Amaker v. King County

• Decision Date: 26 August 2008
• Docket Number: No. 07-35241.,07-35241.
• Citation: 540 F.3d 1012
• Parties: Robinette AMAKER, Plaintiff-Appellant, v. KING COUNTY, a municipal corporation; Stanley Medical Research Institute, a foreign corporation; E. Fuller Torrey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

540 F.3d 1012

Robinette AMAKER, Plaintiff-Appellant, v. KING COUNTY, a municipal corporation; Stanley Medical Research Institute, a foreign corporation; E. Fuller Torrey, Defendants-Appellees.

No. 07-35241.

United States Court of Appeals, Ninth Circuit.

August 26, 2008.

Stephen L. Bulzomi (argued), Jeremy A. Johnston, Messina Bulzomi Christensen, Tacoma, WA, for the appellant.

Grant S. Degginger (argued), June K. Campbell, Ryan P. McBride, Lane Powell PC, Seattle, WA, for the appellees.

D.C. No. CV-05-01470-MJP, Western District of Washington, Seattle.

Before: RICHARD R. CLIFTON and N. RANDY SMITH, Circuit Judges, and BRIAN E. SANDOVAL,^* District Judge.

ORDER CERTIFYING QUESTIONS TO THE WASHINGTON SUPREME COURT

ORDER

ALEX KOZINSKI, Chief Judge.

In this case arising out of diversity jurisdiction, we are asked to decide whether Robinette Amaker, the surviving sister of Bradley Gierlich, may bring suit against defendants King County, Stanley Medical Research Institute ("SMRI"), and E. Fuller Torrey, after the King County Medical Examiners Office ("KCMEO") provided Bradley's¹ brain, liver, and spleen tissue to SMRI for use in medical research without obtaining consent from either Bradley or his next of kin.

The issues that we address here relate to Amaker's first two causes of action. The district court concluded that Amaker, as Bradley's sister, lacked standing to raise a claim for tortious interference with a corpse. At the time of Bradley's death his next of kin, as defined by the Revised Code of Washington ("RCW") § 68.50.160, was Robert Gierlich, Bradley's father. The district court concluded that Robert was the only individual with the right to bring a tortious interference claim because only he had the right to dispose of Bradley's corpse. See Wright v. Beardsley, 46 Wash. 16, 89 P. 172 (Wash.1907); Gadbury v. Bleitz, 133 Wash. 134, 233 P. 299 (1925). Additionally, the district court dismissed Amaker's claim that the defendants violated the Washington Anatomical Gift Act ("WAGA"), RCW § 68.50.520 et seq. (repealed by Wash. Laws 2008, ch. 139, § 31), because it concluded that the WAGA does not create an implied private right of action.

Ultimately, we conclude that the state law is unsettled with respect to both of these claims, and the answers to the questions we pose are dispositive of the issues before us. Specifically, we ask the Washington Supreme Court to determine whether Robinette Amaker, the decedent's sister, has standing to bring a claim for tortious interference with a corpse, and whether the WAGA creates a private right of action.

I

Before addressing the questions certified to the Washington Supreme Court, we first summarize the material facts and procedural history. Bradley Gierlich died of an apparent drug overdose on October 13, 1998, in Seattle, Washington. He was survived by his father, Robert Gierlich, his sister, Robinette Amaker, and his aunt, Teresa Wright. Robert and Amaker lived in Florida at the time, while Wright lived in Seattle. Bradley died intestate and left no instructions to his surviving family members as to the disposition of his remains.

Because of the circumstances surrounding Bradley's death, King County took possession of Bradley's body and KCMEO pathologist, Dr. Menchel, performed an autopsy on Bradley's body. See RCW § 68.50.010. At the time of the autopsy, Dr. Menchel attempted to contact Bradley's next of kin, Robert, in order to get consent to donate some of Bradley's organs and tissues for research. Dr. Menchel was unable to reach Robert in Florida despite numerous attempts to contact him by telephone. Although Dr. Menchel admits that he was unable to reach Robert, he claims that he spoke extensively with Wright about Bradley's medical history and the organ donation process. Dr. Menchel contends that he received assurance from Wright that Robert would consent to the organ donation. Because of these assurances, Dr. Menchel sent Robert a consent form via mail and proceeded to harvest the organs, on the assumption that Robert would eventually agree to donate his son's organs. Wright does not recall having a discussion with Dr. Menchel and she says that she would not have indicated that Robert was willing to consent to organ donation. In any event, it is undisputed that KCMEO sent parts of Bradley's brain and other tissue to SMRI without first obtaining consent from Robert Gierlich.

