The opinion of the court was delivered by: District Judge Susan J. Dlott
CERTIFY A QUESTION TO THE ORDER GRANTING MOTIONS TO OHIO SUPREME COURT
This matter is before the Court on the Motion of the Cuyahoga County Coroner and the Board of Commissioners of Cuyahoga County (hereafter "Cuyahoga County") to Certify a Question of State Law to the Ohio Supreme Court (doc. 34) and the like motions of 86 other Ohio county coroners and commissioners,*fn1 Plaintiffs' brief in opposition to these motions (doc. 61), and the coroners' and commissioners' reply memoranda.*fn2 For the following reasons, the Court grants, with modification, the motions to certify a question to the Ohio Supreme Court.
This lawsuit is a putative class action against all county coroners and/or medical examiners in the State of Ohio which have removed, retained, and disposed of body parts without prior notice to next of kin, and the County Commissions and Commissioners of those counties. (Doc. 2 at 1.) Eighty-seven counties (all Ohio counties except Hamilton) are implicated in the suit.
The fundamental question is whether the relatives of a decedent have a legally cognizable interest under Ohio law, protected by the Fourteenth Amendment, in being notified by the county coroner that the coroner has removed and retained body parts of the decedent for forensic examination while returning the rest of the body to the family. Plaintiffs Mark and Diane Albrecht brought this lawsuit against the coroner of Clermont County, Ohio, as well as the Board of County Commissioners, after discovering from their son's autopsy report that the coroner's office, or others on its behalf, had removed their son's brain for forensic examination and retained it after the autopsy. (Doc. 1 ¶¶ 37-38.) The coroner's office did not notify the Albrechts that their son's brain had been retained. (Id. at ¶ 39.) The Albrechts thus buried their son without his brain and without any notice from the coroner of that fact. (Id. at ¶ 40.) They allege they have suffered legal damages as a result. (Id. at ¶ 41.)
The Albrechts filed their lawsuit on the heels of a nearly identical lawsuit brought by family members of decedents against the Hamilton County coroner. In that case, Hainey v. Parrott, Chief District Judge Beckwith granted summary judgment to the plaintiffs after concluding that they had "a cognizable constitutional property interest in their decedent's body parts which the coroner violated when it disposed of their decedents' brains without prior notice." Order Granting Mot. Summ. J., No. 1:02cv733, 2005 WL 2397704 at *6 (S.D. Ohio Sept. 28, 2005). Defendants appealed the Order to the Sixth Circuit Court of Appeals but then settled the lawsuit. As a result, the Sixth Circuit has not had an opportunity to affirm or overturn Judge Beckwith's Order.
The county coroners and commissioners in this lawsuit generally assert that Judge Beckwith "improperly expanded" Sixth Circuit precedent and "misinterpreted" Ohio law when she concluded that next of kin have a property interest in a decedent's organs. They ask this Court to depart from the course set out in Hainey and instead certify to the Supreme Court of Ohio the following question:
Whether the next of kin of a decedent, upon whom an autopsy has been performed, have a property right under Ohio law in the decedent's tissues, organs, blood or other body parts that have been removed and retained by the coroner for forensic examination and testing. (Doc 34 at 1.)
A. Standard for Certifying a Question
The decision to certify a question of state law to a state supreme court is within the district court's discretion. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). "[U]se of the certification procedure is most appropriate when the question of state law is new or state law is unsettled." Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995). Furthermore, "[n]ovel or unsettled questions of state law may be appropriate for certification where certification will save time, energy and resources, or where there are conflicting federal interpretations of an important state law question which would otherwise evade state court review." Metz v. Unizan Bank, 416 F. Supp.2d 568, 574 (N.D. Ohio 2006) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997); Geib v. Amoco Oil Co., 29 F.3d 1050, 1060 (6th Cir. 1994)).
The Ohio Supreme Court has established the appropriate standard for certifying questions, specifying that (1) the question of Ohio law must be determinative of the proceeding, and (2) there must be no controlling Ohio Supreme Court precedent on the issue. Ohio Sup. Ct R. Prac. XVIII, Sec. 1. The preliminary question, therefore, is whether Defendants' proposed question is determinative of this proceeding. The Court holds that, with modification, it is.
B. Procedural Due Process
Plaintiffs allege that they were denied due process of law when the county "took" body parts of their son. To ascertain whether Plaintiffs, in fact, have recourse for their alleged injury depends on whether they possess a right to their son's body parts that is afforded procedural due process protection. The Sixth Circuit has described the origin and nature of rights entitled to procedural due process, explaining that while the ...