Case 2:07-cv-00706-PMP-GWF Document 54 Filed 09/25/08 Page 1 of 13

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA
6 ***
)
7 DENISE BOORMAN, an individual and as )
the personal representative of RICHARD )
8 LESLIE FRANCIS BOORMAN; BILLY )
CHRISTIAN BOORMAN, a minor; )
9 DEAN ALFRED BOORMAN; RITA VAN) 2:07-CV-00706-PMP-GWF
INGEN; DIANE GOODWIN; and )
10 GEMMA BARKER, ) ORDER CERTIFYING QUESTIONS
) TO THE
11 Plaintiffs, ) NEVADA SUPREME COURT
)
12 v. )
)
13 NEVADA MEMORIAL CREMATION )
SOCIETY, INC., a Nevada corporation )
14 formerly identified as NEVADA )
FUNERAL SERVICE; STEVE ALLEN; )
15 ERIC ARCENEAUX; CLARK COUNTY; )
CLARK COUNTY CORONER’S )
16 OFFICE; and MONIQUE BEVERLY, )
)
17 Defendants. )
)
18

19 Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, this Court seeks
20 guidance from and respectfully certifies to the Nevada Supreme Court the following
21 questions of law that may be determinative of matters before this Court and as to which
22 there is no clearly controlling precedent in the decisions of the Nevada Supreme Court:
23 1. What relationship must a plaintiff have to a deceased person to assert a
24 cognizable emotional distress claim related to the alleged mishandling of the deceased
25 person’s remains?
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1 2. In asserting such a claim, must the plaintiff demonstrate physical impact or

2 serious emotional distress causing physical injury or illness?
3 3. In asserting such a claim, must the plaintiff observe or have some sensory
4 perception of the act causing insult to their loved one’s remains?
5 4. Does a county coroner’s office owe a duty to the family members of a
6 deceased individual not to lose, misplace, or misappropriate the deceased person’s organs
7 such that the county coroner’s office could be liable for emotional distress claims?
8 5. If the answer to question four is yes, to what class of persons is such a duty
9 owed?
10 6. Does a county coroner’s office owe a fiduciary duty to the family members of
11 a deceased individual not to lose, misplace, or misappropriate the deceased person’s organs,
12 or to inform the family members about the whereabouts of such organs?
13 7. If the answer to question six is yes, to what class of persons is such a duty
14 owed?
15 8. Does a claim for conversion of a deceased human body or its parts exist under
16 Nevada law?
17 9. If the answer to question eight is yes, what class of persons may bring such a
18 claim?
19 10. If the answer to question eight is yes, may such a plaintiff recover emotional
20 distress damages arising out of the conversion of the human remains?
21 I. BACKGROUND
22 This is a diversity action brought by relatives of Richard Boorman (“Richard”), a
23 citizen of the United Kingdom who died on June 28, 2005, while visiting Las Vegas. (Am.
24 Compl. [Doc. #23] at 2-3, 5.) Plaintiffs are Richard’s mother and personal representative,
25 brothers, grandmother, cousin, and aunt. (Id.)
26 ///

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1 Richard’s body was transported to Defendant Clark County Nevada Coroner’s

