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Austill v. Krolikowski

Supreme Court of Alabama

January 12, 2018

Gloria Austill and Mary Ella Etheridge
John Krolikowski

         Appeal from Mobile Circuit Court (CV-15-900982)

          SELLERS, Justice.

         Gloria Austill and Mary Ella Etheridge appeal from an order of the Mobile Circuit Court entering a summary judgment in favor of Dr. John Krolikowski, a senior medical examiner with the Alabama Department of Forensic Sciences ("the ADFS").

          They challenge on appeal the order insofar as it denied their motion to compel certain discovery. We affirm.

         I. Facts and Procedural History

         William Marshall Etheridge ("the decedent"), who was 86 years old and under hospice care, died on December 9, 2012. Mary Ella and Gloria are the decedent's widow and daughter, respectively. The Baldwin County District Attorney's Office authorized the ADFS to perform an autopsy on the decedent based on potential civil and/or criminal litigation against the nursing home where the decedent resided before his death.[1]Dr. Krolikowski conducted the autopsy on the decedent, at which time the brain was saved and "fixed" in formalin.[2]Following the autopsy, the decedent's body was transported to Radney Funeral Home in Mobile. While the decedent's body was at the funeral home, Mary Ella and Gloria (hereinafter referred to collectively as "the plaintiffs") requested that the decedent's brain be referred to the University of Alabama Hospital in Birmingham ("UAB") for a neuropathological examination. The plaintiffs then learned that the brain had not been returned to the body; it had been retained by Dr. Krolikowski.

         On April 13, 2015, the plaintiffs sued Dr. Krolikowski, individually, [3] as well as other fictitiously named parties, alleging that, following the autopsy, Dr. Krolikowski, without any compelling or legitimate reason, "harvested the decedent's entire brain without the family's permission and preserved it in his office for his own use." The plaintiffs sought compensatory and punitive damages based on claims of negligence and/or wantonness, trespass, conversion, breach of fiduciary duty, breach of implied contract, and the tort of outrage.

         On May 22, 2015, Dr. Krolikowski filed a motion to dismiss the complaint on the basis of, among other things, State-agent immunity. The trial court granted the motion to dismiss as to the breach-of-implied-contract claim but denied the motion as to all other claims.

         On July 7, 2015, the plaintiffs propounded written interrogatories and requests for production on Dr. Krolikowski. The parties, however, were unable to resolve a dispute as to whether Dr. Krolikowski was required to answer all discovery propounded or only discovery relevant to the issue of State-agent immunity. It was Dr. Krolikowski's position that the resolution of the State-agent-immunity issue was a prerequisite to full discovery. The plaintiffs ultimately withdrew their initial propounded discovery and substituted discovery they claimed related to the issue of State-agent immunity; Dr. Krolikowski responded in part and objected in part to the substituted discovery.

         On December 9, 2016, Dr. Krolikowski filed a motion for a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P., on the basis of State-agent immunity, citing Ex parte Wood, 852 So.2d 705, 712 (Ala. 2002)(noting that "the availability of the defense[] of ... State-agent immunity should be determined as a threshold issue in order to avoid the costs and expenses of trial where the defense is dispositive"). Dr. Krolikowski supported his motion for a summary judgment with, among other things, the sworn affidavits of Dr. Randy Lee Hanzlick, a board-certified forensic pathologist in Atlanta, Georgia, who had also served as Chief Medical Examiner of Fulton County, Georgia; Dr. Staci Turner, the regional Deputy Chief Medical Examiner for the ADFS in Mobile; Scott Belton, the Death Investigation Quality Manager for the ADFS; and Dr. Steven Frank Dunton, a senior medical examiner for the ADFS.

         Dr. Hanzlick, who served as an expert in the case, inspected numerous documents, including (1) the ADFS death-investigation report; (2) the draft and final autopsy report, including the original audio dictation and its transcription; (3) the ADFS laboratory reports; (4) the UAB brain-examination report, chain-of-custody form, and an e-mail communication regarding disposition of the brain; (7) sections of Alabama law relating to coroners; and (8) sections of the ADFS Death Investigation Policy and Procedures Manual for medical examiners. Dr. Hanzlick stated in his affidavit that the decedent's brain was saved to facilitate diagnosis and to address potential legal issues because the autopsy had been requested by the district attorney as a result of questions surrounding the decedent's death. Dr. Hanzlick explained in his affidavit that, in general, there is sometimes a need to retain, after autopsy, an entire organ such as the brain so that a specific study, beyond the routine autopsy, may be conducted. Dr. Hanzlick stated that the decision whether to retain a brain or the organ is a professional discretionary decision and that the medical examiner's discretion must be accommodated inasmuch as the performance of an autopsy is a medical procedure and the medical examiner must have necessary information to develop diagnoses and to formulate expert opinions. He further stated that there is "no requirement in Alabama or most other states that family permission is needed to perform an autopsy or retain needed specimens." In summary, Dr. Hanzlick opined:

