                                                                          Michigan Supreme Court
                                                                                Lansing, Michigan
                                                       Chief Justice:       Justices:



Opinion                                                Marilyn Kelly        Michael F. Cavanagh
                                                                            Maura D. Corrigan
                                                                            Robert P. Young, Jr.
                                                                            Stephen J. Markman
                                                                            Diane M. Hathaway
                                                                            Alton Thomas Davis

                                                               FILED OCTOBER 29, 2010

                             STATE OF MICHIGAN

                                  SUPREME COURT


 In re CERTIFIED QUESTION FROM THE
 UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF
 MICHIGAN


 KAREN WAESCHLE, individually and on
 behalf of others similarly situated,

               Plaintiffs,

 v                                              No.              140263

 OAKLAND COUNTY MEDICAL
 EXAMINER and OAKLAND COUNTY,

               Defendants.


 BEFORE THE ENTIRE BENCH

 PER CURIAM.
       The United States District Court for the Eastern District of Michigan certified the

 following question to this Court pursuant to MCL 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.




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 “[s]ubject 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.



                                               2
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.

                                                               Marilyn Kelly
                                                               Michael F. Cavanagh
                                                               Maura D. Corrigan
                                                               Stephen J. Markman
                                                               Diane M. Hathaway




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.



                                            3
                            STATE OF MICHIGAN

                                  SUPREME COURT


In re CERTIFIED QUESTION FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
MICHIGAN


KAREN WAESCHLE, individually and on
behalf of others similarly situated,

             Plaintiffs,

v                                               No.           140263

OAKLAND COUNTY MEDICAL
EXAMINER and OAKLAND COUNTY,

             Defendants.


YOUNG, J. (dissenting).
      I continue to adhere to my stated position in In re Certified Question (Wayne Co v

Philip Morris Inc), 622 NW2d 518 (Mich, 2001), that this Court lacks the authority under

state law to answer certified questions. However, my position has failed to carry the day.

See Proposed Amendment of MCR 7.305, 462 Mich 1208 (2000). While this Court has

chosen to assert the right to exercise that authority, I will exercise careful discretion

before answering any certified question.

      In light of the recent amendment of the relevant statute by 2010 PA 108, this case

now only concerns a putative class of persons whose arguable claims arose before the

effective date of the amendment. Accordingly, the legal significance of the question
certified by the United States District Court for the Eastern District of Michigan is

considerably diminished. I would decline to answer the question in this instance.


                                                              Robert P. Young, Jr.




                                            2
                            STATE OF MICHIGAN

                                   SUPREME COURT


In re CERTIFIED QUESTION FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
MICHIGAN


KAREN WAESCHLE, individually and on
behalf of others similarly situated.

              Plaintiffs,

v                                                  No.      140263

OAKLAND COUNTY MEDICAL
EXAMINER and OAKLAND COUNTY,

              Defendants.


DAVIS, J. (dissenting).
       I would decline to answer the certified question because I am not persuaded that

the Court should answer this certified question.


                                                            Alton Thomas Davis