2 Office (“Coroner”). (Id. at 6.) The Coroner performed an autopsy which required the
3 Coroner to remove Richard’s internal organs for examination. (Id.) The Coroner
4 subsequently released the body to Defendant Nevada Memorial Cremation Society, Inc.
5 (“Funeral Service”) for embalming. (Id.) When Richard’s body was returned to England, it
6 was discovered that his internal organs were missing. (Id.)
7 Plaintiffs Denise Boorman, Richard’s mother, and Billy Boorman, Richard’s
8 brother, initially brought this action on May 31, 2007, against Defendant Funeral Service.
9 (Compl. [Doc. #1].) Plaintiffs also named Doe defendants who Plaintiffs alleged “are in
10 some manner responsible for the events and happenings referred to and caused the damages
11 as alleged herein.” (Id. at 2-3.) Plaintiffs brought claims for intentional infliction of
12 emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and
13 negligence based on the misplacement of Richard’s organs. (Id. at 4-6.)
14 Plaintiffs amended their Complaint on March 18, 2008, adding Plaintiffs,
15 Defendants, and causes of action. In addition to Denise and Billy Boorman, the Amended
16 Complaint added as Plaintiffs Dean Boorman, Richard’s brother; Rita Van Ingen, Richard’s
17 grandmother; Diane Goodwin, Richard’s aunt; and Gemma Barker, Richard’s cousin. (Am.
18 Compl. at 2-3.) The Amended Complaint also substituted Doe defendants for Defendant
19 Clark County; Defendant Clark County Coroner’s Office; Steve Allen (“Allen”), a Funeral
20 Service employee; Eric Arceneaux (“Arceneaux”), a Funeral Service employee; and
21 Monique Beverley (“Beverley”), a Coroner’s Office employee. (Id. at 3-4.)
22 Finally, the Amended Complaint added new factual allegations and related
23 causes of action. The Amended Complaint alleges Defendant Coroner took or lost
24 Richard’s organs, falsely represented that it turned the organs over to Defendant Funeral
25 Service, and conspired with Funeral Service to conceal what happened to Richard’s organs.
26 (Id. at 6-9.) Plaintiffs contend Coroner employee Beverley initially marked a release form

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1 to indicate that the organs were not with the body. (Id. at 8.) Plaintiffs allege Beverley
2 altered the form by crossing out that indication and marking on the release form that the
3 organs were in a viscera bag and were released with the body to Funeral Service. (Id. at
4 8-9.) Plaintiffs also contend Funeral Service employees Allen and Arcineaux placed a sheet
5 inside Richard’s body to conceal the fact that his organs were missing. (Id. at 9.) Based on
6 these allegations, Plaintiffs brought the original IIED, NIED, and negligence claims, and
7 added claims for fraudulent misrepresentation, breach of fiduciary duty, breach of contract,
8 conversion, conspiracy to intentionally inflict emotional distress, conspiracy to make
9 fraudulent misrepresentations, conspiracy to breach fiduciary duties, and conspiracy to
10 commit conversion. (Id. at 11-18.)
11 Defendants Clark County, the Coroner, and Beverley moved to dismiss or in the
12 alternative for summary judgment. Among other things, Defendants argued Plaintiffs other
13 than Richard’s mother lacked standing to pursue claims related to the handling of Richard’s
14 body because his mother is the only person with legal rights to the body. Defendants also
15 moved to dismiss several claims for failure to state a claim. Defendants argued Plaintiffs
16 failed to allege their emotional distress manifested in physical injury or illness to support a
17 NIED claim. Defendants also asserted Plaintiffs failed to allege what duty Defendants
18 owed and how they breached that duty to support a breach of fiduciary duty claim. Finally,
19 Defendants argued Plaintiffs cannot state a claim for conversion because a dead body or its
20 parts cannot be converted.
21 Plaintiffs responded by arguing the Court should follow a California Supreme
22 Court case which permitted family members beyond those with a statutory right to control
23 disposition of the body to assert emotional distress claims for the mishandling of a body.
24 Additionally, Plaintiffs argued this type of claim does not have a physical impact
25 requirement. Plaintiffs also contended it is an open question whether Nevada recognizes a
26 cause of action for conversion of a body. Plaintiffs further asserted a custodian of a body

