Brotherton v. Cleveland
| Decision Date | 14 April 1999 |
| Docket Number | 96-3034 and 96-3085,Nos. 94-3465,s. 94-3465 |
| Citation | 173 F.3d 552 |
| Parties | Deborah S. BROTHERTON, individually, on behalf of those members of the class herein, and as administratrix of the estate of Stephen S. Brotherton; Melissa Brotherton; Carrie Brotherton, Plaintiffs-Appellants (94-3465; 96-3034), Plaintiffs-Cross-Appellees (96-3085), v. Frank P. CLEVELAND, M.D.; Bethesda, Inc., Defendants-Appellees, Eye Bank Association of America, Inc., Defendant-Cross-Appellant (96-3085). |
| Court | U.S. Court of Appeals — Sixth Circuit |
John H. Metz (argued and briefed), Cincinnati, OH, for Plaintiffs-Appellants.
Bruce B. McIntosh (argued and briefed), McIntosh, McIntosh & Knabe, Cincinnati, OH, for Defendant-Appellee Bethesda, Inc. in No. 94-3465.
Gordon M. Strauss (briefed), Christian J. Schaefer (argued), Hamilton County Prosecutor's Office, Civil Division, Cincinnati, OH, for Defendant-Appellee Frank P. Cleveland, M.D., in No. 96-3034.
Stephen A. Bailey (argued and briefed), Martin, Bailey & MacDonald, Cincinnati, OH, for Defendant-Appellant Eye Bank Association of America, Inc. in No. 96-3085.
Before: BOGGS and MOORE, Circuit Judges; and DOWD, * District Judge.
Deborah S. Brotherton brought two complaints, alleging that the defendants violated Ohio law and the Federal Constitution by removing her dead husband's corneas over her objections. The cases were consolidated; the district court certified a class of plaintiffs; and parties now appeal from various orders. In No. 96-3085, Defendant Eye Bank Association of America cross-appeals from the district court's decision that, as a private party, the Association did not enjoy Eleventh Amendment immunity from Brotherton's suit. In Nos. 94-3465 and 96-3034, Brotherton appeals from the district court's orders granting Eleventh Amendment immunity to Defendant Dr. Frank Cleveland, in his official capacity as Hamilton County Coroner; denying Brotherton's motion for partial summary judgment as to liability; and granting summary judgment to Defendant Bethesda Hospital on the basis of issue preclusion. Because the Eleventh Amendment does not bar Brotherton's suit against Dr. Cleveland in his official capacity, we reverse the grant of summary judgment in his favor; we affirm the other final judgments of the district court.
This case arose from allegations of the theft of body parts from the dead. This appeal concerns consolidated cases that have been ongoing since 1989. Given this tangled posture, we begin by relating some facts and procedural history.
In 1983, Ohio passed a law to permit county coroners to harvest corneas for medical use. Ohio Revised Code § 2108.60 took effect in 1984. It reads:
(A) As used in this section:
...
(2) "Eye bank" means a nonprofit corporation that is organized under the laws of this state, the purposes of which include obtaining, storing, and distributing corneas to be used for corneal transplants or other medical or medical research purposes, and that is exempt from federal taxation....
(3) "Eye bank official" means a person authorized by the trustees of an eye bank to make requests for corneas to be used for corneal transplants or other medical or medical research purposes.
(4) "Eye technician" means a person authorized by the medical director of an eye bank to remove the corneas of a decedent.
...
(B) A county coroner who performs an autopsy pursuant to section 313.13 of the Revised Code may remove one or both corneas of the decedent, or a coroner may authorize a deputy coroner, physician or surgeon licensed pursuant to section 4731.14 of the Revised Code, embalmer authorized under section 2108.071 of the Revised Code to enucleate eyes, or eye technician to remove one or both corneas of a decedent whose body is the subject of an autopsy performed pursuant to section 313.13 of the Revised Code, if all of the following apply:
...
(2) An eye bank official has requested the removal of corneas and certified to the coroner in writing that the corneas will be used only for corneal transplants or other medical or medical research purposes;
...
(4) The coroner, at the time he removes or authorizes the removal of the corneas, has no knowledge of an objection to the removal by [the decedent, his spouse, his next of kin, his legal guardian, or someone authorized to dispose of his body].
...
(C) Any person who acts in good faith under this section and without knowledge of an objection, as described in division (B)(4) of this section, to the removal of corneas is not liable in any civil or criminal action based on the removal.
OHIO REV.CODE ANN. § 2108.60 (Banks-Baldwin 1998) (hereinafter "the removal statute"). Ohio counties elect individuals to serve four-year terms as county coroners. See OHIO REV.CODE ANN. § 313.01 (Banks-Baldwin 1998). The events precipitating this appeal occurred in Hamilton County (Cincinnati), Ohio and involved its county coroner at the time, Dr. Frank Cleveland.
The removal statute permits the harvesting of corneas only if an eye bank official requests their removal and certifies that an eye bank will use the corneas for medical or medical research purposes. See OHIO REV.CODE ANN. § 2108.60(B)(2) (Banks-Baldwin 1998). The Eye Bank Association of America ("EBAA") is a non-profit corporation with member eye banks in forty states. EBAA has a member in Cincinnati, the Cincinnati Eye Bank for Sight Restoration, Inc. ("CEB"). On April 25, 1985, CEB sent a letter to Dr. Cleveland, petitioning the coroner to allow CEB "to remove the corneas of any coroner's case which falls within the guidelines of [O.R.C. § 2108.60]."