KCMEO also failed to obtain Amaker's consent to donate Bradley's organs despite the fact that Amaker was in Seattle shortly after Bradley's death in order to attend to the funeral arrangements. Amaker alleges now that she would not have consented to the organ donation had they asked because Bradley, before his death, indicated that he did not wish to have his organs donated.

Amaker learned of the disposition of Bradley's remains years later when a reporter contacted her and asked whether Bradley's brain had been used for research. The reporter told Amaker that he was investigating allegations that brains were being harvested without family consent in order to study schizophrenia and bipolar disorder. This prompted her to investigate further, and Amaker found that her brother's tissue had been provided by KCMEO to SMRI for research without any record of anyone in her family consenting to the donation. Upon learning that SMRI had Bradley's brain tissue, Amaker requested that they test the tissue for CADASIL, a degenerative brain disease that had afflicted her father before his death in 2005. When her brother's sample showed that he too was afflicted with CADASIL before his death, Amaker began taking preventative medication in order to ward off the effects of the disease.

Amaker then filed suit against King County, SMRI, and the Director of the Stanley Brain Research Laboratory, E. Fuller Torrey, in Pierce County Superior Court on August 19, 2005 alleging violations of state law tortious interference with a corpse, negligent infliction of emotional distress, conversion, civil conspiracy, invasion of privacy, violations of the WAGA, and the consumer protection act. The defendants removed the case to federal district court in the Western District of Washington. Prior to summary judgment, plaintiff conceded dismissal of all claims except the claims for common law interference with a corpse, civil conspiracy, invasion of privacy, and violations of WAGA.

The district court granted summary judgment to the defendants on Amaker's invasion of privacy claim and the civil conspiracy claim because harvesting and shipping Bradley's brain did not constitute "publicity" and because there was no evidence that SMRI and KCMEO agreed to unlawfully harvest organs without donor consent. Amaker v. King County, 479 F.Supp.2d 1151, 1157-59 (W.D.Wash.2007). In a subsequent order, the district court acknowledged that the plaintiffs had sufficiently pled a state law tortious interference with a corpse claim, but concluded that Amaker lacked standing to pursue the claim because she was not Bradley Gierlich's next of kin at the time of his death. Amaker v. King County, 479 F.Supp.2d 1159 (W.D.Wash.2007). Finally, the district court granted summary judgment in favor of the defendants because it concluded that the WAGA did not create an implied private right of action. Amaker v. King County, 479 F.Supp.2d 1162 (W.D.Wash.2007). Amaker appealed the district court on all remaining claims. We dispose of Amaker's invasion of privacy and civil conspiracy claims in a memorandum disposition filed concurrently with this order. We now turn to the questions to be certified to the Washington Supreme Court.

II

A

The first issue we confront is whether Amaker, as the decedent's sister, is among the class of individuals that has standing to bring a claim for tortious interference with a corpse under Washington law. RCW § 2.60.020 permits us to certify questions of state law to the Washington Supreme Court when "it is necessary to ascertain the local law of[the] state in order to dispose of such proceeding and the local law has not been clearly determined." We certify this question to the Washington Supreme Court because we conclude that the Washington law on this question is unsettled and because the answer to the question is dispositive of Amaker's common law claim.

To begin with, it may help to place this issue in context. There are at least two general approaches to the problem of who may bring a claim for tortious interference with a corpse. The traditional approach to standing, most commonly associated with the Restatement of Torts, identifies the tort as a claim deriving from a "quasi-property" right. See Carney v. Knollwood Cemetery Ass'n, 33 Ohio App.3d 31, 514 N.E.2d 430, 434 (1986). Under this theory, the decedent's survivors have the right to bury or otherwise dispose of the body without interference, and the cause of action is somewhat analogous to tortious interference with a contract. Id. In order to bring a claim under this theory, the person bringing the suit must have the legal right to disposition of the body:"[o]ne who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon a body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body." Id. (citing 4 Restatement (Second) of Torts § 868 (1979)) (emphasis added).

A number of jurisdictions have followed this theory, and most have concluded that only the class of people designated either by statute or common law as the "next of kin" may bring a claim for interference with a corpse. See, e.g., O'Dea v. Mitchell, 350 Mass. 163, 213 N.E.2d 870, 872 (1966) ("The absence of a surviving spouse and of contrary directions by the decedent must be alleged by the next of kin in order to establish their standing to sue."); Siver v Rockingham Mem'l Hosp., 48 F.Supp.2d 608, 612 (W.D.Va.1999) ("[S]tanding is...