:

This Court must construe the complaint in the

light most favorable to the plaintiff, accept all

factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no

set of facts in support of his claims that would

entitle him to relief. A complaint need only give

‘fair notice of what plaintiff’s claim is and the

grounds upon which it rests.’ A judge may not

grant a Fed.R.Civ.P.12(b)(6) motion to dismiss

based on a disbelief of a complaint’s factual

allegations. While this standard is decidedly lib-

eral, it requires more than a bare assertion of

legal conclusions. ‘In practice, a . . . complaint

must contain either direct or inferential allega-

tions respecting all the material elements to sus-

tain a recovery under some viable legal theory.’

App. 18

In Re DeLorean Motor Co., 991 F.2d 1236, 1240

(6th Cir. 1993) (internal citations omitted)

(emphasis in original).

III. Discussion

As noted during oral argument, this case rises or falls

— in this instance, falls - on the analysis provided by the

Sixth Circuit in Brotherton v. Cleveland, 923 F.2d 477 (6th

Cir. 1991).5

In Brotherton, plaintiff brought an action under 42

U.S.C. § 1983 for wrongful removal of her husband’s

corneas during an autopsy performed at Bethesda North

Hospital in Hamilton County, Ohio. The custom and pol-

icy of the Hamilton County coroner’s office was not to

obtain consent from the next of kin before removing

corneas nor was it the policy of the office to inspect

medical records to determine whether any objection to

removal was present in the records. Id. at 478.6 When

asked by the hospital, plaintiff had declined to consent to

organ donation based on her knowledge of her husband’s

wishes. Id. at 478. Plaintiff’s claim in Brotherton, as in this

case, asserted that the practice of the coroner’s office,

acting under color of the presumed consent law found in

5 Plaintiff conceded that if Michigan law is concluded to be

distinguishable from Ohio law such that Brotherton, supra,

would not apply, plaintiffs’ claims must fall.

6 There is evidence to the contrary in the instant case.

Defendants contend that the policy of the Saginaw County Med-

ical Examiner’s office is to obtain consent whenever practicable.

Exhibit 3, Def. Saginaw County Response; Tr., p. 27; See also, Tr.,

14; 16 (as to Dr. Nigg); 22 (as to Drs. Goldberger and Varner).

App. 19

Ohio’s adoption of the Uniform Anatomical Gift Act,

violated procedural due process by failing to require

predeprivation process. Id. at 479.

The Sixth Circuit held that Ohio created a property

right-equivalent to a “legitimate claim of entitlement”

protected by the due process clause of the Fifth Amend-

ment in plaintiff’s deceased spouse’s body, although Ohio

had not labelled the right as such. Id. at 482. The Court

further held that protection of this right required a prede-

privation process. Id. Plaintiff in the instant case argues

that Michigan law is sufficiently similar to Ohio law that

Brotherton is on all fours and controls this case. The Court

finds that Michigan law differs from Ohio law on this

subject to such an extent that the instant result must

differ from that in Brotherton.

The Court in Brotherton rested its holding on the sum

of three legal principles found in Ohio law: (1) Ohio Rev.

Code § 2108.02(B), as part of the Uniform Anatomical Gift

Act; (2) the decision in Everman v. Davis, 54 Ohio App.3d

119 (1989), which, in turn rested on Ohio Rev. Code

§ 313.14; and (3) the decision in Carney v. Knollwood

Cemetery Ass'n, 33 Ohio App.3d 31 (1986) (allowing a

claim for disturbance of the body of a deceased relative).

Brotherton, 923 F.2d at 482. The Court in Brotherton held

that “the aggregate of rights granted by the state of Ohio

to [plaintiff] rises to the level of a ‘legitimate claim of

entitlement’ in [the deceased spouse’s] body, including

his corneas.” Id. at 482. Indeed the Court’s conclusion

may be reached only by the sum of these three grounds,

without all three, the result would be different.

App. 20

To be sure, the Brotherton Court's first ground for its

conclusion is also present in the instant case. The Uni-

form Anatomical Gift Act is, as its name implies, largely

consistent in the states which have adopted it, one of

which is Michigan. In Michigan, the provision cited by

the Court in Brotherton (Ohio Rev. Code § 2108.02(B)), is

found at Mich. Comp. Laws § 333.10102. The provision

allows certain relatives to make an anatomical gift of a

decedent’s organs absent knowledge of contrary indica-

tions by the decedent. Mich. Comp. Laws § 333.10102.

Further, the third ground is also present in Michigan law.

Deeg v. Detroit, 345 Mich. 371 (1956) (recognizing the tort

of interference with the right of burial of a deceased

person without mutilation).

