Opposition Brief — County of Saginaw v. Whaley

No. 95-427 (9)

an The Supreme Court, U.S.

Supreme Court of the Wnited) States * ”

October Term, 1995 OCT 11 1995

e

THE CLERK

COUNTY OF SAGINAW; M.B. coLppeRch ith

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; 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.

* a

On Petition For A Writ of Certiorari

To The United States Court of Appeals

From The Sixth Circuit

S “

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

t -

Kenneth K. Wright neil RECEI Vv E D :

Counsel of Record \

Kenneth K. Wright (P29445) OCT 12 1995

John W. Grigg (P37424)

Seward, Tally & Piggott, P.C. OFFICE UF int CLERK

Counsel for Responde

1009 Washington Avenue | SUPREME COURT, U.S.

Bay City, Michigan 48708-578¢

(517) 892-6551

QUESTION PRESENTED

The Plaintiffs brought these §1983 actions, alleging that the

Defendants violated their Fourteenth Amendment procedural

due process rights by removing the corneas and/or eyes of their

recently deceased relatives. The question presented is whether

under Michigan law next of kin have a constitutionally protected

property interest in deceased relatives’ bodies enabling them to

assert procedural due process claims under 42 USC $1983.

TABLE OF CONTENTS

PAGES

QUESTION PIRGMOU Ress 6.ctvcccccethbstadevsscenenty i

TABLE. OF ALFERROEEIOD icsduscdcuaeds isvebiiyetes iii

I STATEREENT GP ‘Timie Celis 5 oecnsdsteceecvsavaes 2

A. Wane ieas ta cies Fite dn anna de eee 2

B. Legal Proceedings Below ................sseeee08: 3

1. The District Court Proceedings................ 3

2. The Decision of the Sixth Circuit Court of

AaOOUI . . a's. ass 16556045 en see PEN en ate 3

II REASONS FOR DENYING TEE PETITION....... 5

A. This is Purely a Matter of Construing State Law... 5

B. There is No Conflict Between the Circuits........ 7

C. Conscription of Organs is Neither Preferred Nor

a Matter of National Policy ....................+. 10

1. The Evolving Uniform Anatomical Gift Act... .. 10

2. Federal Policy Mandates Request and

Conte 5c ccksucdsadeameeiedae eee 12

TTT CONCLUSIAANS oo. ciccccvnsivenatsanaene erat eeeent 15

iii

TABLE OF AUTHORITIES

PAGES

CASES

Arnaud v Odom,

870 F 2d 304 (5th Cir., 1989), cert den 493 US 855

eo cups cswewast 7,8

Brotherton v Cleveland,

Ge © Sa 477 (Gime Cie. 1001) .... lec ccccces 3,4,5,

6,7,10

Deeg v City of Detroit,

SoU I Ps Oe CRO ag oc ecu cvcctccccsccdecces 4

Doxtator v Chicago & W. Mich R.R.,

190 Bite Dee. GOT CIGOS)... ww. ccc ccc ccc cccees 4

Florida v Powell,

ee nw obovceeccscecceunte 8.9

Fuller v Marx,

See ae eee Ge, BOE) Co gcc acc ccccccccacses 8

Georgia Lions Eye Bank v LaVant,

Soo Ge Ge sao Se Ba 197 (1065) ... 5... 0. ccc eee 8.9

Haring v Prosise,

462 US 306, 314, n. 8; 103 S Ct 2360, 2373, n. 8;

es ee ee ee A) cin bo vce cbicccbwccceces 5

Keyes v Konkel,

Bee mes ee, SN CRBOD). o.oo c cc ccc ccccsvccccccs 4

Lawyer v Kemodle,

Be Ge | 8

Lyon v United States,

843 F Supp 531 (DC, MN, 1994)................6. 9,10

Memphis Light, Gas & Water Div. v Kraft,

436 US 1, 9; 98 S.Ct 1554; 56 L Ed 2d 30 (1978).. 5,89

Perry v Saint Francis Hospital,

886 F Supp 1551 (DC, KA, 1994);

FOE a 0600 450k vwgse eves SE ran 911

iv

PAGES

Tillman v Detroit Receiving Hosp.,

138 Mich App 683; 360 NW 2d 275, 277 .......... 4

Vogelaar v United States,

665 F Supp 1295, 1306 RED sd 1 chicks ania ceec ie 7

Watt v Alaska,

451 US 259, 273; 101 S Ct 1673; 68 L Ed 2d 80,

dt RR SR ES aa: a pie hel een eee 16

COURT RULES

SN oo ba vo rav kcbererecterveise ee 3

UE oF 2c. ok wav ncn cavdad. BEA ee AOA 3

STATUTES

FEDERAL

IS is oe he ya = 8a ee alae 12

Ge I a at 5 Si boos ocak oo Rice vier soaks as 6

Pub. L. No. 103-432, Title I, sec. 155(b) ........... 14

STATE

MCLA 333.10108; MSA 14.15(10108).............. 7

MCLA 333.10203; MSA 14.15(10203).............. 7

MSA $9525.921 to 525.9224 (Minnesota) .......... ]

