New York City last month announced that it would appeal a jury’s award of $1 million to the family of Jesse Shipley. Sorry. My sympathies are with the family — which not only lost its son in a 2005 car crash, but which found months later that the medical examiner kept the boy’s brain without informing it.
The day after the horrific crash, Staten Island Medical Examiner Stephen du Roux conducted an autopsy with the consent of Jesse’s father. It was obvious that the cause of death was “multiple blunt impacts to the head . . . which produced skull fractures and brain hemorrhages,” as du Roux’s report concluded.
Yet the ME still removed Jesse’s brain for “further study.” The body was returned to his family the next day for a wake and burial — with the family uninformed that the brain was missing.
Two months later, by surreal coincidence, some of Jesse’s classmates went on a field trip to the Staten Island mortuary, where they saw a specimen jar containing a brain in formaldehyde bearing the label “Jesse Shipley.”
Informed of this, the family consulted with its priest, who told them it was important that they retrieve Jesse’s brain, exhume his body and rebury it with the brain in place.
Unbelievably, even then, the ME refused to return Jesse’s brain, insisting he wasn’t done dissecting it — more than two months after the accident. Only under court order did the city relent, allowing a proper reburial.
Jesse’s family had to go through the devastating grief of burying a 17 year-old son and brother twice, thanks to the ME, backed by the city.
The family then sued the city. Under the common law “right of sepulcher,” the next of kin has the absolute right to deceased’s body for preservation and burial and to collect damages from anyone who interferes with that right.
The city at first argued that state law gives the ME’s office the discretion to remove and keep organs for future testing. The courts agreed — but said the ME did have to inform the family. On that legal basis, a jury awarded each of Jesse’s parents $500,000 in damages.
The city is appealing, claiming that, because the ME’s office had never previously recognized that notification rule, the jury verdict should be set aside. In other words, ignorance of the law (and of common sense and decency) is the city’s excuse.
Want more evidence of the city’s bad faith? At trial, the city’s lawyer actually said that Jesse’s father, André Shipley, should’ve asked if his son’s body was being returned with his brain. If he had, he would have known it was being withheld and could have delayed the funeral arrangements until the ME had completed his further tests and returned it.
Seriously? That’s a question Jesse’s father should have known to ask? Maybe Jesse’s brain isn’t the only one missing.
As another court considering a missing-brain claim recently held: “This case is not about a random piece of human tissue. It is about the decedent’s brain . . . the source of the deceased’s every thought, aspiration, dream, fear, laugh, memory or emotion . . . the origin of every word spoken, every song sung, every joke told; everything a family member loved about the deceased could be traced back to it.”
The ME had no justifiable interest (as coroner) in keeping and dissecting Jesse’s brain (let alone in doing so and not telling the family). He knew what had caused Jesse’s death to a certainty and clearly wasn’t investigating a crime. Was his real interest some generalized scientific study? That’s a proper subject for consensual research, not for covertly keeping a dead boy’s brain.
The city has to fight thousands of baseless lawsuits each year. This isn’t one of them.