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1 and its organs owes a fiduciary duty to family members to be truthful about what happened
2 to the body and its organs.
3 This Court issued an Order this date addressing these and other matters raised by
4 Defendants’ motion to dismiss. In evaluating the parties’ arguments related to Plaintiffs’
5 claims for emotional distress, conversion, and breach of fiduciary duty related to the
6 mishandling of Richard’s body, this Court concluded that no controlling Nevada authority
7 existed and the Nevada Supreme Court ought to determine these issues of first impression
8 under Nevada law.
9 As also set forth in the Order filed concurrently herewith, general Nevada tort
10 law permits a person to bring a cause of action for NIED for harm to a third person where
11 he is a bystander who suffers serious emotional distress resulting in physical symptoms
12 “caused by apprehending the death or serious injury of a loved one due to the negligence of
13 the defendant.” Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993) (quotation
14 omitted). Thus, in a typical “bystander” NIED case, the plaintiff must show he “(1) was
15 located near the scene; (2) was emotionally injured by the contemporaneous sensory
16 observance of the accident; and (3) was closely related to the victim.” Grotts v. Zahner,
17 989 P.2d 415, 416 (Nev. 1999). The bystander must have suffered either a physical impact
18 or must present proof of serious emotional distress causing physical injury or illness.
19 Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000).
20 Nevada has limited who may bring a bystander NIED claim. As a matter of law,
21 a person who does not share a family relationship with the injured party may not bring a
22 bystander NIED claim. Grotts, 989 P.2d at 416. A family relationship means relation by
23 blood or marriage. Id. “When the family relationship between the victim and bystander is
24 beyond the immediate family, . . . the fact finder should assess the nature and quality of the
25 relationship and, therefrom, determine as a factual matter whether the relationship is close
26 enough to confer standing.” Id. (footnote omitted). Immediate family means the first

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1 degree of consanguinity. Id. at 416 n.1.

2 However, Nevada has not addressed whether relatives of a deceased person may
3 assert tort claims based on mishandling of the deceased person’s remains. Nevada law
4 designates an order of priority for who may order the burial of human remains. Nev. Rev.
5 Stat. § 451.024(1) (listing in order a person with written authority through legal document
6 or affidavit; spouse; adult child; parent; adult sibling; grandparent; guardian; and a person
7 who held the decedent’s primary domicile in joint tenancy at the time of death). Under that
8 section, Richard’s mother would be the person with authority to order the burial of his
9 remains. The statute is silent as to whether causes of action related to proper burial or
10 respectful treatment of the remains are restricted only to the person who has authority to
11 order the burial.
12 Other courts have addressed the issue of who may assert emotional distress
13 claims related to the mistreatment of a loved one’s remains. Some courts retain the
14 traditional requirements of a NIED claim, and require the party asserting the claim to have
15 apprehended the mistreatment to their loved one’s remains or to be in the “zone of danger.”
16 See, e.g., Rekosh v. Parks, 735 N.E.2d 765, 771 (Ill. App. Ct. 2000) (cremating father’s
17 remains without proper authority); Jaynes v. Strong-Thorne Mortuary, Inc., 954 P.2d 45, 50
18 (N.M. 1997) (mother’s grave disturbed); Reid v. Pierce County, 961 P.2d 333, 338 (Wash.
19 1998) (autopsy photos appropriated and displayed). Other courts suggest this essentially
20 would give immunity to funeral services and crematories because such misconduct almost
21 always would occur outside the family’s presence. See Christensen v. Superior Court, 820
22 P.2d 181, 190-91 (Cal. 1991). Further, these courts contend such claims are not bystander
23 claims at all, but arise out of duties to handle the corpse properly running directly from the
24 person handling the remains to the family members. See id. at 193-94 (stating that upon
25 agreeing to provide services, special relationship arose between mortuary and family
26 members giving rise to a duty to avoid harm to the family); Quesada v. Oak Hill

