Karen Waeschle is the daughter of Katherine Weins, who died after suffering a closed head injury at a nursing home in August 2006. Waeschle requested an investigation into Weins’ death, and the police sought an autopsy. The autopsy was performed by the Oakland County Medical Examiner according to standard procedures and protocols. Because Weins suffered a closed head injury, her brain was examined. As a matter of course, if a brain is to be examined during an autopsy, it must be treated in a formaldehyde-like solution for a period of 10 to 14 days. Once the examination is complete, the brain is treated as medical waste and disposed of by incineration. That occurred in this case.
Waeschle sued the Oakland County Medical Examiner and Oakland County in the federal court for the Eastern District of Michigan. She seeks declaratory, injunctive, and monetary relief because the medical examiner returned her deceased mother’s body to her for burial or cremation without informing Waeschle that the examiner had retained her mother’s brain for further examination, or that the brain would be disposed of as medical waste. Waeschle alleges that she should have been given the opportunity to dispose of the brain. In the lawsuit, Waeschle asserts that her constitutional rights have been violated, and she seeks class certification on behalf of an estimated 40,000 plaintiffs against every county in the state of Michigan. The federal district court denied the defendants’ motion for summary judgment. On appeal, the Sixth Circuit ruled that the medical examiner was entitled to qualified immunity as to the claim against him personally, and that Waeschle’s claims against the county and the medical examiner in his official capacity turned on whether Michigan recognizes an interest of the next of kin in a brain removed and retained for autopsy purposes. Because it found that the existence of such a right is not clear under Michigan law, the Sixth Circuit directed the district court to certify the following question to the Michigan Supreme Court pursuant to Michigan Court Rule 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?” The Michigan Supreme Court has granted the federal district court’s request to answer the certified question.