OTHER AUTHORITIES

Journal of Health Politics, Policy and Law,

Vol. 14, No. 1 (1989), OD TPG kos csaoiacncines 14

Report of the Task Force on Organ

FP Te Peer TEE TTR TTT Tee 12,13,

15

UCLA AUT CEES BOGS BO. vin asec bnncneiceras 1]

No. 95-427

gn The

Supreme Court of the Wnited States

October Term, 1995

¢

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

individually and as Saginaw County Chief Medical Examiner,

Petitioners,

¥

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

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

F Oak

LL

I

STATEMENT OF THE CASE

A. Introduction

These six cases arose out of the non-consensual removal of

eyes and/or corneas from bodies held for Saginaw and Tuscola

County Medical Examiner autopsies. Initially they were not

consolidated. The Sixth Circuit's recitation of facts, on which

Petitioners rely, is largely correct, but overlooked some of the

documented facts and/or misstated others. So that there be no

misunderstanding, the Respondent Plaintiffs point out the

following inaccuracies in the Sixth Circuit's statement of facts:

1. The Sixth Circuit failed to identify Dr. Hines as a Deputy

Medical Examiner in Saginaw County, as well as its contracted

pathologist for Medical Examiner autopsies.' He pronounced the

death in the Saunders case.

2. The business arrangement existed only between Saginaw

County and Herrera.? There was no such agreement with Tuscola

County as recited below.

3. Corneas and/or eyeballs were removed while the bodies

were held for Medical Examiner autopsy; enucleation not always

following autopsy as recited below.*

4. Contrary to the lower opinion, Plaintiffs sued only in

federal court after discovery in a state court action, involving

another autopsy, produced records of more than forty other

non-consensual tissue removals at Medical Examiner autopsies

' Whaley, First Amended Complaint, 42 and Exhibit 5, Death Certificate.

? Appendix 1 and 2.

* The autopsy reports on Ricky Jones, Glenn Sharrard and Lee Tunney stated

Dr. Hines found the corneas removed on external examination of the bodies.

Jones Brief, 7/6/93, Ex. 2; Sharrard Complaint, Ex. 11; and Tunney Complaint,

Ex. 10.

performed by Hines, and the disposition of harvested tissue

outside Michigan and the United States.‘

5. Consolidation was ordered at the hearing on Defendants’

Motions for Summary Disposition.>

These actions were dismissed under FRCP 12(b)(6), but

dismissal had also been sought under FRCP 56(b). The sizeable

record below amply demonstrates Petitioners’ policy of allowing

non-consensual tissue harvest at Saginaw County Medical

Examiner autopsies and its occurrence in these cases. Such

explains Petitioners’ desperation in seeking certiorari at this stage

of the proceedings.

Petitioners have incorrectly named all other parties to these

consolidated cases as “Respondents”. Rita Sharrard is Plaintiff in

an action arising out of a Tuscola County autopsy. Tuscola County,

and its late Medical Examiner, Dr. Nigg, conceded below that

Plaintiffs/Respondents have sufficient interests in the bodies of

their respective decedents to warrant due process protection. As

noted by the Sixth Circuit, Tuscola County contends that it did

not have a policy allowing non-consensual cornea removal and

deserves dismissal under FRCP 56(b). (Petitioners’ Appendix 1,

ftnt 1.)

B. Legal Proceedings Below.

1. The District Court Proceedings

The foregoing has addressed the inadequacies in Petitioners’

recital as to the proceedings in the district court.

2. The Decision of the Sixth Circuit Court of Appeals

Defendants inaccurately portray the Sixth Circuit's decision

as grounded in the conclusion “that what is relevant for the

Brotherton analysis is that the right to possess the body exist, not

that the right was grounded in Michigan statute or in the common

*Whaley First Amended Complaint, 4437-41 and Ex. 7-11; Tunney

Complaint, 9440-43 and Ex. 2, 11-12; Saunders Complaint, 4451-54; Jones

Complaint, 4434 and 43 and Ex. 14-16; and Miller Complaint, 4431-33, 35-36,

and Ex. 1-2, 5-8, and 10-11.

* Tr, 9/29/93, p 5.

law of Michigan.” (Petition, p 6, citing Brotherton v Cleveland,

923 F 2d 477 (6th Cir, 1991).) Brotherton found that “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.” Brotherton,

supra, p 482. Included within that “aggregate” were the rights to

possess the body and to control the disposition of the body. Ibid.

Reviewing Michigan law, after noting that the existence of

a constitutionally protected roperty interest turns upon the

substance of the right as opposed to its label under state law, the

Sixth Circuit found that the laws of Ohio and Michigan are “in

substance the same” and “(i)f anything, Michigan is even more

explicit in its acknowledgment of these rights.” (Petitioners’

Appendix 7.) It cited three Michigan Supreme Court cases

holding 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.” Ibid., pp 9-10, citing Doxtator v

Chicago & W. Mich R.R., 120 Mich 596, 597 (1899); Keyes v

Konkel, 119 Mich 550, 551 (1899); and Deeg v City of Detroit,

345 Mich 371, 376 (1956); as well as Tillman v Detroit Receiving

Hosp., 138 Mich App 683; 360 NW 2d 275, 277.6 It also found:

Michigan's version of the Uniform Anatomical Gift Act was the

same as Ohio's in granting next of kin the choice of making a gift

of all or part of a decedent's body, at least when the decedent had

not evidenced a contrary intent’; other Michigan statutes

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

burial; and, that the district court had ‘mistskenly focused on the

label attached to the right rather than its substance.” These rights

being found under Michigan law, and to “closely correspond with

* Petitioners’ reliance on Tillman, supra, is further misplaced because,

ultimately, it addressed whether a decedent's personal representative had

standing to challenge non-consensual corneal removal as an invasion of the

decedent's privacy. The right of privacy ending at death, the Michigan Court of

Appeals rejected “plaintiff's constitutional challenge predicated on the right of

privacy.” Ibid., at 687.