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1 Improvement Co., 213 Cal. App. 3d 596, 604 n.3 (Ct. App. 1989) (“This is not an instance
2 of recovery being based solely on infliction of emotional distress, but rather the
3 respondents’ duties toward the close relatives of the deceased to handle the corpse
4 properly.”); Strachan v. John F. Kennedy Mem. Hosp., 538 A.2d 346, 352 (N.J. 1988)
5 (noting parents’ distress was not caused by harm to their legally dead child but arose from a
6 breach of duty owed directly to the parents). Consequently, some courts have done away
7 with the requirement that the family member be present or observe the mistreatment to their
8 loved one’s remains. See Christensen, 820 P.2d at 190-91; Contreraz v.
9 Michelotti-Sawyers, 896 P.2d 1118, 1122 (Mont. 1995).
10 However, courts that have eliminated the requirement that the plaintiff observe
11 the injury to their loved one have limited who may recover on such a claim. Some courts
12 restrict recovery to the person statutorily entitled to control disposition of the remains or the
13 person who contracted for the funeral services. See Morton v. Maricopa County By &
14 Through Maricopa County Bd. of Sup’rs, 865 P.2d 808, 812 (Ariz. Ct. App. 1993) (holding
15 siblings could not pursue interference with dead body claim because parent had statutory
16 duty to bury remains); Brown v. Matthews Mortuary, Inc., 801 P.2d 37, 42-44 (Idaho 1990)
17 (holding that absent physical manifestation of emotional distress, only spouse or next
18 surviving kin could pursue claim that funeral home sent the plaintiffs the wrong cremated
19 remains); Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 159-60 (Tenn.
20 Ct. App. 2007) (limiting recovery to party with statutory right to control disposition of
21 remains);1 Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 443 (W. Va.
22 1985) (limiting cause of action to party with right to possess the body).
23 ///
24
1
25 Crawford left open the possibility that family members who did not have the statutory right
to dispose of the body could assert a NIED claim if the offending act took place in their presence. 253
26 S.W.3d at 160.

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1 Other courts find this limitation artificial. As stated in Christensen:

2 It is apparent that the identity of the individual who actually contracts

for mortuary or crematory services or holds the statutory right to
3 dispose of the remains of a decedent is incidental, and is not a reliable
indicator of the family members who may suffer the greatest emotional
4 distress if the decedent’s remains are mishandled. One of several
children of the decedent may arrange for the services on behalf of all
5 siblings, as well as a surviving spouse or parent of the decedent. If so,
the crematory or mortuary assumes a duty to all of these family
6 members. There is no reason to assume that the person who makes the
arrangements is any more susceptible to emotional distress if the
7 services are not competently performed than are the other family
members. Indeed, in light of the emotional impact of the death of a
8 close family member of the bereaved, it may be the relative least
affected who is chosen by the family to represent them in arranging for
9 funeral and related services.

10 820 P.2d at 191. However, Christensen limited recovery against a funeral home and

11 crematory to “close relatives who were aware both of the death of a loved one and the

12 nature of the funeral-related services that were to be performed on their behalf.” Id. at 200;

13 see also Quesada, 213 Cal. App. 3d at 610 (limiting recovery to “relatives residing in the

14 same household, or parents, siblings, children, and grandparents of the victim” (quotation

15 omitted)); Guth v. Freeland, 28 P.3d 982, 990 (Haw. 2001) (adopting Christensen standard);

16 Contreraz, 896 P.2d at 1122-23 (close family members for whom funeral services were

17 intended); Carney v. Knollwood Cemetery Ass’n, 514 N.E.2d 430, 436 (Ohio Ct. App.

18 1986) (declining to define outer limits of who may bring a claim for disturbance of remains

19 but concluding blood descendants could assert claim).

20 In addition to these issues, courts are split on whether a claim involving

21 mishandling of a dead body requires the plaintiff to establish physical impact or physical

22 manifestation of emotional distress. Some courts retain the traditional requirement. See

23 Guth, 28 P.3d at 988-89 n.6 (gathering cases). Others conclude that in the special case of

24 the mishandling of human remains, no physical manifestation of emotional distress is

25 necessary. See id. at 988-89 (gathering cases). These courts often rely on the reasoning set

26 forth in Prosser and Keeton on The Law of Torts (1984), which states:

