In rе CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN (WAESCHLE v OAKLAND COUNTY MEDICAL EXAMINER)
Docket No. 140263
Michigan Supreme Court
Decided October 29, 2010
488 Mich. 1
Argued October 7, 2010 (Calendar No. 8).
Docket No. 140263. Argued October 7, 2010 (Calendar No. 8). Decided October 29, 2010.
Karen Waeschle, individually and on behalf of others similarly situated, brought an action in the United States District Court for the Eastern District of Michigan against, among others, the Oakland County Medical Examiner, who had retained the brain of Waeschle‘s deceased mother after completing her autopsy and returning the rest of her body to Waеschle. The district court denied in part defendants’ motion for summary disposition and their motion to certify the underlying legal question to the Michigan Supreme Court on the ground that Waeschle had a clearly established federal constitutional property right to the decedent‘s brain. The United States Court of Appeals for the Sixth Circuit reversed these judgments in Waeschle v Dragovic, 576 F3d 539 (CA 6, 2009), and remanded the case to the district court with instructions to certify the following question to the Michigan Supreme Court:
Assuming that a decedent‘s brain has been removed by a medical exаminer in order to conduct a lawful investigation into the decedent‘s cause of death, do the decedent‘s next-of-kin have a right under Michigan law to possess the brain in order to properly bury or cremate the same after the brain is no longer needed for forensic examination?
The Supreme Court granted the request to answer the certified question pursuant to
In an opinion per curiаm signed by Chief Justice KELLY and Justices CAVANAGH, CORRIGAN, MARKMAN, and HATHAWAY, the Supreme Court held:
Assuming that a decedent‘s brain was removed by a medical examiner to conduсt a lawful investigation into the decedent‘s cause of death, the decedent‘s next of kin did not have a right under Michigan law to possess the brain after it was no longer needed for forensic examination. The statutory provision in effect at the relevant time,
Certified question answered in the negative.
Justice YOUNG, dissenting, would decline to answer this certified question in light of its diminished legal significance after the recent amendment of the relevant statute.
Justice DAVIS, dissenting, would decline to answer the certified question because he was not persuaded that the Court should answer this certified question.
MEDICAL EXAMINERS - AUTOPSIES - RETURN OF BODY PARTS.
Under Michigan common law and statutory law before
Dworken & Bernstein Co., L.P.A. (by Erik L. Walter and Patrick J. Perotti), and John H. Metz for plaintiffs.
Giarmarco, Mullins & Horton, P.C. (by William H. Horton and Elizabeth A. Favaro), and Keith J. Lerminiaux for defendants.
Amici Curiae:
Steven M. Jentzen, P.C. (by Steven M. Jentzen), for the Michigan Association of Medical Examiners, the National Assoсiation of Medical Examiners, Wayne County, and the Michigan Association of Counties.
Daniel A. Ophoff, Corporate Counsel, for Kent County.
Kerr, Russell and Weber, PLC (by Joanne Geha Swanson and Daniel J. Schulte), for the Michigan State Medical Society.
Assuming that a decedent‘s brain has been removed by a medical examiner in order tо conduct a lawful investigation into the decedent‘s cause of death, do the decedent‘s next-of-kin have a right under Michigan law to possess the brain in order to properly bury or cremate the same after the brain is no longer needed for forensic examination?1
We granted the request to answer the question.2 Having heard the parties’ oral arguments, and having reviewed the briefs filed by the parties and other interested amici curiaе, we answer under the law applicable to this case and the facts as presented: No, assuming that a decedent‘s brain was removed by a medical examiner to conduct a lawful investigation into the decedent‘s cause of death, the decedent‘s nеxt of kin does not have a right under Michigan law to possess the brain in order to properly bury or cremate the same after the brаin is no longer needed for forensic examination.
At all times relevant to the underlying federal district court case, this issue was governed by
The county medical examiner shall, after any required examination or autopsy, promptly deliver or return the
body to relativеs . . . except that the medical examiner may retain, as long as may be necessary, any portion of the body believed by the medical examiner to be necessary for the detection of any crime.
Because the statute required only prompt return of “the body“—and because it permitted the medical examiner to retain portions of the body in order to detect crime—this law рrovided next of kin no clear right to the return4 of a brain lawfully removed and retained for forensic examination after the body was rеturned to the decedent‘s family for burial or cremation. Further, plaintiff has not disputed defendants’ assertions that there was an historical practice of retaining, examining, and later disposing of an examined brain when
KELLY, C.J., and CAVANAGH, CORRIGAN, MARKMAN, and HATHAWAY, JJ., concurred.
YOUNG, J. (dissenting). I continue to adhere to my stated position in In re Certified Question (Wayne Co v Philip Morris Inc), 622 NW2d 518 (Mich, 2001), that this Court lacks the authority under state law to answer certified questiоns. However, my position has failed to
In light of the recent amendment of the relevant statute by
DAVIS, J. (dissenting). I would dеcline to answer the certified question because I am not persuaded that the Court should answer this certified question.