United States v. 2008-08-25 | 07-35241 | AMAKER V. KING COUNTY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROBINETTE AMAKER, No. 07-35241
Plaintiff-Appellant, D.C. No.
v. CV-05-01470-MJP
Western District ofKING COUNTY, a municipal Washington,corporation; STANLEY MEDICAL SeattleRESEARCH INSTITUTE, a foreign 
corporation; E. FULLER TORREY, ORDER
Defendants-Appellees. CERTIFYING
QUESTIONS TO
THE
WASHINGTON
SUPREME COURT

Filed August 26, 2008
Before: Richard R. Clifton and N. Randy Smith,
Circuit Judges, and Brian E. Sandoval,* District Judge.
COUNSEL
Stephen L. Bulzomi (argued), Jeremy A. Johnston, Messina
Bulzomi Christensen, Tacoma, Washington, for the appellant.
Grant S. Degginger (argued), June K. Campbell, Ryan P.
McBride, Lane Powell PC, Seattle, Washington, for the appel-
lees.
*The Honorable Brian E. Sandoval, United States District Judge for the
District of Nevada, sitting by designation.
11709

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ORDER
In this case arising out of diversity jurisdiction, we are
asked to decide whether Robinette Amaker, the surviving sis-
ter of Bradley Gierlich, may bring suit against defendants
King County, Stanley Medical Research Institute (“SMRI”),
and E. Fuller Torrey, after the King County Medical Examin-
ers 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 individ-
ual 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, 89 P. 172 (Wash. 1907); Gadbury v.
Bleitz, 233 P. 299 (Wash. 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 (repealed by Wash.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 ques-
tions we pose are dispositive of the issues before us. Specifi-
cally, 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.
1We refer to Bradley and Robert Gierlich by their first names because
they share the same last name.
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I
Before addressing the questions certified to the Washington
Supreme Court, we first summarize the material facts and pro-
cedural history. Bradley Gierlich died of an apparent drug
overdose on October 13, 1998, in Seattle, Washington. [ER
228.] He was survived by his father, Robert Gierlich, his sis-
ter, 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. [ER 101.] Dr. Menchel contends that he
received assurance from Wright that Robert would consent to
the organ donation.[ Id. ] 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 con-
sent to organ donation. [ER 268-69.] In any event, it is undis-
puted 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
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shortly after Bradley’s death in order to attend to the funeral
arrangements. [ER 135.] 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. [ER 143.] 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. [Id.] 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 con-
senting to the donation. [ER 144.] 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. [ER 144.] When
her brother’s sample showed that he too was afflicted with
CADASIL before his death, Amaker began taking preventa-
tive medication in order to ward off the effects of the disease.
[ER 145.]
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 Dis-
trict of Washington. Prior to summary judgment, plaintiff
conceded dismissal of all claims except the claims for com-
mon law interference with a corpse, civil conspiracy, invasion
of privacy, and violations of WAGA.
The district court granted summary judgment to the defen-
dants on Amaker’s invasion of privacy claim and the civil
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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 har-
vest organs without donor consent. Amaker v. King County,
479 F.Supp.2d 1151, 1157-59 (W.D. Wash. 2007). In a subse-
quent 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 pri-
vacy and civil conspiracy claims in a memorandum disposi-
tion 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 dece-
dent’s sister, is among the class of individuals that has stand-
ing 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 Washing-
ton 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
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who may bring a claim for tortious interference with a corpse.
The traditional approach to standing, most commonly associ-
ated with the Restatement of Torts, identifies the tort as a
claim deriving from a “quasi-property” right. See Carney v.
Knollwood Cemetery Ass’n, 514 N.E.2d 430, 434 (Ohio Ct.