7 Ohio has subsequently amended its law. Infra.

the ‘bundle of rights’ by which property has been traditionally

defined”, the Sixth Circuit reversed the dismissal of these

consolidated cases. (Petitioners’ Appendix, pp 10-13.)

II.

REASONS FOR DENYING THE PETITION

A. This is Purely a Matter of Construing State Law.

This Court places great deference upon the interpretation of

state law made by the Court of Appeals. Haring v Prosise, 462 US

306, 314, n. 8; 103 S Ct 2360, 2373, n. 8; 76 L Ed 2d 595, 604,

n. 8. Here, that interpretation was in accord with numerous prior

decisions of this Court as to the means by which to determine the

existence under state law of sufficient property interests to

warrant due process protection.

“The Fourteenth Amendment places procedural

constraints on the actions of government that work a

deprivation of interests enjoying the stature of ‘property’

within the meaning of the Due Process Clause.

Although the underlying substantive interest is created

by ‘an independent source such as state law’ federal

constitutional law determines whether that interest

rises to the level of a ‘legitimate claim of entitlement’

protected by the Due Process Clause. Board of

Regents v Roth, 408 US 564, 577; 92 S Ct 2701;

33 L Ed 2d 548 (1972); Perry v Sinderman, 408 US

593, 602; 92 S Ct 2694, 33 L Ed 2d 570 (1972). The

outcome of that inquiry is clear in this case.” Memphis

Light, Gas & Water Div. v Kraft, 436 US 1, 9; 98 S Ct

1554; 56 L Ed 2d 30 (1978). See also, Petitioners’

Appendix, pp 5-6.

Petitioners recognized that Plaintiffs’ claims were grounded upon

the decision in Brotherton, supra, so they rejected it as improperly

decided and/or distinguishable. They assert that the Sixth Circuit

has improperly stretched the constitutional protection of property

rights beyond the meaning of “property” used in the Fourteenth

Amendment. Petitioners cite no authority and have failed to

distinguish Plaintiffs’ or Mrs. Brotherton’s entitlement to the

remains of their deceased family members from the statutory

entitlements recognized by this court as warranting pre-deprivation

due process protection in the following cases cited in Brotherton:

Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed

2d 287 (1970) — welfare recipient had claim of

entitlement under statute to continued benefits

requiring eligibility hearing before benefits were cut

off.

Boddie v Connecticut, 401 US 371; 91 S Ct 780;

28 L Ed 2d 113 (1971) — state denied due process to

indigents by denying statutory entitlement to divorce

absent payment of court costs and fees.

Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d

90 (1971) — driver's license as a statutory entitlement

cannot be taken away without notice and opportunity

for hearing.

Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d

566 (1972) — replevin statutes authorizing prejudgment

repossession of household goods held to violate

procedural due process.

These cases show that the Sixth Circuit has not expanded any

definition or the concept that statutory entitlements are sufficient

to warrant pre-deprivation due process under 42 USC 1983.

While the district court's interpretation differed, the appellate

court clearly identified the district court’s error by following this

Court's admonition to look for substance rather than label in

determining the existence of property rights under state law.

Petitioners’ argument relies purely on label, and is faulty for the

Same reason.

“Few things are more cherished, respected, or sacred

than the right to bury our dead. There is a cognizable

and compensable interest under Michigan law in ‘the

comfort of knowing that the deceased has been given a

comfortable and dignified resting place.’ Allinger v

Kell, 102 Mich App 798, 808-809, 302 NW2d 576, rev'd

on other grds, 411 Mich 1053, 1053-54, 309 NW2d 547

(1981) (citing Restatement (Second) of Torts §868,

p 274 (1979)).” Vogelaar v United States, 665 F Supp

1295, 1306 (1987).

titioners’ chastise Plaintiffs for choosing not to pursue state

law claims for mutilation of a body. (Petition, p 13.) They further

assert immunity under MCLA 333.10203; MSA 14.15(10203) and

MCLA 333.10108; MSA 14.15(10108). These issues were not

passed upon in the lower courts. (Petitioners’ Appendix, p 3, fn 1)

But, recognizing the Sixth Circuit's decision as correct on the Due

Process issue, then state immunity defenses must fail.®

There is no reason for this Court to entertain further review as

to whether Michigan law recognizes the rights found by the lower

court or whether those rights warrant due process protection.

B. There is No Conflict Between the Circuits.

Despite Petitioners’ assertion, no other circuit has reviewed

Michigan law as to whether next of kin have a sufficient interest

in a decedent's body to warrant due process protection. In

addition, each case cited as conflicting with Brotherton, supra,

and the present action, is distinguishable.

