The opinion of the court was delivered by: District Judge Susan J. Dlott
Pursuant to Ohio Supreme Court Rule of Practice XVIII, the Court hereby issues this certification order to be served upon all parties or their counsel of record and filed with the Ohio Supreme Court.
Mark Albrecht, et al. v. Brian Treon, M.D., et al., U.S. District Court, Southern District of Ohio, Case No. 1:06cv274.
This lawsuit is a putative class action against all county coroners and/or medical examiners in the State of Ohio that have removed, retained, and disposed of body parts without prior notice to next of kin, and the County Commissions and Commissioners of those counties. Eighty-seven counties (all Ohio counties except Hamilton) are implicated in the suit. Plaintiffs Mark and Diane Albrecht brought this lawsuit against the coroner of Clermont County, Ohio, as well as the Board of County Commissioners, after discovering from their son's autopsy report that the coroner's office, or others on its behalf, had removed their son's brain for forensic examination and retained it after the autopsy. The coroner's office did not notify the Albrechts that their son's brain had been retained. The Albrechts thus buried their son without his brain and without any notice from the coroner of that fact. They allege they have suffered legal damages as a result.
2. CIRCUMSTANCES GIVING RISE TO THE QUESTION OF LAW
Plaintiffs allege that they were denied due process of law when the county "took" parts of their son's body. Before this Court can determine whether Plaintiffs were entitled to due process, it must ascertain whether Ohio law affords them a protected right to their son's body parts that were removed and retained by the coroner for forensic testing. Howard v. Grinage, 82 F.3d 1343, 1350 (6th Cir. 1996) (explaining that "the existence of a 'protected' right must be the threshold determination" in resolving due process claims).
That Ohio law affords next of kin a protected right in the "body" of the decedent is beyond dispute.*fn1 However, this does not automatically confer to the next of kin a protected right in "body parts" of a decedentremoved and retained by the coroner for forensic examination and testing. This is highlighted by the recent enactment of Ohio Rev. Code § 313.123(B), which provides that "retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste and shall be disposed of in accordance with applicable federal and state laws." The only exception, stated in § 313.123(B)(2), is when "the coroner has reason to believe that the autopsy is contrary to the deceased person's religious beliefs," in which case "if the coroner removes any specimens from the body of the deceased person, the coroner shall return the specimens, as soon as is practicable, to the person who has the right to the disposition of the body."
Arguably, if the Ohio legislature recognized a protected right in a decedent's tissues and organs removed and retained by the coroner for forensic examination, the statute would not confine return of the specimens to a religious decedent's next of kin. Thus, it appears that the recent enactment of Ohio Rev. Code § 313.123 may limit the rights of persons in the intact remains of their loved ones. In short, this Court cannot discern whether Plaintiffs can pursue their § 1983 claim concerning the coroner's removal and retention of their son's brain for forensic purposes until it knows whether Ohio law provides the next of kin with a right to the decedent's tissues, organs, blood or other specimens removed and retained by the coroner for forensic examination and testing.
3. THE QUESTION OF LAW TO BE ANSWERED
The question of law to be answered by the Ohio Supreme Court is as follows:
Whether the next of kin of a decedent, upon whom an autopsy has been performed, have a protected right under Ohio law in the decedent's tissues, organs, blood or other body parts that have been removed and ...