Back in the 90s, the Sixth Circuit ruled that Michigan law provides next of kin with a constitutionally-protected property interest in a deceased relative's body. In two different cases, the Sixth Circuit Court of Appeals ruled that officials can't remove a decedent's corneas without the family's consent.
But what a coroner does with organs after a family member consents to removal is another story.
The Cincinnati-based appellate court ruled on Monday that, under Michigan law, a next of kin does not have a property interest in a decedent's brain that was removed and retained pursuant to a lawful investigation.
Karen Waeschle, the daughter of a decedent whose brain was retained and disposed of pursuant to a lawful criminal investigation, sued Oakland County, Mich. and Medical Examiner Ljubisa Dragovic, alleging that Dragovic had violated the Fourteenth Amendment Due Process Clause by denying her the right to dispose of her mother's brain as she saw fit.
Property interests, however, are governed by state law, and Waeschle had already lost in a property interest ruling before the Michigan Supreme Court in 2010, according to The Wall Street Journal.
Furthermore, the Sixth Circuit's own decision in Albrecht v. Treon, a nearly-identical case from 2010, was controlling precedent
So why did Waeschle continue pushing her claim to the appellate court? The defendants raised the same question, and moved for frivolous appeal sanctions.
The Sixth Circuit Court of Appeals criticized that Waeschle had pursued her appeal "in the face of clear circuit precedent that rendered her arguments meritless," and that her brief failed to acknowledge Albrecht or distinguish her own case. "Clearly, Waeschle was entitled to make a good-faith argument for a change in the law," but she was ... "obligated to acknowledge that" ... and to "deal candidly" with the obvious authority that contradicted her position.
The court let Waeschle off with a warning, but reminded her that future failures to acknowledge clear, controlling precedent may result in the imposition of sanctions.
Michigan has a vast body of law regarding how to handle bodies. Before you file a federal claim about the improper retention or disposal of body parts on behalf of a client in Michigan, confirm that there's not an on-point property interest ruling. The extra step could help you avoid sanctions.
- Karen Waeschle v. Ljubisa Dragovic, M.D. (Sixth Circuit Court of Appeals)
- Whaley v. County of Tuscola (FindLaw's CaseLaw)
- Seventh Circuit Threatens Attorney Sanctions for Frivolous Appeal (FindLaw's Seventh Circuit Blog)