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

493 US 855 (1989), dealt with wrongful experimentation upon

decedents’ bodies, not non-consensual tissue removal. The

dismissal of plaintiff's Section 1983 claims was grounded in there

* “Municipal defenses — including an assertion of sovereign immunity — to

a federal right of action are, of course, controlled by federal law.’ Owen v City

of Independence, 445 US 647, n 30, 63 L Ed 2d 673, 100 S Ct 1398. ‘By

including municipalities within the class of ‘persons’ subject to liability for

violations of the Federal Constitution and laws, Congress — the supreme

sovereign on matters of federal law — abolished whatever vestige of the State’s

sovereign immunity the municipality possessed.’ Id., at 647-648, 63 L Ed 2d 673,

100 S Ct 1398 (footnote omitted).” Howlett v Rose, 496 US 356, 376; 110 S Ct

2430; 110 L Ed 2d 332 (1990).

“Congress surely did not intend to assign to state courts and legislatures a

conclusive role in the formative function of defining and characterizing the

essential elements of a federal cause of action.’ Wilson v Garcia, 471 US 261,

269, 85 L Ed 2d 254, 105 S Ct 1938 (1985).” Ibid., p 378.

being adequate state law remedies to redress the plaintiff's

injuries. Ibid., p 309. The Eighth Circuit decisions do not support

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

found adequate pre-deprivation process under Arkansas Statutes

Annotated, 82-434, to defeat a Section 1983 claim for failure to

return a decedent's organs after autopsy. It did not reach the

Constitutional issue.® Petitioners inaccurately state that Lawyer v

Kernodle, 721 F 2d 632 (8th Cir., 1983), “affirmed the dismissal

of the constitutional claim because the Plaintiff failed to show a

deprivation of any property interest.” (Petition, p 20.) ;

supra, stands for no such proposition. Actually, the Eighth Circuit

found that Missouri law confers on a surviving husband “a

quasi-property right which entitles him to the possession and

control of the body for the single purpose of decent burial.” [bid.,

p 734. No due process violation was asserted where the husband

alleged negligent diagnosis of cause of death, rather than

interference with his “right to bury his deceased spouse.” Id.,

p 735.

Similarly, the Florida and Georgia supreme court decisions

asserted as conflicting with the lower court are i

distinguishable. Florida v Powell, 497 So 2d 1188 (1986), did not

__emplay a Memphis Light, supra, inquiry as to whether survivor's

“3 statutory entitlement to receive and dispose of a decedent's body

was a sufficient property interest to warrant due process protection.

Rather, on a balancing of interests inquiry, it found Florida’s

non-consensual cormmea removal provision “reasonably achieves

the permissible legislative objective of providing sight to many of

Florida's blind citizens” Ibid., p 1191. Unlike the present case

where corneas and/or eyes were shipped out of state and overseas,

it found that Florida's “medical examiners may not automatically

reich tole’ fetes WE ecidiiee GANG te autopsy; rather, a

request must be made by an eye bank based on on present eed

the tissue.” Id. Similarly, Georgia Lions Eye v LaVant, 255

Ga 60; 335 SE 2d 127 (1985), found that Georgia’s non-consensual

corneal removal provision “yearly benefits hundreds of Georgians”.

Whee 8c, ie sah ticle bch da ie Rag! O02 a

Amaud, supra, at p 719.

Ibid., p 129. Neither employed the Memphis Light, supra, line of

inquiry. But, Georgia Lions Eye Bank, supra, found a common

law “quasi-property right” in the possession and control of a

decedent's body. Ibid., p 128. Florida, supra, cited numerous

decisions recognizing that next of kin are entitled to possession of

a decedent's body, but refused to classify it as a “property” right.

Ibid., p 1191-92. Both cases appeared to focus on the label

attached to the right, rather than upon its substance. But, unlike

the present case, both focused on balancing intrastate interests.

Neither necessarily support a medical examiner's employment of

a tissue harvester and non-consensual cormeal removal for interstate

and international sale as occurred here.

Florida has subsequently enacted laws and _ regulations:

establishing a state registry for organ donation, requiring hospital

administrators to check the registry and/or obtain consent from

the next of kin before any organ or tissue removal, prohibiting a

medical examiner from allowing an organ or tissue procurement

agency to provide employees or salaries for any members of the

medical examiner's office, and defining “donation” as “the free

and voluntary gift of one or more organs or tissues for the purpose

of medical research or transplant.” See Appendix 3-4 and 3-5,

infra.