"Dr. Krolikowski made a prudent and professionally appropriate decision to retain the brain. He was aware that the case may be complicated and involved potential allegations of possible neglect, abuse, and maltreatment with potential legal ramifications, and that there was concern about a somewhat sudden deterioration in mental status with possible degenerative neurological disease that could be relevant to family members. Retaining the brain made it available for thorough examination after fixation and also made it available for examination by other specialist[s] or experts, if needed. It is my opinion that Dr. Krolikowski's retention of the brain was reasonable and appropriate professional procedure in the case in question, and the lack of family permission to save the brain and lack of notification to the family that the brain had been retained following the autopsy and not returned with the body are not in violation of any law or policy."

         Dr. Turner stated in her affidavit that she supervised all medical examiners at the ADFS's Mobile office, including Dr. Krolikowski, and that there was no evidence indicating that Dr. Krolikowski had preserved the decedent's brain "in his office for his own use" as the plaintiffs alleged. Dr. Turner further stated that Dr. Krolikowski was not required to notify a decedent's family member that an organ, including a brain, had been retained following an autopsy, nor was he required to obtain permission from a decedent's family member to retain an organ, including a brain, following an autopsy. Dr. Turner specifically stated that Dr. Krolikowski's retention of the decedent's brain was a professional discretionary decision allowed under the ADFS Death Investigation Policy and Procedures Manual.

         Belton stated in his affidavit that the ADFS Death Investigation Policy and Procedures Manual provided medical examiners the discretionary authority to retain an organ, including a brain, when conducting an autopsy and that a medical examiner was not required by ADFS policy and procedure to obtain permission from the decedent's family to retain an organ, including a brain. Belton stated that, in this case, the district attorney authorized the autopsy because of the potential for a criminal investigation into the decedent's death, as well as the potential for civil litigation because there were indications that the decedent's family intended to sue the nursing home where the decedent resided immediately before his death.

         Finally, Dr. Dunton provided an affidavit stating that the circumstances of the case, including suspicion that the decedent suffered from Parkinson's disease and the possibility of civil litigation, could have easily prompted a medical examiner such as Dr. Krolikowski to retain the brain. He further stated that permission from the next of kin to retain an organ such as the brain following an autopsy is neither necessary nor required in the State of Alabama. Dr. Dunton concluded that, from a medical standpoint, the decedent received a thoughtful, professional, and thorough examination by Dr. Krolikowski and that, had he failed to harvest and preserve the decedent's brain for later examination, Dr. Krolikowski may have been subject to accusations concerning inadequate job performance.

         The plaintiffs did not oppose the summary-judgment motion on the merits. Rather, acting pro se, they filed a motion to compel, asserting that the discovery sought was crucial to "the issues" in the case. The trial court set a hearing on the motion for a summary judgment but subsequently postponed the hearing pending resolution of the immunity issue. The plaintiffs responded by filing a motion, pursuant to Rule 56(f), Ala. R. Civ. P., to continue any ruling on the summary-judgment motion until Dr. Krolikowski fully responded to the outstanding discovery. The plaintiffs submitted with their Rule 56(f) motion the sworn affidavit of Gloria, who stated, in pertinent part:

"I cannot adequately respond to [Dr. Krolikowski's] motion for Summary Judgment until he properly responds to my [interrogatories]. For instance, interrogatory number 9 specifically asks [Dr. Krolikowski] to '[P]lease describe in detail any and all tests, procedures, examination, analysis, etc., performed by the Defendant on the brain of the decedent.' This interrogatory was asked to determine whether [Dr. Krolikowski] followed the policies and procedures set forth in [the ADFS Death Investigation Policy and Procedures Manual]. It is my belief upon a review of the records that portions of the brain of my deceased father were improperly taken by [Dr. ...

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