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1 [A] group of cases [eliminating the physical impact requirement] has

involved the negligent mishandling of corpses. Here the traditional
2 rule has denied recovery for mere negligence, without circumstances of
aggravation. There are by now, however, a series of cases allowing
3 recovery for negligent embalming, negligent shipment, running over
the body, and the like, without such circumstances of aggravation.
4 What all of these cases appear to have in common is an especial
likelihood of genuine and serious mental distress, arising from the
5 special circumstances, which serves as a guarantee that the claim is not
spurious. Where the guarantee can be found, and the mental distress is
6 undoubtedly real and serious, there may be no good reason to deny
recovery.
7

8 Brown, 801 P.2d at 43 (quoting Prosser & Keeton on the Law of Torts § 54, at 362 (1984)

9 (footnotes and citations omitted)). Still other courts relax the physical impact requirement

10 only if the defendant’s conduct was willful or malicious. See Shults v. United States, 995

11 F. Supp. 1270, 1275 (D. Kan. 1998); Perry v. Saint Francis Hosp. & Med. Ctr., Inc., 865 F.

12 Supp. 724, 729 (D. Kan. 1994).

13 Most of these cases arise in the context of a funeral home, crematory, or

14 embalming service with whom the family members have contracted to perform services.

15 These courts have discussed the special relationship that arises between a party providing

16 mortuary services and the family. “Once a mortuary . . . undertakes to accept the care,

17 custody and control of the remains, a duty of care must be found running to the members of

18 decedent’s bereaved family.” Christensen, 820 P.2d at 191 (quotation omitted). In

19 “undertaking to provide mortuary services, the defendant had created a relationship between

20 itself and the family of the decedent by virtue of which an affirmative duty arose to avoid

21 harm to the family members.” Id. At least one court has found a similar duty for a county

22 coroner’s office. See Quesada, 213 Cal. App. 3d at 599-600, 603-05 (holding sister and

23 niece stated a NIED claim against county and funeral home where county misidentified

24 remains before transporting to funeral home, and both county and funeral home refused to

25 consider family’s protestations that body being buried was not their relative); see also Reid,

26 961 P.2d at 337-38 (stating county employees who appropriated and displayed autopsy

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1 photos to others without family members’ permission engaged in outrageous conduct but

2 held family members could not state a claim for NIED because they were not present when

3 employees displayed photos).

4 However, the United States Court of Appeals for the Ninth Circuit has ruled that

5 under California law, the United States military owed no duty of care in handling a

6 decedent’s remains during an investigation into the cause of his death. Sabow v. United

7 States, 93 F.3d 1445, 1458 (9th Cir. 1996). The Ninth Circuit specifically distinguished

8 Christensen, noting that “the handling of an individual’s remains during an investigation

9 into his death [is] different from mortuary services,” and “the U.S. Navy was under no

10 contractual obligation to treat decedent’s remains in a certain manner during the

11 investigation.” Id.

12 California currently has three cases pending before the California Supreme Court

13 addressing the issue of what duty an entity like the coroner’s office owes to family members

14 with respect to human remains. In Conroy v. Regents of University of California, the lower

15 court found a university conducting an anatomical gift program owed no duty to the

16 relatives regarding handling of the body. 59 Cal. Rptr. 3d 661 (Ct. App.), review granted

17 by 169 P.3d 94 (Cal. 2007). In Perryman v. County of Los Angeles, the lower court found

18 the coroner’s office owed no duty to family members regarding handling of the remains. 63

19 Cal. Rptr. 3d 732 (Ct. App.), review granted by 171 P.3d 2 (Cal. 2007). And in Vasquez v.

20 County of Los Angeles, the lower court ruled the county coroner’s office owed no duty to

21 family members to preserve the body from decay. No. B192189, 2007 WL 2773847 (Cal.

22 Ct. App. 2007) (unpublished). The California Supreme Court has not issued a decision in

23 these cases as of this date.

24 Nevada has not addressed any of these issues in the context of the mishandling of

25 human remains, and this case therefore involves numerous unresolved issues of Nevada

26 state law. For example, Nevada has not addressed whether such claims would be limited

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1 only to the person statutorily entitled to the remains, to the person who contracted for the

2 funeral services, to any family member who is aware of the death and for whom the funeral

3 services are intended, or to some other class of persons. Nevada has not addressed whether

4 it would require any such family member to observe the insult to their loved one’s remains.