App. 1986). Under this theory, the decendent’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 pre-
vents 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 (Sec-
ond) 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, 213 N.E.2d 870, 872 (Mass. 1966) (“The absence
of a surviving spouse and of contrary directions by the dece-
dent 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 deriva-
tive of the exercised right to possess, preserve, and bury a
corpse” and because “each plaintiff falls within the class of
‘next of kin’ articulated by the statutes relating to disposition
and burial of a corpse” they may each bring a claim for inter-
ference with a corpse.); Whaley v. County of Saginaw, 941
F.Supp. 1483, 1491 (E.D.Mich. 1996) (concluding that under
Michigan law, only those that are the “next of kin,” as defined
by the Michigan Supreme Court, has standing to sue for muti-
lation of a body); cf. Allinger v. Kell, 302 N.W.2d 576, 579
(Mich. Ct. App. 1981), rev’d on other grounds, 309 N.W.2d
547 (Mich. 1981); Wages v. Amisub of Georgia, 508 S.E.2d
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783, 785 (Ga. App. 1998) (concluding that the theory of inter-
ference with a corpse was based upon quasi-contract right and
that without a contract for funeral services, plaintiffs could
not state a claim for tortious interference with a corpse).
Courts in other jurisdictions have moved away from this
approach and recognized that other close family members
generally can bring suits for interference with a corpse under
a subspecies of the tort of infliction of emotional distress.
Carney, 514 N.E.2d at 435. Under this theory the claim is not
based on “a property right in a dead body but in the personal
right of the family of the deceased to bury the body.” Id. (cita-
tions omitted). These jurisdictions now conclude that any
“close” or “immediate” member of the decedent’s family may
bring suit for tortious interference with a corpse. See, e.g., id.
(rejecting “the theory that a surviving custodian has quasi-
property rights in the body of the deceased, and acknowledg-
[ing] the cause of action for mishandling of a dead body” but
declining to define precisely which class of family members
has standing); Christensen v. Sup. Ct. of Los Angeles, 820
P.2d 181, 183 (Cal. 1992) (concluding that the class of plain-
tiffs with standing to sue went beyond those “who have the
statutory right to control disposition of the remains and those
who contract for disposition,” to include those “close family
members who were aware that the funeral . . . services were
being performed”); Contreraz v. Michelotti-Sawyers, 896
P.2d 1118, 1122 (Mont. 1995) (holding that “close relatives,”
including children and grandchildren, have standing to sue).
Identifying the correct rule in Washington matters here
because at the time of Bradley’s death, his next of kin was his
father. See RCW § 68.50.160(3). It was Robert, and not
Amaker, that had the right and duty to dispose of Bradley’s
remains. If only the “next of kin” may bring a claim for tor-
tious interference with a corpse in Washington, Amaker does
not have standing. If, however, Washington recognizes a
broader class of claimants, including other close relatives,
then Amaker likely has standing.
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Neither the Washington courts, nor the state legislature,
have identified which theory of liability applies to these
claims in Washington. At best, we are left to divine the Wash-
ington standing rule based upon some cryptic wording in two
cases from the early twentieth century. In Wright v. Beards-
ley, the Washington Supreme Court noted that “[t]he persons
who are the lawful custodians of a deceased body may main-
tain an action for its desecration.” 89 P. 172, 173 (1907). Sim-
ilarly, in Gadbury v. Bleitz, the Supreme Court noted that the
right to maintain an action for interference with a corpse
could vest in the mother of the decedent, because she was one
responsible for disposition of the body. 233 P. 299, 300
(1925); see also Herzl Congregation v. Robinson, 253 P. 654,
473 (Wash. 1927) (adopting the proposition that “the right to
bury a corpse . . . belongs exclusively to the next of kin”). In
both cases the parent or parents of the decedent, as the dece-
dent’s next of kin, were permitted to bring suit for tortious
interference with a corpse.
Although the seminal Washington cases establishing the
common law tort of interference with a corpse allude to a
more limited standing class, more recent Washington cases
have suggested contradictory standards. In Jacobs v. Calvary
Cemetery & Mausoleum, 765 P.2d 334, 335 (Wash. Ct. App.