In addition, Petitioners have failed to cite any decisions from

other circuits contrary to their position. Two such cases are

Perry v Saint Francis Hospital, 886 F Supp 1551 (DC, KA, 1994);

865 F Supp 724; and Lyon v United States, 843 F Supp 531 (DC,

MN, 1994). The former is “a tissue donation case in which the

plaintiffs allege that defendants took from the ... body more

tissue than what the plaintiffs’ (sic) had agreed to donate.” Perry,

supra, p 1553. It found: “Kansas law considers Mary Anne Perry

(the widow) to be the exclusive owner of a quasi-property right in

the body, namely, the right to possess it for the limited purposes

of preserving and burying it.” Ibid., p 1563. Lyon, supra, found a

Veteran’s Administration Hospital and physician entitled to

“good-faith immunity” under Minnesota's version of the Uniform

Anatomical Gift Act. (MSA $9525.921 to 525.9224.) There, a

decedent's eyes were removed after consent was denied, but upon

discovery of the error, the eyes were returned in time for burial

10

with the remainder of the body. It found the good-faith immunity

provision under the Act “designed for situations ... where

because of confusion an organ is removed without genuine

consent.” Lyon, supra, p 736. Here, there was neither confusion,

nor any consent whatsoever, where no effort was made to obtain

Plaintiffs’ consent to tissue removal or their refusals to consent

were blatantly disregarded.

Taken altogether, whether a survivor's interest in a decedent's

body warrants due process protection is a question of state law, so

the existence of varying decisions between the circuits does not

mean that this Court should intercede and adopt one circuit's

position over that of any other. Despite their protestations,

Petitioners have not shown that the Sixth Circuit erred in

Brotherton, supra, or the present case.

C. Conscription of Organs is Neither Preferred Nor A

Matter of National Policy.

1. The Evolving Uniform Anatomical Gift Act.

Petitioners passionately argue that the need for

non-consensual eye and cornea removal justifies certiorari and

declaration that “conscription of organs” (Petition, p 22) outweighs

the rights of decedents’ survivors. There are numerous variations

between the states with respect to the laws on organ and tissue

removal for transplantation.!° While Petitioners cite the 1987

UAGA, Michigan is not among the twenty-three states which have

adopted it. At present, three editions of the Uniform Anatomical

Gift Act have been enacted by various states.

The 1968 version of the UAGA contained no provision

allowing non-consensual removal of any body part by a medical

examiner or coroner. Later, ten states, including Michigan, adopted

the section allowing non-consensual corneal removal so long as

the Medical Examiner did not know of an objection. Twenty-three

states have adopted the 1987 UAGA allowing a medical examiner

or coroner to remove any body part for transplantation, provided

there has been a reasonable effort to locate the next of kin and

inform them of their option to donate tissue.

‘© For a synopsis of the state laws on organ and tissue procurement, see

Appendix 3.

11

Petitioners mislead by asserting that fifty states have adopted

“some form of the UAGA” without identifying the significant

disparities between the editions of such Acts. They further

mislead by asserting that “encouraged volunteerism’... has

generally been acknowledged as a failure.” Ibid., p 22. Indeed,

the Prefatory Note to the 1987 UAGA cites the following among

the “key problems that hinder organ donation”:

“Failure to systematically approach family members

concerning donation.

“Failure to communicate the pronouncement of death

to next of kin.

“Failure to obtain adequate informed consent from

family members.” ULA ANAT GIFT 1987 Ref, citing

The Hastings Center Report, Ethical, Legal and Policy

Issues Pertaining to Solid Organ Procurement: A Report

of the Project on Organ Transplantation, 1985.

In addition, the 1987 UAGA includes required request provisions

to address these deficiencies. Far from rejecting familial consent

as an impediment to organ procurement, the 1987 UAGA more

strongly endorses and encourages it as a means of increasing the

supply of organs and tissue for transplantation than any prior

version. As noted in Perry v St. Francis Hospital, supra, at

1559-1560, non-consensual taking of tissue and organs at medical

examiner autopsies “is not conduct... that publically encourages

the making of anatomical gifts or that protects and balances the

conflicting interests ‘consistent with prevailing customs and desires

in this country.’ 8A U.L.A. 15.”

Petitioners’ argument that the UAGA supports

non-recognition of property rights in a decedent's body is

contradicted by its evolution. UAGA (1987), together with the

federal law requiring request for organ and tissue donation

(infra), spells the end of “conscription of organs” as advocated by

Petitioners.

12

2. Federal Policy Mandates Request and Consent.

Petitioners’ most errant and misleading argument asserts

that recognition of survivors’ property interests in decedents’

bodies will adversely impact on national law. (Petition, pp 22-26.)

As a matter of fact and law, the federal government has established

a national policy requiring that next of kin be informed of their

option to donate organs and tissue from deceased family members

and that their consent be obtained.

A National Task Force on Organ Transplantation was

created pursuant to 42 USC 274d and assigned to report to

various congressional committees on such subjects as “public and

private efforts to procure human organs for transplantation”, and

“identification of factors that diminish the number of organs

available”. (Report of the Task Force on Organ Transplantation,

April 1986, xix.) Following an extensive study, the Task Force

made recommendations which included the following:

“1. To facilitate organ donation the Task Force

recommends:

States enact legislation requiring coroners and medical

examiners to give permission for organ and tissue

procurement when families consent unless the

surgical procedure would compromise medicolegal

evidence. Further, the legislation should (1) require

coroners and medical examiners to develop policies

that facilitate the evaluation of all nonheart-beating

cadavers under their jurisdiction for organ and tissue

donation, and (2) provide the next-of-kin with the

opportunity to consider postmortem tissue donation.

The Task Force further recommends that coroners

develop agreements with local tissue banks to help

implement these policies.

