in Re Certified Question - Waeschle v. Dragovic

PER CURIAM.

The United States District Court for the Eastern District of Michigan certified the following question to this Court pursuant to MCR 7.305(B):

Assuming that a decedent’s brain has been removed by a medical examiner 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?^[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 curiae, 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 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.

At all times relevant to the underlying federal district court case, this issue was governed by MCL 52.205(5).³ This statute provided:

The county medical examiner shall, after any required examination or autopsy, promptly deliver or return the body to relatives ... 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 provided next of kin no clear right to the return⁴ of a brain lawfully removed and retained for forensic examination after the body was returned 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 MCL 52.205 was enacted in 1953 and that medical examiners promulgated rules to permit this practice under MCL 52.201c.⁵ Finally, no Michigan caselaw gives next of kin a possessory right to a decedent’s brain following a lawful forensic examination.

Kelly, C.J., and Cavanagh, Corrigan, Markman, and HATHAWAY, JJ., concurred.

[1] 1 See Waeschle v Dragovic, 576 F3d 539, 551 (CA 6, 2009).

2 In re Certified Question (Waeschle v Oakland Co Med Examiner), 485 Mich 1116 (2010).

3 MCL 52.205 was originally enacted in 1953 by Public Act 181. A relative’s statutory “right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body” under Michigan’s Estates and Protected Individuals Code is expressly “[slubject to 1953 PA 181, MCL 52.201 to 52.216 ....” MCL 700.3206(1). In response to this case, the Legislature amended MCL 52.205, effective July 1, 2010. 2010 PA 108. MCL 52.205(6) now specifically addresses medical examiners’ duties to next of kin under the circumstances presented here.

4 Plaintiff here did not request return of the brain. We express no opinion concerning whether, before the 2010 amendment of MCL 52.205, a medical examiner would have had a duty to return a brain in response to a relative’s timely request if the medical examiner had not destroyed the brain and had no further need to examine it. MCL 52.205(6) now expressly delineates a medical examiner’s duties under such circumstances.

5 MCL 52.201c was enacted by 1969 PA 92, effective July 24, 1969.