1989), a cemetery negligently interred the remains of the
Jacobs’ five-year-old daughter. As a result, vandals were able
to remove the body and leave it in a remote part of the ceme-
tery. Id. The defendants contended that the parents were not
entitled to sue because they were merely “bystanders.” Rely-
ing upon Wright and Gadbury, the court noted that the parents
could bring suit because “damage awards in this field have
never been based on bystander liability, but on the violation
of a duty owed to the contracting plaintiff.” Id. at 335 n.1.
Jacobs suggests that Washington courts may continue to rec-
ognize a limited approach to standing like that established in
the Restatement.
On the other hand, the Washington Supreme Court has
recently suggested that tortious interference with a corpse
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claims may be brought by family members other than those
that have the right to dispose of the decedent’s remains. In
Reid v. Pierce County, 961 P.2d 333 (Wash. 1998) (en banc),
the court alluded to the fact that the plaintiffs, including the
decedent’s surviving niece, could bring claims for tortious
interference with a corpse. Although the Washington Supreme
Court did not directly address the issue, the decision sug-
gested that it might be willing to recognize a broader standing
class. Id. at 339-40.
Although there is some language in Washington state court
decisions suggesting that Washington recognizes the Restate-
ment approach to standing, we think that the more prudent
course is to seek guidance from the Washington Supreme
Court itself. Therefore, we are persuaded that certification is
the correct course of action here. No Washington state court
has explicitly defined the class of plaintiffs with standing to
bring this particular claim. When we are left without a defini-
tive rule statement on a question of state law, like we are here,
“[w]e are not making the most of our opportunity to cooperate
as judicial neighbors, and we are not in tune with the require-
ments of judicial federalism, when we declare state law . . .
without first asking the state supreme court for clarification.”
Johnson v. Hawe, 388 F.3d 676, 689 (9th Cir. 2004) (Gould,
J. dissenting). In the end we conclude that it is for the state
to determine who should be able to pursue this claim and
what limits to impose on liability.
B
The second issue that we address is whether the WAGA
creates an implied private right of action. Amaker maintains
that the defendants violated the Act when they failed to obtain
written consent from her prior to providing Bradley’s organs
to SMRI. RCW § 68.50.550(3) (repealed by Wash. Laws
2008, ch. 139, §31).2 Amaker claims that the WAGA creates
2The Washington Anatomical Gift Act, RCW § 68.50.520 et seq., has
been repealed and revised effective June 12, 2008. The Revised Anatomi-
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an implied private right of action which allows her to recover
for the violation. We also certify this question to the Wash-
ington Supreme Court.
No Washington court has yet confronted the issue of
whether the WAGA creates a private right of action. The only
reported Washington case to consider the WAGA is a court
of appeals case that construed the good faith immunity provi-
sion of the Act. See Sattler v. Nw Tissue Ctr., 42 P.3d 440,
444 (Wash. Ct. App. 2002). The Washington legislature has
authorized the courts to look to other jurisdictions in interpret-
ing Uniform statutes, including the WAGA. See RCW
§ 68.50.520 (repealed by Wash. Laws 2008, ch. 139, §31);
Sattler, 42 P.2d at 443. Unfortunately, we are unaware of any
jurisdiction that has expressly addressed the question of
whether the Uniform Anatomical Gift Act creates an implied
right of action.
We recognize that we have been willing to decide similar
questions in the past without certifying questions to the state
supreme court. For example, in Duffy v. Riveland, 98 F.3d
447, 458-59 (9th Cir. 1996), we applied Washington law and
cal Gift Act is substantially similar to the 1993 legislation applicable at the
time of the alleged violation, although the revised legislation does not
have mandatory language with respect to the consent provision. Compare
RCW § 68.51.090 (2008) (“A person authorized to make an anatomical
gift . . . may make an anatomical gift by a document of gift signed by the
person making the gift or by that person’s oral communication that is elec-
tronically recorded or is contemporaneously reduced to a record and
signed by the individual receiving the oral communication.”) with RCW
§ 68.50.550(3) (2006) (“An anatomical gift made by [an authorized family
member] must be made by (a) a document of gift signed by the person or
(b) the person’s telegraphic, recorded telephonic, or other recorded mes-
sage, or other form of communication from the person that is contempora-
neously reduced to writing and signed by the recipient of the
communication.”). In Washington, amendments to legislation are pre-
sumed to apply prospectively only. In re F.D. Processing, Inc., 832 P.2d
1303 (Wash. 1992) (en banc).