The second ground for the Court’s conclusion in

Brotherton, however, is not present in Michigan law. The

Court in Brotherton, relied on the Ohio Appellate decision

in Everman, supra. The language cited reads as follows:

There is no issue in this case of the possessory

right of a spouse or other appropriate member

of the family of a deceased for the purposes of

preparation, mourning and burial. This right is

recognized by law, and by the decisions. R.C.

313.14. This is not to say that a person has a

property right in the body of another, living or

dead, or that a corpse may not be temporarily

held for investigation as to the true cause of

death. Everman, 54 Ohio App.3d at 122, cited in

Brotherton, 923 F.2d at 481.

The statute referenced provides that “[t]he next of kin,

other relatives, or friends of the deceased person, in the

order named, shall have prior right as to the disposition

of the body of such deceased person.” Ohio Rev. Code

App. 21

§ 313.14 (emphasis supplied) (section entitled “notifica-

tion of relatives; disposition of property.”). There is no

such provision under Michigan law. Michigan law lists, in

order of ability to authorize, those able to donate the

organs of the deceased, but does not equate this ability to

choose the disposition of the body with a “right” as does

the Ohio statute. Mich. Comp. Laws § 333.10102(2).7

A further distinction between the Ohio appellate

decision in Everman and Michigan case law is that Michi-

gan expressly describes the interest a family member has

in the body of a deceased relative as giving rise to recov-

ery in tort only. The Ohio Court in Everman recognized a

possessory interest in the disposition of a deceased’s

body but did not address the type of redress violation of

this right would evoke. Everman, supra. Michigan appel-

late decisions, on the other hand, state that:

While there is no property right in the next of

kin to a dead body, Michigan jurisprudence rec-

ognizes a common law cause of action on behalf

of the person or persons entitled to the posses-

sion, control, or burial of a dead body for the

tort of interference with the right of burial of a

deceased person without mutilation. Tillman v.

Detroit Receiving Hospital, 138 Mich. App. 683,

686-687 (1984) (emphasis supplied).

Thus, Michigan has specifically addressed this right to

possess or control the disposition of a deceased person’s

body as one which carries redress in tort, and not in

7 Notification of next of kin and procedure regarding per-

sonality found on deceased person are discussed at Mich.

Comp. Laws § 52.205(4) and § 52.208.

App. 22

property, if violated. Id.; See also, Allinger v. Kell, 102

Mich. App. 798, 808 (1981) (“The unlawful and inten-

tional mutilation of a dead body gives rise to a cause of

action for damages. This right of recovery is based upon

principles of tort and contract law.”) (opinion of Allen, J.).

In addition, Michigan Courts have stated that the proper

damages under this tort are “measure[d] [by] the mental

anguish or humiliation suffered by the plaintiffs who

have been denied the comfort of knowing that the

deceased has been given a comfortable and dignified

retiring place.” Allinger, 102 Mich. App. at 809. Where

Michigan courts have chosen to limit the rights given by

its own common law decisions, this Court should abide

by such limitation, especially where, as here, the limita-

tion is one that is not devoid of logic, nor one that applies

a label which does not match its underlying substance.

Concluding that any recovery to be had for mishan-

dling of a corpse is to be founded in tort and not in

property is consistent with the law in other states. Other

states have expressly analyzed the tort of mishandling of

a corpse as one of negligent or intentional infliction of

emotional distress. Leonard v. Kurtz, 234 Ill.App.3d 553,

600 N.E.2d 896 (1992) (finding wrongful cremation of

spouse did not vitiate the requirement that plaintiff show

resultant physical injury to recover for negligent inflic-

tion of emotional distress); Jobin v. McQuillen, 158 Vt. 322,

609 A.2d 990 (1992) (recognizing right of possession in

8 Contrast, Brotherton, where the Sixth Circuit held that the

label Ohio had placed on the interest of a relative to direct the

disposition of a deceased’s body did not reflect the actual inter-

est granted by law. Brotherton, 923 F.2d at 482.

App. 23

body of deceased and analyzing claim as one of inten-

tional or negligent infliction of emotional distress, also

finding that retention of brain for scientific study was not

so extreme or outrageous as to satisfy the first element of

the tort); Christensen v. Superior Court of Los Angeles

County, 54 Cal.3d 868, 820 P.2d 181, 2 Cal.Rptr.2d 79

(1992) (finding that holders of statutory right to control

disposition of human remains had standing to seek dam-

ages for emotional distress from biological supply com-

pany which allegedly requested and purchased from

crematoriums human organs and body parts that were

allegedly “harvested” without permission); Hackett v.

United Airlines, 364 Pa.Super. 612, 528 A.2d 971 (1987)

(surviving daughter’s claim of infliction of emotional dis-

tress based on damage sustained by casket and body of

deceased mother during transit for funeral failed to state

cause of action for infliction of emotional distress where

alleged mistreatment of the dead was merely negligent

and daughter did not witness the mistreatment).

