Chesher v. Neyer
| Citation | 477 F.3d 784 |
| Decision Date | 16 February 2007 |
| Docket Number | No. 05-4332.,No. 05-4273.,No. 05-4256.,No. 05-4257.,No. 05-4275.,No. 05-4274.,05-4256.,05-4257.,05-4273.,05-4274.,05-4275.,05-4332. |
| Parties | Jacqueline CHESHER et al., Plaintiffs-Appellees, v. Tom NEYER et al., Defendants, Carl L. Parrott, Jr., M.D. (05-4256); Jonathan Tobias, M.D. (05-4257); Gary Utz, M.D. (05-4273); Terry Daly (05-4274); Robert Pfalzgraf, M.D.(05-4275); Hamilton County, Ohio (05-4332), Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, Glenn V. Whitaker, Vorys, Sater, Seymour & Pease, Cincinnati, Ohio, Jamie M. Ramsey, Keating, Muething & Klekamp, Cincinnati, Ohio, for Appellants. Alphonse A. Gerhardstein, Laufman & Gerhardstein, Cincinnati, Ohio, for Appellees. ON BRIEF: Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, Glenn V. Whitaker, Victor A. Walton, Jr., Michael L. Rich, Vorys, Sater, Seymour & Pease, Cincinnati, Ohio, Jamie M. Ramsey, Louis Francis Gilligan, Keating, Muething & Klekamp, Cincinnati, Ohio, for Appellants. Alphonse A. Gerhardstein, Laufman & Gerhardstein, Cincinnati, Ohio, Stanley M.
Chesley, Paul M. De Marco, Renee A. Infante, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, for Appellees.
Before BATCHELDER, GILMAN, and ROGERS, Circuit Judges.
ROGERS, J. (p. 806), delivered a separate opinion concurring in part and dissenting in part.
In 2001, Jaqueline Chesher and other named plaintiffs initiated a class action lawsuit against Hamilton County, several individuals employed at the Hamilton County Morgue, and Thomas Condon, a private photographer. Chesher's claims stem from an "art project" that Condon undertook at the Morgue in which he photographed dead bodies without the knowledge or consent of the decedents' relatives. The employee defendants allegedly engaged in a civil conspiracy and inflicted emotional distress on the class members by facilitating the project and later covering up their involvement. Asserting statutory immunity under Ohio law, the employee defendants moved for summary judgment. The district court denied their motions.
Subsequently, the employee defendants filed these interlocutory appeals from the district court's judgment. Hamilton County also appealed, arguing that the district court improperly denied the County summary judgment regarding Chesher's negligent-infliction-of-emotional-distress claim, even though that issue was not before the court. For the reasons set forth below, we AFFIRM the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.
The substance of Chesher's claims arises from the heavily publicized discovery in January of 2001 of at least 317 allegedly improper photographs of dead bodies taken at the Hamilton County Morgue. Taken between August of 2000 and mid-January of 2001, the photographs depict the bodies in unnatural "artistic" poses, often employing props for effect. In a prior appeal that resolved a disputed issue of attorney-client privilege, this court referred to the factual circumstances as "appalling," and then-Coroner Dr. Carl Parrott has characterized the photographs as "deplorable." Chesher v. Allen, 122 Fed. Appx. 184, 185 (6th Cir.2005). A criminal investigation and trial revealed that Condon had taken the vast majority of the offending photographs. Also found at Condon's studio were a small number of questionable photographs taken by Dr. Jonathan Tobias, a pathology fellow employed by the County Coroner's Office. Chesher alleges that the County defendants' involvement in Condon's actions, either through negligence, recklessness, or a cover-up effort, substantiates the civil claims asserted in this action.
At the time the offending photographs were taken, Parrott was the Hamilton County coroner. He testified in his deposition that, as coroner, he was the "top policy maker with respect to conducting any duties and faithfully preserving the integrity of those bodies while they are in the County's custody." In 1999, Parrott began to explore the idea of creating an autopsy-training video for use by hospitals and law enforcement. He instructed Terry Daly, his administrative aide, to set up a meeting for the purpose of discussing this video project.