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determined that another Washington statute created a private
right of action without resorting to a certification order in that
instance. Nonetheless, we think it prudent, given the circum-
stances in this case, to seek guidance from the Washington
Supreme Court on this question.
The Washington Supreme Court may wish to consider
these two issues in conjunction. This case presents an oppor-
tunity for the state supreme court to identify which claims
may be brought in cases arising out of non-consensual organ
donation. Likewise, the court may wish to consider the inter-
play between the Anatomical Gift Act and claims for tortious
interference with a corpse. For example, under the district
court’s analysis Amaker does not have standing to bring a tor-
tious interference claim because she was not the “next of kin”
and did not have the right to dispose of Bradley’s remains.
See Amaker, 479 F.Supp.2d at 1161-62. On the other hand,
the district court found that Amaker had standing to bring a
claim under the WAGA, because Robert was “unavailable” at
the time of Bradley’s death, and therefore she was capable of
consenting to the donation. See Amaker, 479 F.Supp.2d at
1156-57. Thus, Amaker argues there is tension between the
two holdings: she was legally permitted to donate Bradley’s
organs, but she did not have the legal right to dispose of the
body. The Washington court may wish to remedy this tension,
or it may conclude that the policy rationales behind the com-
mon law claim and the WAGA compel this outcome. More
broadly, it may be that each law is aimed at remedying differ-
ent harms, it may be that both the common law claim and the
statute allow for recovery in this instance, or it may be that
neither the common law claim nor the statute allows for
recovery in this particular situation. In any event, we leave it
for the Washington Supreme Court to decide.
III
In light of the foregoing discussion, and because the answer
to these questions is “necessary to ascertain the local law of
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this state in order to dispose” of the issues on appeal, RCW
§ 2.60.020, we respectfully certify to the Washington
Supreme Court the following questions:
(1) Whether only those individuals identified as
“next of kin” as defined by RCW § 68.50.160 at the
time of the decedent’s death have standing to bring
a claim for tortious interference with a corpse?
(2) If the answer to the above question is “no,”
whether Amaker, the decedent’s sister, is within the
class of plaintiffs that may bring a claim for tortious
interference with a corpse?
(3) Whether the Washington Anatomical Gift Act,
RCW § 68.50.520 et seq., creates an implied private
right of action upon which Amaker may state a
claim?
We do not intend our framing of the questions to restrict
the Washington Supreme Court’s consideration of these
issues. The Washington Supreme Court, in its discretion, may
choose to reformulate the questions presented. Broad v. Man-
nesman Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999).
If the Washington Supreme Court accepts review of the
certified questions, we designate appellant Amaker to file the
first brief pursuant to Washington Rule of Appellate Proce-
dure 16.16 (e)(1).
The Clerk of Court is hereby ordered to transmit forthwith
to the Washington Supreme Court, under official seal of the
United States Court of Appeals for the Ninth Circuit, a copy
of this order and all briefs and excerpts of record. RCW
§ 2.60.010, 2.60.030; Wash. R. App. P. 16.16.
Further proceedings in our court on the certified questions
are stayed pending the Washington Supreme Court’s decision
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on whether it will accept review, and if so, receipt of the
answer to the certified question. The case is withdrawn from
submission until further order from this court. The panel will
resume control and jurisdiction over the certified questions
when either the Washington Supreme Court answers the certi-
fied questions or declines to answer the questions. When the
Washington Supreme Court decides whether or not to accept
the certified questions, the parties shall file a joint report
informing this court of the decision. If the Washington
Supreme Court accepts the certified question, the parties shall
file a joint status report informing this court when the Wash-
ington Supreme Court issues its answers.
It is so ORDERED.
___________________
Chief Judge Alex Kozinski
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