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 of KING COUNTY, a municipal Washington, corporation; STANLEY MEDICAL

Seattle RESEARCH 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 appellees. 

*The Honorable Brian E. Sandoval, United States District Judge for the

District of Nevada, sitting by designation. 

11709
ORDER

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, 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 (repealed by Wash.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 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.

1We refer to Bradley and Robert Gierlich by their first names because

they share the same last name. 

11710 AMAKER v. KING COUNTY
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. [ER

228.] 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. [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 consent to organ donation. [ER 268-69.] 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

AMAKER v. KING COUNTY 11711
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 consenting 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 preventative 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 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

11712 AMAKER v. KING COUNTY
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

AMAKER v. KING COUNTY 11713
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, 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 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, 213 N.E.2d 870, 872 (Mass. 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 derivative 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 interference 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 mutilation 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

11714 AMAKER v. KING COUNTY
783, 785 (Ga. App. 1998) (concluding that the theory of interference 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. (citations 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 quasiproperty 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 plaintiffs 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 tortious 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. 

AMAKER v. KING COUNTY 11715
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 Washington standing rule based upon some cryptic wording in two

cases from the early twentieth century. In Wright v. Beardsley, the Washington Supreme Court noted that “[t]he persons

who are the lawful custodians of a deceased body may maintain an action for its desecration.” 89 P. 172, 173 (1907). Similarly, 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 decedent’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 cemetery. Id. The defendants contended that the parents were not

entitled to sue because they were merely “bystanders.” Relying 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 recognize 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

11716 AMAKER v. KING COUNTY
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 suggested 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 Restatement 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 definitive 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 requirements 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 AnatomiAMAKER v. KING COUNTY 11717
an implied private right of action which allows her to recover

for the violation. We also certify this question to the Washington 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 provision 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 interpreting 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 electronically 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 message, or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient of the

communication.”). In Washington, amendments to legislation are presumed to apply prospectively only. In re F.D. Processing, Inc., 832 P.2d

1303 (Wash. 1992) (en banc). 

11718 AMAKER v. KING COUNTY
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 circumstances 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 opportunity 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 interplay 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 tortious 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 common law claim and the WAGA compel this outcome. More

broadly, it may be that each law is aimed at remedying different 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

AMAKER v. KING COUNTY 11719
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. Mannesman 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 Procedure 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

11720 AMAKER v. KING COUNTY
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 certified 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 Washington Supreme Court issues its answers. 

It is so ORDERED.

___________________ 

Chief Judge Alex Kozinski 

AMAKER v. KING COUNTY 11721


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