Daly invited Condon and film producer Ernie Waits, Jr. to meet with himself, Parrott, and Parrott's administrative assistant Rhonda Gros at the Coroner's Office in 1999. At that first meeting, Parrott explained to the group his idea for the training video and noted that he would seek legal counsel concerning issues of consent for the proposed video footage. As part of the instructional video or as a separate project, Parrott intended to showcase a rare neck-dissection procedure in which his office had developed a particular expertise.
Condon and Waits next met with representatives from the Coroner's Office in June or July of 2000. This meeting included the same attendees, except that Deputy Chief Coroner Dr. Robert Pfalzgraf attended in place of Gros. Daly and Waits testified in their depositions that, at either the first or second meeting, Condon mentioned that he would like to pursue an independent project of his own involving artistic photographs of dead bodies, and that he had brought along with him one or more books of such photographs to illustrate his intentions. Chesher alleges that one of these books was authored by Germano Celant, an Italian art critic, and included photographs of cadavers posed with props similar to the offending photographs later taken by Condon.
According to Daly, Parrott evinced little reaction to Condon's proposed art project, but stated something to the effect that "we can consider it" and that he had "seen things like that before." An audiotaped conversation between Daly and Staff Pathologist Dr. Gary Utz that took place later, after the discovery of the photographs, similarly refers to Condon's art-project proposal at the meeting:
Utz: Didn't he [Parrott] know that Thomas [Condon] had an interest in doing this stuff?
Daly: We all did . . . verified that that goddamn book was in that first fucking meeting and everybody in that goddamn room looked at it.
(Omission in original.) Parrott claimed in his deposition that he could not remember whether Condon explained his individual project or exhibited any artistic books at the meetings, but added "I can't say that it was not [discussed]."
By the time of this second meeting, Parrott had solicited and received a legal opinion from the Hamilton County Prosecutor's Office advising him that he could produce the training video without obtaining the consent of the families of the autopsy subjects so long as the video was not used for commercial purposes. The opinion further advised Parrott to take steps to obscure identifying features of any bodies filmed. Although Parrott discussed this advice at the meeting, he stated in his deposition that he instructed Daly and Pfalzgraf to allow Condon and Waits to "do whatever they needed to do to determine what resources would be needed" to produce a cost estimate for the proposed instructional film. As preliminary work began on the training-video project, Parrott assigned Daly and Pfalzgraf specific roles. Daly was to be in charge of the logistics, and Pfalzgraf was to perform the autopsy procedures to be filmed.
Condon stated at his sentencing hearing that he provided Daly with a list of "Symbolic Objects To Be Used And Their Intended Meanings" in regard to his art project. Daly, however, denies ever having seen such a list.
Chesher claims that, in the course of preparing to produce the instructional film Condon was essentially given free rein to pursue his own art project using the Morgue and the bodies housed there. Security at the Morgue during this time consisted primarily of what Parrott characterized as "an internal security system based entirely on trust."
The Morgue is located on the first floor of the Coroner's Office. Two coolers house the bodies, and County staff perform the autopsies in a suite adjacent to the coolers. During the relevant time period, the door to the autopsy suite was secured with a keypad lock that prevented entry by anyone without a proper code. The cooler itself, however, which also provided access to the autopsy suite, was unlocked. Coroner's Office staff members were also aware that the characters "*7" could be entered on the keypad by anyone as a "shortcut" code. Condon used that code to enter the autopsy suite. Morgue employees stated that they received no training on who should be permitted to enter the Morgue.
In August of 2000, Daly explained to both Pfalzgraf and Tobias that Condon would be around the Morgue taking photographs for the training-video project. Pfalzgraf, Tobias, and Utz subsequently permitted Condon, beginning on August 16, to observe autopsies that they performed. Although standard practice required outside persons observing an autopsy to sign a "view sheet," Condon did not sign in for the autopsies that he observed on August 16, or for those that he observed and photographed during later visits.
Daly prepared a short outline of a script for the proposed video after the initial August 16 visit by Condon and Waits. Several weeks later, Condon and Waits provided Parrott with an estimate of $10,000 to produce the instructional video. Parrott, according to his deposition testimony, determined that the Coroner's Office could not afford the project based on this bid. In addition, Parrott had in the meantime obtained an alternate training video at a National Association of Medical Examiners meeting that lessened...
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