City retains teen’s brain, court reduces family award

April 18, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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A family was awarded $1 million for the pain and suffering they endured after discovering that their son’s brain was held by the Staten Island Medical Examiner without notification. The Appellate Division, Second Department, sitting in Brooklyn Heights, reduced the award to $600,000 on Wednesday.

On a class trip to the Medical Examiner’s Office a teen noticed a brain suspended in formaldehyde. This isn’t an unexpected visual at the morgue, except that this brain was labeled as belonging to the teen’s friend, Jesse Shipley, who died in a car crash.

Upon learning that their son’s organ was held without any notification or permission, Andre and Korisha Shipley, Jesse’s parents, sued the city asserting that the family was denied the right of sepulcher or the right to choose the final disposition of a dead body.

The Shipleys sought damages for the pain and suffering they endured from the traumatic discovery that caused them to hold a second religious funeral.

The Staten Island Supreme Court initially dismissed the suit, noting that questions remained as to whether Jesse’s brain was lawfully retained and whether the city unlawfully interfered with the Shipleys’ right of sepulcher.

The Medical Examiner has broad authority to conduct autopsies and remove and retain organs for examination when death is caused by a traumatic injury. This authority, however, is not absolute, the Appellate Division, Second Department, ruled in the case’s first appeal.

Writing for the court in 2010, Hon. William Mastro said, “while the medical examiner has the statutory authority to remove and retain bodily organs for further examination … [the examiner] also has the mandated obligation … to turn over the decedent’s remains to the next of kin … once the legitimate purposes for the retention…[has] been fulfilled.”

Overturning the dismissal of the Shipleys’ initial suit, the Appellate Division, Second Department, allowed the trial to proceed.

At trial, the Shipleys were awarded $1 million dollars, an award that the city challenged. “Never in the history of the Medical Examiner’s Office in the State of New York has it been deemed improper not to inform the next of kin of a retention of an organ for medical examination,” the city asserted in its appeal papers.

In its brief, unsigned ruling, the Appellate Division, Second Department, concluded that “the jury’s award of damages for past pain and suffering deviated materially from what would be reasonable compensation.” As such, the Shipleys must accept the reduced awarded of $600,000 or face a new trial.

Justices Reinaldo Rivera, Thomas Dickerson ,John Leventhal and Sylvia Hinds-Radix sat on the most recent Appellate Division Second Department panel.