“2. To facilitate the identification of potential donors

and to provide next-of-kin with appropriate

opportunities to donate organs and tissues, the Task

Force recommends that:

13

Hospitals adopt routine inquiry/required request policies

and procedures for identifying potential organ and

tissue donors and for providing next-of-kin with

appropriate opportunities for donation.

The Joint Commission on the Accreditation of Hospitals

i develop a standard that requires all acute care hospitals

to both have an affiliation with an organ procurement

agency and have formal policies and procedures for

identifying potential organ and tissue donors and for

providing next-of-kin with appropriate opportunities

for donation.

The Health Care Financing Administration incorporate

into Medicare conditions of participation for hospitals

certified under subpart U of the Code of Federal

Regulations, a condition that requires hospitals to have

routine inquiry policies.

All state legislatures formulate, introduce, and enact

The Commission for Uniform State Laws develop

model legislation that requires acute care hospitals to

develop an affiliation with an organ procurement agency

and to adopt routine inquiry policies and procedures.”

j (Task Force Report, supra, pp 2-3.)

Contrary to Petitioners’ argument that national policy favors

non-consensual tissue removal/conscription of organs, the Task

Force said:

“Although there are recurring proposals to extend

presumed consent from corneas to other tissues and

vascularized organs, both consensus derived from

experts in the field and public opinion polls sow that

there is little support for this mechanism as a way of

increasing the availability of donor organs. It is clear

that potential organ donors and their families want to

14

continue to be the primary decisionmakers. Thus, the

Task Force believes that present efforts should focus

on enhancing the voluntary system rather than on

reducing the role of actual consent.” Ibid., pp 30-31.

Congress has responded favorably to the Task Force Report.

“Following the recommendations of the Task Force,

Congress extended the statutory underpinnings of

federal policy on organ transpiantation in 1986 by

establishing the requirement that a hospital have a

written protocol for making routine inquiries of potential

organ donors as a condition for participation in

Medicare. Congress also required that hospitals

conducting organ transplants be members of the Organ

Procurement and Transplantation Network in order to

participate in Medicare or Medicaid. It further required

that in order for organ procurement organizations to be

reimbursed for procurement costs, they must compiy

with the provisions of the 1984 legislation and be

members of the OPTN.” (Journal of Health Politics,

Policy and Law, Vol. 14, No. 1 (1989), pp 206-207,

citing Pub. L. No. 99-509, sec. 9-318; 42 USC 1320b-8.)

“... all hospitals participating in Medicare are now

required to establish a written policy of required request

to ensure that all prospective donors (i.e. individuals

known by the hospital to be dying) or their next of kin

are asked about their willingness to donate organs for

transplantation.” [bid., p 210.

Within the past year, Congress has directed the Office of

Technology Assessment to conduct a study on the effect of

requiring hospitals to affiliate with Organ Procurement Agencies

in their service area on the efficacy and fairness of organ

procurement and distribution. Pub. L. No. 103-432, Title I, sec.

155(b).

It must be concluded that to the extent the federal

government has established policies regarding procurement of

tissues from deceased persons for transplantation purposes, those

policies attempt to balance each of the following values:

15

“Saving lives and improving the quality of life.

“Respecting individual autonomy.

“Promoting a sense of community through acts of

generosity.

“Showing respect for the decedent.

“Showing respect for the wishes of the family.” (Task

Force Report, supra, p 28.)

As noted by the Task Force, Petitioners’ zealous attempt to

increase the supply of corneas non-consensually contravened all

but the first of these values and Plaintiffs’ opposition therefore

was readily foreseeable. Ibid.

Recognition that a survivor's interest in the body of a

deceased loved one warrants due process protection is consistent

with the values expressed above and with the developing national

policy requiring knowing and voluntary consent in making organ

and tissue donation. Without consent, tissue harvesting cannot be

said to be: donative.

Ill

CONCLUSION

The foregoing has shown that the decision of the Sixth Circuit

was clearly correct in finding that Michigan law grants survivors of

deceased persons sufficient interests in their bodies to warrant

due process protection. Being a matter of interpreting state law,

this court should be loathe to grant certiorari to further review

such interpretation. Beyond that, it appears that the developing

law and policy concerning organ and tissue donation respects and

reveres the rights of such survivors as these Plaintiffs.

Given the developments, especially in the federal law requiring

request and consent for organ and tissue harvest on pain of losing

Medicare funding, it can be predicted that few, if any, other

medical examiners and hospitals will involve themselves in acts of

non-consensual tissue harvest as occurred here. Certiorari ought

16

not to be granted in a case presenting no general questions likely

to recur in the future. Watt v Alaska, 451 US 259, 273; 101 S Ct

1673; 68 L Ed 2d 80, 93 (1981).

For all of these reasons, the Petition for Certiorari herein,

ought to be denied.

Respectfully submitted,

Kenneth K. Wright (P29445)

Counsel of Record

John W. Grigg (P37424)

Seward, Tally & Piggott, P.C.

