In a ruling on a lawsuit that potentially threatened Ohio counties with an estimated $90 million in liability, the Sixth Circuit has determined that “[a]lthough there is no dispute as to the facts as the [Plaintiff-Appellants] present them, they had no property interest in their son’s brain, thus, they cannot support the first element of a due process clause claim.  Their claim fails as a matter of law.”  Albrecht v. Treon (6th Cir., Case No. 09-3703, Aug. 24, 2010) (PDF).

In the underlying dispute, which has been ongoing in federal and Ohio courts since 2006, a county coroner autopsied the Albrechts’ deceased son, removing his brain for analysis.  The body was subsequently returned to the Albrechts, but the brain was destroyed in accordance with the coroner’s usual practices.  The Albrechts were not informed of the brain’s destruction, and when they reviewed the autopsy report and learned that the brain had been disposed, they brought a class action suit in the Southern District of Ohio under 42 U.S.C. § 1983, claiming a violation of the Due Process Clause of the Fourteenth Amendment and common law tort liability.  The district court certified to the Supreme Court of Ohio the question whether Ohio recognized a constitutionally protected property interest where a body part was removed for legitimate investigative purposes.  The Supreme Court of Ohio answered in the negative (PDF), stating that no such property interest existed where human remains were retained by the state for criminal investigative purposes.  On this basis, the district court held that the Albrechts had no property interest and granted the defendants judgment on the pleadings.

Writing for a unanimous panel that included Judge Griffin and Senior District Judge Hood of the Eastern District of Kentucky, Judge Guy affirmed the district court.  Unlike cases involving organ donation, where the Uniform Anatomical Gift Act (which was adopted by Ohio) expressly grants next of kin the right to dispose of a relative’s remains, Ohio has no similar law governing autopsied remains.  The Court observed that state law governs which rights, if any, apply to “property,” noting the Supreme Court of Ohio’s ruling on the certified question put to it.  Because Ohio recognizes no property right of the kind asserted by the Albrechts, their Section 1983 due process claim failed as a matter of law.

The unusual nature of the case has garnered attention elsewhere in the legal blogosphere, and the Albrechts have stated their intention to appeal the Sixth Circuit’s ruling to the U.S. Supreme Court.