Dr. Cleveland responded by directing his subordinates to "cooperate with the Cincinnati Eye Bank to obtain as many corneas as possible." The removal statute, at § 2108.60(4), permits removals only when the coroner "has no knowledge of an objection to the removal by [the decedent or certain others]." Dr. Cleveland established a policy of "intentional ignorance," encouraging subordinates not to seek information on objections to corneal removal. This court has described that approach as a policy "not to review medical records or paperwork pertaining to a corpse prior to the removal of corneas." Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir.1991) ("Brotherton I "). When the coroner's office learned of a death, it would contact CEB, which would send a technician to remove the corneas. Eventually, Dr. Cleveland learned that CEB personnel started inquiring about the existence of objections to removal. In response, he approved a memorandum to his subordinates which read, in part, While the joint appendix does not reveal Jack and Carol's identities or job titles, we presume that they were not necessarily safeguarding the best interests of inquisitive eye bank personnel or next of kin.
On February 15, 1988, EMS personnel took Steven Brotherton ("Steven") to the Emergency Room of Bethesda Hospital (North) in Hamilton County. After the hospital staff pronounced Steven dead, they asked his wife, Deborah Brotherton ("Brotherton"), if she would permit an anatomical gift. She refused, citing Steven's beliefs, and the hospital documented this refusal in its record on the "Report of Death." To determine whether Steven committed suicide, the hospital released his body to the county coroner, Dr. Cleveland, whose staff performed an autopsy on February 16. The coroner's office contacted CEB, informed CEB that it could harvest Steven's corneas, and permitted CEB to send a technician to remove the corneas. Brotherton learned about this only when she reviewed the autopsy report, which remarked that Steven's "corneae are absent."
On February 9, 1989, Brotherton filed a complaint in the United States District Court for the Southern District of Ohio. Acting individually and as the administratrix of Steven's estate, and on behalf of her minor children, Brotherton sued, among others, Dr. Cleveland (in his personal and official capacity), EBAA, CEB, Bethesda North, and Bethesda, Inc., the parent corporation of Bethesda North. 1 Attacking the policy and practices of the coroner, hospital, and eye banks, and challenging the constitutionality of the cornea removal statute, Brotherton sought injunctions and damages under 42 U.S.C. § 1983 for due process and equal protection violations. She also asserted pendent Ohio common-law tort claims.
On August 11, 1989, the district court dismissed the case. The judge held that Brotherton had no property interest in Steven's body, rejected her equal protection claim, and dismissed the state claims without prejudice. See Brotherton I, 923 F.2d at 479. Brotherton filed a timely appeal. In 1991, this court decided Brotherton I, in which we reversed the district court, reaching only the due process issue. We explained that Brotherton had a property interest in Steven's body, that Ohio failed to provide necessary predeprivation procedures, and that "the policy and custom of the Hamilton County coroner's office is an established state procedure necessitating predeprivation procedures." Id. at 481-82.
On February 14, 1990, before this court decided Brotherton I, Brotherton filed a second complaint in the Southern District of Ohio. That complaint resembled the first, although it included an additional plaintiff whose decedent perished at Bethesda North and suffered the removal of corneas without the permission of the next of kin. As in the first complaint, Brotherton sought injunctions and damages under 42 U.S.C. § 1983 for due process and equal protection violations; she also asserted unspecified state common-law tort claims. 2 On July 6, 1990 (before this court announced its decision in Brotherton I ), the district court...
To continue reading
Request your trial
-
Bojicic v. DeWine
..."are sued simply for complying with state mandates that afford no discretion, they act as an arm of the State." Brotherton v. Cleveland , 173 F.3d 552, 566 (6th Cir. 1999) ; See also Ermold v. Davis , 936 F.3d 429, 435 (6th Cir. 2019) (county clerk who acted pursuant to statute stating that......
-
Brown v. City of Pittsburgh
...the court on interlocutory appeal], we have discretion to deny an appeal that has no other jurisdictional basis"); Brotherton v. Cleveland, 173 F.3d 552, 568 (6th Cir.1999) ("[W]e decline to exercise whatever discretionary pendent appellate jurisdiction we may have."). We see no compelling ......
-
Rodgers v. Banks
...suits for money damages under the Eleventh Amendment." Alkire v. Irving, 330 F.3d 802, 814 (6th Cir.2003) (citing Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir.1999)). Specifically, the Eleventh Amendment bars § 1983 suits seeking money damages against states and against state employe......
-
Smith v. Oakland County Circuit Court
...or [just] interpret it as placing significant weight on one factor of a multi-factor test." Id. at 812 (quoting Brotherton v. Cleveland, 173 F.3d 552, 560-61 (1999)). In a subsequent opinion, the Sixth Circuit discussed the factor(s) issue in terms that appear to flesh out this issue. In S.......
-
Genetic liberty, genetic property: protecting genetic information.
...Amendment, when the State removed the corneas of the deceased children without the parents' permission); Brotherton v. Cleveland, 173 F.3d 552, 555 (6th Cir. 1999) (permitting widowed plaintiff to pursue civil claim against a physician for nonconsensual removal of her deceased husband's cor......
-
The neglect of the umbilical cord: Ohio's failure to adequately promote banking of umbilical cord blood stem cells and the need for new legislation.
...body does not rise to the level of constitutional protection. However, a contrary conclusion was reached in Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999). In Brotherton, the surviving wife filed suit after her husband's corneas were removed, as permitted by Ohio's limited coroner re......