5 Nevada also has not addressed whether such emotional distress claims must be

6 supported by a physical impact or physical manifestation of the emotional distress. And

7 Nevada has not addressed whether such duties also run to a governmental unit such as the

8 county coroner, as opposed to a funeral service who contracts to perform such services on

9 the family’s behalf.

10 In addition to these issues related to emotional distress claims, Nevada has not

11 addressed whether a plaintiff may pursue a claim for breach of fiduciary duty where a

12 coroner’s office mishandles a body. Nor has Nevada determined whether a cause of action

13 will lie for conversion of human remains.

14 Nevada should have the first opportunity to address the important questions

15 raised by this case, including Nevada’s policy regarding treatment of human remains, the

16 extent of liability in relation to any such claim recognized, and the application of these

17 principles to a government entity like a county coroner’s office. The Court therefore

18 certifies the above questions to the Nevada Supreme Court. See Amaker v. King County,

19 --- F.3d ----, No. 07-35241, 2008 WL 3904694 (9th Cir. Aug. 26, 2008) (certifying to the

20 Washington Supreme Court questions regarding whether only those statutorily identified as

21 next of kin have standing to bring a tortious interference with a corpse claim; whether the

22 decedent’s sister had standing to bring such a claim; and whether Washington’s anatomical

23 gift statute creates an implied right of action).

24 II. NAMES OF THE PARTIES

25 Plaintiffs Denise Boorman, an individual and as the personal representative of

26 Richard Leslie Francis Boorman; Billy Christian Boorman, a minor; Dean Alfred Boorman;

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1 Rita Van Ingen; Diane Goodwin; and Gemma Barker.

2 Defendants Nevada Memorial Cremation Society, Inc., a Nevada corporation

3 formerly identified as Nevada Funeral Service; Steve Allen; Eric Arceneaux; Clark County;

4 Clark County Coroner’s Office; and Monique Beverley.

5 III. THE NAMES AND ADDRESSES OF COUNSEL FOR THE PARTIES2

6 John S. Rogers
1321 South Maryland Parkway
7 Las Vegas, Nevada 89104

8 Counsel for Plaintiffs

9 Jonathan C. Capp
Capp & Marsh
10 4317 Silver Spring Way
Oceanside, California 92057
11
Counsel for Plaintiffs
12
Robert W. Freeman, Jr.
13 1060 Wigwam Parkway
Henderson, Nevada 89074
14
Counsel for Defendants Nevada Memorial Cremation Society, Inc. and Steve
15 Allen

16 Laura Rehfeldt
Clark County District Attorney’s Office
17 500 S. Grand Central Parkway, 5th Floor
P.O. Box 552215
18 Las Vegas, Nevada 89155-2215

19 Counsel for Defendants Clark County, Clark County Coroner’s Office, and
Monique Beverley
20

21 IV. ANY OTHER MATTERS THE CERTIFYING COURT DEEMS RELEVANT

TO A DETERMINATION OF THE QUESTIONS CERTIFIED
22
The Court defers to the Nevada Supreme Court to decide whether it requires any
23
other information to answer the certified questions. The Court does not intend its framing
24

25
2
Defendant Eric Arceneaux has not been served as of this date and no attorney has appeared
26 on his behalf in this action.

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1 of the questions to limit the Nevada Supreme Court’s consideration of the issues.

2 V. CONCLUSION

3 Having complied with Nevada Rule of Appellate Procedure 5(c)’s provisions, the

4 Court hereby directs the Clerk of the Court to forward this Order and the Order on

5 Defendants’ motion to dismiss also filed this date to the Supreme Court of the State of

6 Nevada, 201 South Carson Street, Carson City, Nevada 89701 under official seal.

8 DATED: September 25, 2008.

10 _______________________________
PHILIP M. PRO
11 United States District Judge

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