467 F.2d 290 (2nd Cir. 1972), 12, Donnelly v. Guion

• Docket Number: 71-2166.,12
• Citation: 467 F.2d 290
• Date: 10 October 1972
• Parties: Mary Elizabeth Foy DONNELLY, Appellant, v. H. Gibson GUION et al., Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 290

467 F.2d 290 (2nd Cir. 1972)

Mary Elizabeth Foy DONNELLY, Appellant,

v.

H. Gibson GUION et al., Appellees.

No. 12, 71-2166.

United States Court of Appeals, Second Circuit.

October 10, 1972

Argued Sept. 21, 1972.

Page 291

Charles N. Segal, Hartford, Conn., for appellant.

William R. Moller, Hartford, Conn. (Wesley W. Horton, Regnier, Moller & Taylor, Hartford, Conn., on the brief), for appellees.

Before KAUFMAN, SMITH and MANSFIELD, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

This appeal, taken by the mother of the young man whose tragic and untimely death precipitated this litigation, requires us to determine whether the district judge correctly granted the defendants' motion for summary judgment. Unmistakably, summary judgment is a drastic device because its prophylactic function, when exercised, cuts off a party's right to present his case to the jury. Yet, if the case is totally devoid of an issue of fact there is no reason why the curtain should rise on the trial. After a careful review, we conclude that the affidavits submitted by the parties revealed no genuine issue as to any material fact. Accordingly, we affirm the judgment below.

I.

The factual setting of this case is relatively brief. David Foy, a resident of Miami Beach, Florida, where his mother Mary Donnelly resided, was a student at the Canterbury School in New Milford, Connecticut. David, who was sixteen years old, suffered from Marfan's syndrome, a congenital condition affecting the connective tissues. In many instances Marfan's syndrome leads to the formation of an aneurysm which if it ruptures may cause death.

Misfortune struck on the morning of January 31, 1969. David was found in his bed, apparently lifeless, by another student at the Canterbury School. Dr. Robert McDonald, the school physician and also medical examiner for New Milford, was summoned and upon examining the young man concluded he was dead. Dr. McDonald knew from the school's medical records that David suffered from Marfan's syndrome but he concluded that an autopsy was necessary to determine with certainty the cause of David's death because there were no external indications of its cause. Accordingly, the body was transported to the New Milford Hospital Morgue, where an autopsy was performed by Dr. Ernest Izumi, a pathologist in private practice designated by H. Gibson Guion, the county coroner, to perform autopsies. This autopsy revealed that the death resulted from a "Ruptured saccular aneurysm due to Marfan's syndrome."

Whatever initial feelings Mrs. Donnelly experienced, ¹ it is clear that she eventually became quite distraught over the

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performance of the autopsy on her son, which she says was performed without her consent. Accordingly, she commenced the instant litigation in January 1970. The action, brought in the District Court for the District of Connecticut, named McDonald, Guion and Izumi as defendants. ² The complaint sought damages for the mental and physical distress suffered by Mrs. Donnelly by reason of the autopsy and also resulting from the failure of Dr. Izumi to return organs which had been removed from the body. It alleged that Dr. McDonald had no reason to suspect that the cause of death was anything but the rupture of an aneurysm caused by Marfan's syndrome; accordingly, his conclusion that an autopsy was necessary to determine the cause of death was "wanton, reckless and unlawful." It charged further that Conn.Gen.Stats. § 19-143 required the consent of a relative prior to performing an autopsy in all cases except where there is a suspicion that criminal conduct was responsible for the death. Guion's liability was grounded in his failure to examine the body before the autopsy was performed as it was claimed was required by Conn.Gen.Stats. § 6-59. Dr. Izumi, the complaint stated, was liable because he performed the unauthorized autopsy.

After Judge Blumenfeld denied a motion, pursuant to Rule 12(b)(6), F.R.Civ.P., to dismiss the action for failure to state a claim upon which relief could be granted, the defendants moved for summary judgment on all claims under Rule 56, F.R.Civ.P. The parties submitted affidavits in support of, and in opposition to, the motion. Among other things, Dr. McDonald's affidavit stated that he concluded that an autopsy was necessary to determine the cause of death because David's medical history, including his most recent X rays and his recent general health, revealed no aneurysm formation and because there were no external indications of the cause of death. In sum, he stated "the common indications of death from Marfan's were not present and I felt for this reason that I could not state the cause of death with any degree of certainty unless an autopsy was performed." In response to Dr. McDonald's sworn assertions, Mrs. Donnelly's affidavit stated:

I believe that my son's medical record at the school, plus knowledge of his condition by Dr. McDonald, as the school physician, plus the fact that he was found dead in his bed, taken together could lead only to a conclusion of a natural death due to his pre-existing heart problems. ³

Judge Blumenfeld decided that no genuine issue as to any material fact survived, as required by Rule 56, and that Dr. McDonald's conclusion that the cause of death was uncertain did not constitute wanton and wilful misconduct. ⁴ He further held that where the cause of death was obscure, Connecticut law authorized the medical examiner to order an autopsy without securing a relative's written consent and without a prior examination of the body by the coroner. Accordingly, he ordered summary judgment in favor of all three defendants on that portion of the complaint which alleged an unauthorized autopsy. Summary judgment was denied on Mrs. Donnelly's claim against Dr. Izumi for retention of the removed organs since the filed affidavits revealed a genuine issue as to whether she requested their return. Judge Blumenfeld subsequently entered an order of final judgment under Rule 54(b), F.R.Civ.P., as to

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