1009 Washington Avenue

Bay City, MI 48708

(517) 892-6551

Dated: October 11, 1995

App. 1-1

january 14, 1988

Dr. M. B. Goldberger

662 Lakewood Circle West

Delray Beach, Florida 33445

Dear Dr. Goldberger:

As per our telephone conversation on January 13, 1988, I am

sending you a proposed protocal for your consideration and

evaluation. I would, of course, appreciate any input as to how the

whole process could be done more efficiently or expeditiously.

As I have stated to you on the phone, the Mid Regional Tissue

Center will pay the total cost for the following expenses (expenses

are based on per case):

Ambulance (from hospital to funeral home)..... $ 40.00

Use of prep room at the funeral home ......... 125.00

Supplies (surgical/non surgical)................. Unknown

UPS (Toxocology, etc.).........0.0.cceceeeeeees 10.00

Personnel:

Pathologist performing autopsy (Dr. Hines) ..... 75.00

SE tad dio abn ihielinknsbeesentadesen tess es 17.00

Rhea ch 40040 44460046 h0s occdeereen es 24.00

ee eS Seen eer eee 27.00

Minimum total cost per case .............. $318.00

Of course, there has to be several conditions to this agreement, as

it would not be cost effective for us to do otherwise:

1. Medical Examiner cases which come from another county

(i.e. Tuscola County) are responsible to pay Dr. Hines his

professional fee for autopsies. (I have already spoken to Dr.

Hines about this and he agrees.)

2. Mid Regional Tissue Center will not subsidize costs for any

medical examiner cases in which tissue has been previously

removed by any of the three following organizations:

App. 1-2

A. OPAM (Organ Procurement Agency of Michigan, located

in Ann Arbor.)

B. MEB (Michigan Eye Bank, located in Ann Arbor.)

C. Regional Tissue Center (located at Sparrow Hospital in

Lansing.)

1213 S Euclid

Bay City, Michigan 48706

517/684-4240

A Non-Profit Michigan Corporation

January 14, 1988

Dr. Goldberger

Page 2

3. If we do not get any tissue donation from a medical

examiner case, the county pays Dr. Hines (or any other

pathologist doing the autopsy) his professional fee and the

Mid Regional Tissue Center will pick up the rest of the

expenses. (This rarely happens because we usually get at

least the corneas.)

Dr. Hines and myself have discussed this program in great detail

over the last three-four months. We both agree that there are

several aspects to this program which would be more beneficial to

the county and to the Mid Regional Tissue Center, if the medical

examiner system was moved out of the hospitals:

1. Immeasurable public service being performed, in that such

needed human tissue would no longer be wasted. (Due to

hospital politics.)

2. Reduction of cost in running the medical examiner system.

Possibly the money saved could be used to start other

needed medical programs in the county.

App. 1-3

I anxiously await the hear from you and hope that we could start

this program as soon as possible. Thank you for your time and

consideration.

Sincerely,

Armando Herrera

Chief Executive Officer

Mid Regional Tissue Center

1213 S Euclid

Bay City, Michigan 48706

517/684-4240

A Non-Profit Michigan Corporation

App. 2

Saginaw County Medical Examiner System

1600 N. MICHIGAN AVENUE-SAGINAW, MICHIGAN 48602

TELEPHONE: (517) 771-0819

May 4, 1988

Armando Herarra

1213 S. Euclid

Bay City, MI 48706

Dear Mr. Herarra:

In accordance with our numerous conversations, it has now been

determined for medical examiner cases of Saginaw County, that

you will be responsible for the cost of:

Transportation to the morgue

Dictating of autopsy reports

Cost of the deiner

Pathologist’s fee, (all if transplant tissues are recovered or

one-half if not recovered).

If there are any questions, please contact me.

Sincerely,

M. B. Goldberger, D.O.

Medical Director

MBG/dmt

eT RNa emt A PTT acer nD he es lt EE pea a A lt Di ee ee ee ee ae —

App. 3-1

ORGAN PROCUREMENT LAWS OF THE STATES

The following fourteen (14) states have enacted the UAGA 1968,

which does not have a non-consensual medical examiner organ or

tissue removal provision:

I oc oe Code 1975, §§ 22-19-40 et seq.

MN es oes ctw pas AS 13.50.010 et seq.

NS e ieee Hess an I.C.A. § 142A.1 et seq.

MINS Dds wikis Cieces scans K.A.S. 65-3209 et seq.

Ses at eeeryec ss LSA-R.S. 17:2351 et seq.

ER hasta basccvesinues. 22 M.R.S.A. §§ 2901 et seq.

EES eg ara an re V.A.M.S. §§ 194.210 et seq.

IN a Poe cdeswin R.R.S.1943, §§ 71-4801 et seq.

WOE IC cis cuss ciechess N.J.S.A. 26:6-57 et seq.

PO I onesie 6b kan cons NMSA 1978, §§ 24-6-1 et seq.

Riso indsans ky eon sas ORS 97.250 et seq.

South Carolina.............. Code 1976, §§ 44-43-310 et seq.

South Dakota............... SDCL 34-26-20 et seq.

bh | ACNE le nN isp ame W.S.1977, §§ 35-5-101 et seq.

