Next-of-Kin Has No Property Right in Human Remains Including Brain Disposed of After Lawful Investigation

The defendant county medical examiner performed an autopsy to determine a woman’s cause of death pursuant to a lawful criminal investigation. The woman’s body, except for her brain, was returned to the woman’s next of kin, her daughter. The medical examiner retained the woman’s brain for further study without informing the daughter. The brain was later incinerated as medical waste. 


The daughter sued the defendant for various state law claims and violating the Due Process Clause of the Fourteenth Amendment by denying her the right to dispose of her mother's brain as she saw fit. The defendant filed a motion to dismiss the state law claims and the due process claim, or, in the alternative requested that the district court certify to the Michigan Supreme Court the issue of a next-of-kin's property interest in a decedent's organs following an autopsy. The district court dismissed the state law claims, but not the due process claim. The district court decided not to certify the question to the Michigan Supreme Court holding that under Michigan law it was clear that next-of-kin have an interest in their deceased relative's remains/body parts. The defendant appealed. A panel of the Sixth Circuit certified the question to the Michigan Supreme Court, which responded, “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 next 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 brain is no longer needed for forensic examination.” The defendant filed a motion to dismiss, which the district court granted. The plaintiff appealed. The defendant filed a motion for sanctions for bringing a frivolous appeal.


The Sixth Circuit denied the plaintiff’s appeal and denied the defendant’s motion for sanctions. The district court did not err in dismissing the due process claim because state law determines property rights and the Michigan Supreme Court in answering the certified question determined the applicable property rights in this case. Retroactivity was held to be irrelevant because answering the certified question did not alter the law, it only clarified the law. Prior cases related to the unauthorized harvesting of eyes and corneas for donation purposes, are distinguishable from this case concerning the removal of an organ for a lawful investigation.


Sanctions are warranted where the appellant's arguments essentially had no reasonable expectation of altering the district court's judgment based on law or fact. Clear circuit precedent rendered the appellant’s arguments meritless. Counsel, as officers of the court, were obligated to acknowledge that they were making a good-faith argument for a change in the law and to deal candidly with the clear circuit precedent that is contrary to appellant's position. The Sixth Circuit did not impose sanctions because at the time this appeal was filed, there was no clear requirement that counsel do so.


See: Waeschle v. Dragovic, 2012 WL 2877579 (C.A.6 (Mich.), July 16, 2012) (not designated for publication).