Badder v. Carl J. Schmidt, M.D., M.P.H., Evin Fobbs, Levia Davis, Lorita Prentice, J. Scott Sommerset, M.D., Ph.D., Office of the Wayne Cnty. Med. Exam'r, Charter Cnty. of Wayne, & Generations Funeral & Cremation Servs., Inc.
| Decision Date | 07 October 2014 |
| Docket Number | No. 13-cv-10440,13-cv-10440 |
| Parties | MARY BADDER, Plaintiff, v. CARL J. SCHMIDT, M.D., M.P.H., EVIN FOBBS, LEVIA DAVIS, LORITA PRENTICE, J. SCOTT SOMMERSET, M.D., Ph.D., OFFICE OF THE WAYNE COUNTY MEDICAL EXAMINER, CHARTER COUNTY OF WAYNE, and GENERATIONS FUNERAL AND CREMATION SERVICES, INC., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
MARY BADDER, Plaintiff,
v.
CARL J. SCHMIDT, M.D., M.P.H., EVIN FOBBS, LEVIA DAVIS,
LORITA PRENTICE, J. SCOTT SOMMERSET, M.D., Ph.D.,
OFFICE OF THE WAYNE COUNTY MEDICAL EXAMINER,
CHARTER COUNTY OF WAYNE, and GENERATIONS FUNERAL
AND CREMATION SERVICES, INC., Defendants.
No. 13-cv-10440
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
October 7, 2014
Hon. Gerald E. Rosen
AMENDED OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on October 07, 2014
PRESENT: Honorable Gerald E. Rosen United States District Chief Judge
On October 26, 2012, Plaintiff Mary Badder commenced this § 1983/gross negligence lawsuit in state court naming as defendants Wayne County, the Office of the Wayne County Medical Examiner, several employees of the Medical Examiner's Office, and Generations Funeral and Cremation Services, Inc. The claims asserted by Plaintiff
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Badder arise out of the death of her 43-year-old daughter, Kelly Phillips, who was found in a home in Detroit dead of a drug overdose on November 7, 2009. Defendants removed the case to this court on February 4, 2013 based on Plaintiff's assertion of a claim arising under a federal statute. After the close of discovery, on November 27, 2013, Wayne County and three individual Defendants -- Wayne County Chief Medical Examiner Carl Schmidt, and two of the Medical Examiner's Office investigators, Evin Fobbs and Levia Davis -- filed the present motion for summary judgment.1
Having reviewed the parties' briefs and the entire record of this matter, the Court finds that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral argument would not significantly assist in the resolution of this motion. Accordingly, the Court will decide Defendant's motion "on the briefs." See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court's ruling.
Plaintiff Mary Badder is the mother Kelly Phillips, deceased. Kelly Phillips had a long history of drug abuse. Until shortly before her death, Phillips had been living in her mother's home in Westland, Michigan. Because her daughter had been in rehab, Ms. Badder believed Phillips had quit using drugs. However, approximately three weeks
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prior to her daughter's death, Plaintiff learned that Phillips had resumed using drugs. An argument ensued between mother and daughter which culminated in Phillips moving out of her mother's house. At her daughter's request, Plaintiff dropped Phillips off near a home in Detroit's Brightmoor area. Plaintiff did not ask her daughter where she was going to live. She admitted, however, that she was fully aware that her daughter was returning to a life on drugs. [See Plaintiff's Dep., pp. 39-43].
The day before her death, Phillips went to her mother's house to get money that had been deposited into her checking account. Id. Phillips told her mother that day that she was living in a half-way house in Dearborn Heights. After spending some time together, Plaintiff drove her daughter to a shopping center near the half-way house where Phillips wanted to do some shopping before she had to report back to the half-way house for the night. Phillips was to call her mother once she arrived back at the half-way house, but she never did.
Though Plaintiff never received the call her daughter had promised, she testified she was not concerned; she assumed her daughter had reported back to the half-way house late and had gotten into trouble for it. Id. at p. 41. Plaintiff admitted she never filed a missing person's report when she had not heard from her daughter for more than a week even though she learned that the purported half-way house was in fact, not a half-way house but a private residential dwelling. Id. pp. 46-47, 50-52.