The following nine (9) states have adopted the amended UAGA

allowing non-consensual corneal removal at Medical Examiner or

coroner autopsies provided there is no known objection by the

next of kin, ie. the “induced ignorance” to which Brotherton

referred:

Connecticut ................ C.G.S.A. § 19a-281

PN is Hvis Gece DE ST TI 29, $4712

SOI i ky wre ws bans «hs 9 GA ST 31-23-6

ee eee KRS 311.165 et seq., the

exception being at § 311.187

ce. Oe eee MCLA 333.10101 et seq., the

exception being at 333.10202

North Carolina.............. G.S. §§ 130A-402 et seq.

App. 3-2

po RAS ra Te Li teat hha R.C. §§ 2108.01 et seq., which

retains the provision found

unconstitutional in Brotherton.

Ohio has since added §2108.021

requiring hospitals to adopt

required request protocols.

NR a 5 eae od saa pd Tex Health & S § 693.012

ok ee ee Code 16-19-1 et seq., the

exception being at 16-19-3a.

The following twenty-three (23) states have adopted the UACA

1987, which requires that medical examiners or coroners ascertain

whether the decedent expressed intent to make an organ or tissue

donation, obtain consent from next of kin, or make a reasonable

effort to contact the next of kin, inform them of their option to

make a donation, and obtain their consent before removing any

organ or tissues.

I ak ness oe eto A.R.S. § 36-851 — but only

when the motor vehicle division

is closed and after due diligence

next of kin cannot be contacted.

NE Bi os ext Sawkatas A.K.A. §§ 20-17-601 et seq.

ens 5 Sead a See West's Ann. Cal. Health & Safety

Code, §§ 7150 et seq., with

specific requirements as to what

reasonable effort shall entail,

including duration, generally 12

hours, but less for corneas and

pituitaries.

Ce a er eee C.R.S.A. § 30-10-620 —

requiring reasonable attempts to

contact for a reasonable time.

ee ee Ne aes HRS $§ 327-1 et seq.

GE cia Gaveskwiteiudia tes LLC. §§ 39-3401 et seq.

App. 3-3

AD aA pen eet Bc, IN ST 36-2-14-19 — requiring

reasonable attempt to contact

next of kin for 6 hours.

WUNB: 5 co tesn's cw tanta MA-ST 113 §14 — requiring

one (1) hour good faith effort to

notify next of kin.

Massachusetts............... M.G.L.A. 113 § 14 — requiring

one (1) hour good faith effort to

notify next of kin.

Minsiostle 6.5. .207 AGM M.S.A. §§ 525.921 et seq.

| Ee ater, - Spent MCA 72-17-101 et seq.

TIN, sii copii ois same NRS 451.500 et seq.

New Hampshire ............ NH ST § 291-A:7-b with limited

immunity.

CUI 4 oo Sn eaees cae 63 O.S.A. § 2210.1

North Dakota............... NDCC 23-06.2-01 et seq.

Pomenneess sisi. Co. es 20 Pa. C.S.A. § 8641

SE SE 5 Soe cee G.L. 1956 §§ 23-18.6-1 et seq.

TOUR = is corinne cis T.C.A. § 68-30-204 — effort to

contact next of kin shall continue

until further delay would violate

existing medical standards.

CGN... vs aan eaeactes see U.C.A. 1953, 26-28-1 et seq.

WOO se sckescaeceee ees 18 V.S.A. §§ 5238 et seq.

VINEE: 6. sca sieges send Code 1950, §§ 32.1-289 et seq.

We ioe. OC aah West’s R.C.W.A. 68.50.500

et seq.

Wren icc ek cose chee W.S.A. 157.06

App. 3-4

The remaining four (4) states offer even greater protection to the

rights of next of kin than the UAGA 1987. Notable is the extensive

revamping of Florida statutes and regulations since the decision in

Florida v Powell, supra, which would specifically preclude the

acts underlying that case or the present action.

I oo es cv dee

Se Se et eee

Fl. Legis. 95-423 (eff. 6/18/95) —

amended or added numerous

provisions, creating a state organ

and tissue donor registry,

requiring every hospital to check

with the registry and/or obtain

consent from next of kin before

any organ or tissue removal, and

for certification of all organ and

tissue procurement agencies. 11

FL ADC r. 11G-1 prohibits a

medical examiner from allowing

an organ or tissue procurement

agency to provide employees or

pay the salaries of any members

of a medical examiner's office.

59 FL ADC r. 59A-1 defines

“donation” as “the free and

voluntary gift of one or more

organs or tissues for the purpose

of medical research or

transplant.”

IL St Ch 755 §55/1 — Upon

request from specified entities,

coroner or medical examiner

may remove cornea for

transplant after “reasonable good

faith effort” to contact next of

kin.

App. 3-5

ne) errs Code 1972 § 41-61-71 —

requires consent or failure to

determine next of kin after

reasonable effort. Perhaps

following the suggestion in the

Duke University Journal of

Health Politics, Policy and Law,

Vol. 14, No. 1, Spring 1989, pp

191-227, §41-39-9 allows a

person to contract to make an

organ or tissue donation after

death. Revocable, provided seller

repays monetary consideration

plus interest at six percent (6%).

apt . ., EERE TEER TTS NY Pub. Health §4222 — grants

immunity to coroner or medical

examiner as to cornea or

pituitary removal only when

consent has been obtained.