Monthly Law Journal Article: Civil Liability and Dead Bodies, 2014 (7) AELE Mo. L. J. 101.

      During an authorized autopsy of a 17-year-old high school student who died in an auto accident, the medical examiner removed the student's brain, placed it in formalin, and put it in the autopsy room for additional examination by a neuropathologist. The body was later buried and only then did the family learn tat the medical examiner had retained the decedent's brain when forensic science students from the decedent's high school observed it in a jar during a visit to the medical examiner's facilities. At trial, a directed verdict on liability was granted by the court and $1 million in damages was awarded, although that amount was subsequently reduced to a lower amount on appeal with the consent of the plaintiffs. The highest court in New York reversed, ruling that a medical examiner conducting a lawful autopsy in New York has no legal requirement to notify the decedent's family that tissues, organs, or other specimens have been removed and retained. Shipley v. City of New York, #96, 2015 NY Slip Op 04791, 2015 N.Y. Lexis 1391.
    An autistic Muslim man was shot and killed by a police officer after allegedly lunging at him with a knife. In a lawsuit by his family, his estate, and thee organizations, it was also claimed that the coroner took custody of his body but did not notify his family until twenty-one days later and the delay prevented his family from burying him in accordance with the religions customs of Islam. A jury awarded $1 million in excessive force damages to the estate, which was struck by the trial judge. $700,000 in state law wrongful death damages was also awarded. A federal appeals court reversed in part, finding that a California state statute disallowing awards for pre-death pain and suffering did not apply to a federal civil rights excessive force claim. The trial court erroneously erred in dismissing certain state law claims as duplicative, as under state law, an award of a multiplier of the attorneys' fees could be awarded, something not available on the federal claims. Substantive due process and intentional infliction of emotional distress claims brought by the decedent's siblings were properly rejected. A negligence claim against the coroner for failure to provide timely notice of the death was reinstated, as there was a mandatory duty under state law to make a reasonable effort to locate the decedent's family. The coroner did not, however, violate equal protection, as he did not act with intent to discriminate on the basis of religion, and he did not deprive the parents of a property right. Chaudhry v. City of Los Angeles, #11-55820, 2014 U.S. App. Lexis 9208 (9th Cir.), and 2014 U.S. App. Lexis 9226 (Unpub. 9th Cir.).
      A couple sued the county coroner and other defendants, claiming that their due process rights were violated when their son's brain was removed during an autopsy, and subsequently destroyed rather than returned. Noting that state law controls the issue of whether there are property rights in dead bodies and their parts, a federal appeals court found that there are no property rights, under Ohio law, in body parts removed by a coroner during an autopsy conducted for purposes of a criminal investigation. Judgment on the pleadings for the defendants was therefore upheld. Albrecht v. Treon, #09-3703, 617 F.3d 890 (6th Cir. 2010).
    The daughter of a decedent claimed that a county medical examiner violated her Fourteenth Amendment due process right by a failure to return her mother's brain following an autopsy. The mother had fallen at a nursing home where she lived, and died of her injuries. The autopsy was conducted at police request as part of an investigation of the daughter's suspicion that the fall was caused by neglect or abuse. After the daughter disposed of her mother's body, she found out that the brain had been incinerated as medical waste. The medical examiner was entitled to qualified immunity because any supposed constitutional right to dispose of the decedent's body was not clearly established. Any state-created property right under Michigan law to post-autopsy possession of specimens taken for purposes of a criminal investigation was not "unequivocal." State law also failed to unambiguously direct medical examiners as to how individual body parts taken for forensic examination were to be disposed of. Waeschle v. Dragovic, #08-2228, 2009 U.S. App. Lexis 16083 (6th Cir.).
     In a lawsuit by the family of a motorist shot and killed by police following a pursuit, the estate and family attempted to assert a claim against the medical examiner's office for negligent abuse of the corpse by failing to properly preserve it, preventing them from having an open casket at the funeral. Applying Pennsylvania state law, a federal trial court ruled that no such cause of action is possible, based on a Pennsylvania Supreme Court decision. Whitson v. Philadelphia, Civil Action No. 07-2832, 2008 U.S. Dist. Lexis 87443 (E.D. Pa.).
     A county coroner had no mandatory statutory duty to embalm or refrigerate the body of a murder victim or otherwise ensure that the remains continued to be intact. The family of the victim could not recover damages under either state law or federal civil rights law for the grief and anguish they allegedly suffered after observing the victim's decomposed and "unrecognizable" body after the coroner had retained it for approximately a week. The court also noted that, under federal civil rights law, the family had no constitutionally protected property right in the body. Perryman v. County of Los Angeles, No. B194373, 2007 Cal. App. Lexis 1263.
     Family members of deceased persons could pursue claims, under Ohio law, for negligent infliction of emotional distress and negligent mishandling of corpses, based on the alleged illegal releasing of crime scene, physical remains and autopsy photographs to the public. Chesher v. Neyer, No. 1:01-CV-00566, 392 F. Supp. 2d 939 (S.D. Ohio 2005). [N/R]
     347:169 UPDATE: $2 million settlement by village in case where jury awarded $3.75 million for police chief's failure to recover bodily remains of murder victim. Culberson v. Doan, No. C-1-97-965 (S.D. Ohio), reported in The National Law Journal, p. A4 (July 30, 2001).
     346:154 California jury awards $75,000 for emotional distress to family of deceased woman whose body was autopsied, without authorization, during "Scared Stiff" program for youthful drunk drivers. Garza v. County of Fresno, No. 644182-8, (Fresno Co., Calif., Super. Ct.)., reported in The National Law Journal, p. B3 (August 13, 2001).
     341:74 Jury awards $3.75 million against village for police chief's failure to recover bodily remains of murder victim after dogs alerted officers to the presence of human remains at the edge of a pond in a junkyard. Culberson v. Doan, No. C-1-965, U.S. Dist. Ct. (S.D. Ohio), reported in The National Law Journal p. A14 (March 19, 2001).
     285:141 Police officer and medical examiner had no duty under existing Tennessee state law to notify man's family of his death or the location of his dead body; no liability for alleged failure to do so Tinsley v. Dudley, 915 S.W.2d 806 (Tenn App. 1995).
     County had no duty to crime victim's family to identify victim's remains; however, parents of murder victim had cause of action against medical examiner for incineration of remains due to space needs, as they had a statutory right to receive body for interment or cremation; siblings could not recover damages for emotional distress and had no right of their own to receive remains $950,000 award reversed for new trial limited to claims of parents against medical examiner's office Morton v. Maricopa County, 865 P.2d 808 (Ariz App. 1993).
     Court overturns $200,000 jury award against state troopers for removing indentification from bodies of two youths killed in traffic accident and later misidentified; jury's use of dictionary for definition of "reasonable" was prejudicial misconduct requiring new trial Jordan v. Brantley, 589 So.2d 680 (Ala 1991).