On November 7, 2009, the occupant of a house on Bramell Street in the City of Detroit called the police to report that she had found Kelly Phillips unresponsive in one
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of the rooms of the home. The Detroit Police came to the scene, and after determining that Phillips was dead, notified the Wayne County Medical Examiner's Office ("WCMEO") .
The WCMEO dispatched investigator Levia Davis to the location. Upon arrival, investigator Davis identified Phillips with the assistance of one of Phillips' friends, Sandra Cryor. Cryor was the person who had called the police earlier that night. Defendant Davis searched the body and found a wallet which contained a Michigan-issued identification card. She then directed that the body be taken to the Medical Examiner's Office. Davis brought decedent's wallet and its contents back to the office to be processed, packaged and logged into the property book so that it could be returned to the decedent's next of kin.
The following day, November 8, 2009, WCMEO investigator Evin Fobbs, assumed responsibility for Phillips' case and the responsibility of notifying the decedent's next of kin. Fobbs' testified that, although he had no specific recollection, he was certain that he had searched Phillips' wallet because his regular procedure was to search for a driver's license or any paper in a decedent's belongings that might lead to the identification of next of kin. [Fobbs Dep., pp. 17-18].
Unable to locate any next of kin information in Phillips' wallet, Fobbs called Phillips' friend, Sandra Cryor, who had called police about Phillips, and left a message for her to contact him. That same day, Dr. J. Scott Somerset, an Assistant Wayne County Medical Examiner, performed an autopsy on Kelly Philips and determined that the cause
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of Phillips' death was acute cocaine and heroin intoxication.
Four days later, on November 12, 2009, Fobbs made a second attempt to identify any next of kin information and again tried to reach Sandra Cryor, as she was the only lead he had at the time. This time he was successful in reaching her. Cryor, however, indicated that she had only known Phillips for a short time and had no next of kin information. However, she promised that she would contact Fobbs with any information she might come upon.
Three weeks passed and Fobbs had not heard back from Cryor with any information on Phillips' next of kin. Therefore, on December 4, 2009, Fobbs once again contacted Cryor, but Cryor still had no information about Phillips' relatives.
At that point, Fobbs decided to start again from scratch by re-examining Phillips' wallet. It was in this second search of the decedent's wallet that Fobbs discovered a piece of paper that had been folded into a tiny square, no more than one-half inch in size, that was tucked into a corner of the wallet. [See Fobbs' Dep., p. 45.] On this piece of paper were the names "Mary Badder" and "Dennis DeCarlo," and two telephone numbers. Id. at p. 33.
Fobbs called the number for Mary Badder first, as it was the first one written on the paper, and left a message. He then he called Dennis DeCarlo. DeCarlo answered Fobbs' call and informed Fobbs that Mary Badder was Phillips' mother. After his conversation with DeCarlo, Fobbs received a return phone call from Mary Badder. Fobbs informed Ms. Badder of her daughter's death.
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Later that day, December 4, 2009, Badder went to the Medical Examiner's Office, confirmed her daughter's identity by looking at a photo, and signed an authorization for Generations Funeral Home to take custody of her daughter' body for burial. According to Badder's deposition testimony, when she asked the funeral director while making arrangements for her daughter's funeral if an open casket ceremony for her daughter was possible, she was told by the funeral director that she should "remember her as she was." [Plaintiff's Dep., p. 73.] Although she never saw the body, Plaintiff contends that her daughter's body was decomposed to such an extent that she was forced to cremate her instead of having a natural burial, which is what she would have preferred.
On October 26, 2012, Plaintiff filed the instant lawsuit. In Count I of her four-count Complaint, Plaintiff asserts a state common law claim of gross negligence against the individual WCMEO defendants based on the allegation that these defendants failed to ascertain Plaintiff's identity as Phillips' next of kin and notify her of her daughter's death within a reasonable time after the WCMEO took custody and control of the body.
Count II of Plaintiff's Complaint sets forth Plaintiff's lone federal claim: her claim of violation of 42 U.S.C. § 1983. In this Count, Plaintiff claims that the individual WCMEO employees, "individually and while in the course and scope of their employment," deprived her of her constitutional due process right to her daughter's body. Specifically, Plaintiff alleges a constitutional possessory right to the prompt delivery of her daughter's body for proper burial and that by not identifying her as Phillips' next of kin until after her daughter's body had been in their custody for 3 ½ weeks, Defendants
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violated that right. Plaintiff also predicates the violation of her due process right on the County Medical...
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