At least one state has surmised that mishandling of a

corpse (mutilation of the body of a deceased) was the first

cause of action allowing recovery for emotional distress:

While a majority of courts have allowed inde-

pendent recovery only for the intentional inflic-

tion of mental distress, a significant minority

first permitted recovery for the negligent inflic-

tion of mental distress only as a parasitic tort, or

as an independent tort in special situations,

such as the negligent transmission of a message

and the negligent mishandling of corpses where,

on its face, there is a special likelihood that

mental distress will result. Leong v. Takasaki, 55

Haw. 398, 520 P.2d 758 (1974).

App. 24

Physical harm to the plaintiff family member who

witnesses the person’s injury “fairly contemporanouesly”

with the injury are not required for the tort of mutilation

of the body of a deceased person because such a heinous

action presumptively causes severe emotional distress to

the loved ones who would have a right to decide disposi-

tion of the deceased’s body. Leong, supra.

Although Michigan Courts have not squarely

addressed whether the tort that it recognizes for the

mishandling of a corpse should be considered one of the

emotional distress torts, Michigan has allowed recovery

for emotional distress by immediate family members who

witness injury to family members “fairly contemporane-

ously” where such witness causes physical harm to the

plaintiff. See, e.g., May v. Beaumont Hospital, 180 Mich.

App. 728 (1989); Wargelin v. Mercy Health Corp., 149 Mich.

App. 75 (1986); Berger v. Weber, 411 Mich. 1 (1981). A

failure to categorize mutilation of a dead body as not

only tort, but also an emotional distress tort, could be

due to the recognition of a tort of “interference with the

right of burial of a deceased person without mutilation”

long before the tort of intentional or negligent infliction

of emotional distress.? Therefore, it seems possible that

no re-categoration of the mutilation of a body tort was

made after creation of the negligent and intentional inflic-

tion of emotional distress torts.

The Court notes, however, that although Michigan

has not expressly categorized (or re-categorized) the tort

9 The tort of interference with the right of burial of a

deceased person without mutilation was recognized at least by

1956. Deeg v. Detroit, 345 Mich. 371, 375 (1956).

App. 25

as one of negligent or intentional infliction of emotional

distress, the Court of Appeals has felt compelled to grap-

ple with the issue of whether the anguish need be “con-

temporaneous” with the mutilation, which is to grapple

with an element of the emotional distress torts. Allinger,

102-Mich. App. at 809; see also, Vogelaar v. United States,

665 F.Supp. 1295, 1306 (E.D.Mich. 1987).

Regardless of whether the tort recognized by Michi-

gan is one sounding in emotional distress, it is clearly a

tort based on interference with the right of burial of a

deceased person without mutilation and not a property

interest. Tillman, supra.

Therefore, Michigan law is sufficiently different from

Ohio law to render the result different from that in Broth-

erton. Michigan has expressly declined to recognize a

property interest in the body of a deceased person but

_ rather, has carefully chosen to provide recovery in tort

only when the right of burial of a deceased person with-

out mutilation is violated. Tillman, supra. Furthermore,

the Court notes that Michigan is not alone in concluding

that any theory of recovery for interference with the right

to burial without mutilation lies in tort alone. Leonard v.

Kurtz; Jobin v. McQuillen; Christensen v. Superior Court of

Los Angeles County; Hackett v. United Airlines. Michigan

may desire, in the future, to expressly join these other

states in categorizing the tort as one for infliction of

emotional distress.

App. 26

Since Michigan does not recognize any property

interest in the deceased body of another,!° either

expressly or implicitly, there can be no protection of that

interest under the due process clause of the Fifth Amend-

ment that would give rise to a cause of action under 42

U.S.C. § 1983. Brotherton, 923 F.2d at 480, 482. Accord-

ingly, the Court need not reach the issues of pre-depriva-

tion versus post-deprivation process, immunity, or

personal jurisdiction of defendant Raber. Martinez v. Cali-

fornia, 444 U.S. 277, 284 (1980).

IV. Conclusion

For the reasons stated above, the defendants’

motions to dismiss are hereby GRANTED and this cause

of action is DISMISSED with prejudice to any claim based

upon due process under 42 U.S.C. § 1983 and without

prejudice to the plaintiff’s ability to file state law claims

in state court.

10 This conclusion is supported by the decision in Montgom-

ery v. County of Clinton, 940 F.2d 661, 1991 WL 153071 (6th Cir.

(Mich.)) (“There is no merit in the procedural due process claim

founded on the state statutory requirement that the medical

examiner make a diligent effort to notify the next of kin as to the

decision to perform an autopsy. Whatever the nature of the right

created by the statute there is an insufficient liberty or property

interest under this statute to create a valid procedural due pro-

cess claim. . . . We would distinguish this case from Brother-

ton.”).

App. 27

IT IS SO ORDERED.

/s/ Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT

JUDGE

DATED: March 23rd, 1994