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Kellogg v. Office of Chief Medical Examiner of City of New York

Other Lower Courts

September 24, 2001

John Kellogg, Individually and as Administrator of the Estate of Junius Kellogg, Deceased, Plaintiff,
Office of the Chief Medical Examiner of the City of New York et al., Defendants.


Michael D. Hess, Corporation Counsel of New York City (Ryan Donihue of counsel), for defendants.

Mark B. Stumer &

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Associates, New York City (Kipp Elliott Watson of counsel), for plaintiff.


Paul A. Victor, J.

The Issues Presented

The following novel legal issues are presented by defendant's motion for summary judgment:

1. Does the law provide a Medical Examiner in the City of New York with an unfettered discretion to (a) investigate the circumstances of a death; and/or (b) to conduct an autopsy?

2. Does a request by a terminally ill decedent to decline medical treatment or to discontinue artificial life support, constitute, in and of itself, an " unusual circumstance" warranting the exercise of discretion to perform an autopsy?

3. Does a quadriplegia sustained by a decedent in an automobile accident which occurred 44 years ago serve as a rational basis for the exercise of discretion to perform an autopsy?

4. Does the failure by the next of kin to plead and prove the making of a prior objection based on " religious beliefs" require the dismissal of each of the plaintiff's two causes of action?

The Claims, Motion and Relief Requested

Plaintiff, in both an individual and representative capacity, seeks (in a first cause of action) compensatory and punitive damages for intentional infliction of emotional distress, arising out of the alleged unauthorized autopsy conducted on the body of the decedent Junius Kellogg, a quadriplegic who died at the Bronx Veterans Affairs Medical Center on September 16, 1998. In a second cause of action, plaintiff seeks similar damages based on the allegation that the autopsy constituted an unlawful discrimination predicated on decedent's disability.

This court takes judicial notice of what is common knowledge (see Hunter v New York Ontario & W. R. R. Co., 116 N.Y. 615 [1889])--that Junius Kellogg was " a dedicated public servant, an athlete of remarkable ability, and a man of courage and dignity" (statement by Mayor Giuliani, <> ); that as a star center on the Manhattan College basketball team he refused to take a $1,000 bribe from a gambler and exposed a point-shaving gambling operation; and that after his career with the Harlem

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Globetrotters ended in 1954 when he was paralyzed in a car crash, he worked with physically challenged persons, served in several agencies of the City of New York, and was nominated to the Basketball Hall of Fame.

The defendant City of New York moves pursuant to CPLR 3211 to dismiss each cause of action and/or for summary judgment pursuant to CPLR 3212. Defendant asserts that the New York City Charter provided the authorization and discretion for the Office of the Chief Medical Examiner (OCME) to perform an autopsy on the body of the decedent Junius Kellogg. Tracking the language of the Charter, the defendant claims that the decedent died " suddenly when in apparent health" and in a " suspicious or unusual manner," because, among other things, " it was suspected [by the Office of the Chief Medical Examiner] that the automobile accident contributed to [his] death." Defendant argues further that since " plaintiff has failed to demonstrate that defendants performed an un authorized autopsy," and that since plaintiff had failed to even plead, much less prove, a claim of religious objection (even though plaintiff was at the premises of OCME), each cause of action is deficient and must be dismissed as a matter of law.

Plaintiff argues that the autopsy was not authorized by statute since decedent clearly died from natural causes; that there was no consent to autopsy (express or implied); that no express objection to the autopsy was required by law or otherwise; that he did not expressly object while he was at the premises of the OCME because he was misled into believing that the autopsy had been performed prior to his arrival; and that he " did not have to put a sign on [his] brother's body saying do not dissect in order to preserve [his] sacred familial relationship with [his] brother." Plaintiff requests that the court search the record and grant judgment in his favor on the first cause of action. As to the second cause of action, which alleges discrimination based on disability, the plaintiff seeks an opportunity to conduct pretrial discovery to establish, among other things, that " the real reason why my brother's body was dissected was to satisfy a morbid, cruel scientific curiosity." He seeks compensatory and punitive damages upon the further allegations " that people with disabilities are victimized much more readily by this brazen bureaucratic claim of unlimited jurisdiction" and that " this is the regular practice [of the OCME]."


The limited reports and papers provided to the court on these motions disclosed the following relevant facts. The decedent,

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who was 71 years of age at the time of his death, had been rendered a quadriplegic as result of a car accidentin 1954! However, despite his disability and several admissions over the years to the Bronx Veterans Affairs Medical Center (for, among other things, coronary by-pass surgery, and an abdominal aortic aneurism repair) the decedent, prior to his final admission to the hospital on May 8, 1998, had been considered " high functioning" and " independent," although wheelchair bound. On May 8th, after developing a blood clotting problem with his left arm and a urinary tract infection, he was admitted to the hospital and medicated and anti-coagulated. At some point thereafter it became necessary to transfer decedent to an intensive care unit (ICU) when he developed pneumonia and sepsis, complicated by a chronic obstructive pulmonary disease, all of which ultimately resulted in respiratory failure, multiple organ failure and death. Reports contained in the OCME record indicate that it was on August 28th, while in the ICU, that decedent developed an adult respiratory distress syndrome (ARDS), which required intubation [1] and that he thereafter became ventilator dependent. A most revealing entry in the OCME record (which has been conspicuously ignored by the defendant, both in its argument and in its recitation of the alleged facts) appears to indicate that death was anticipated by all family members and attending physicians. Apparently, after having been on the ventilator for a substantial period, with no hope for improvement and a worsening of his underlying illness, Junius Kellogg voluntarily chose not to be kept artificially alive. The OCME record contains a report, which was prepared and signed by Dr. Huang (the " Reporting Physician" from the Bronx Veterans Affairs Medical Center) in which he states, among other things, that, " Patient's condition decompensated. ARDS. Patient expressed desire to be extubated. Discussed with family. Patient terminally weaned on 9/16. Patient remained comfortable/sedated." No evidence submitted to the court on this motion provides any reasonable explanation as to why it was deemed necessary by the Bronx Veterans Affairs Medical Center to report this death to the Medical Examiner as one worthy of investigation or autopsy pursuant to applicable law.

Additional circumstances surrounding the death of the decedent Junius Kellogg (which are not denied by defendant)

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are further described in an affidavit submitted by the decedent's brother, plaintiff John Kellogg, who states that Junius Kellogg was on life support due to his failing heart condition, and that after discussion with his closest family members, he " expressed his desire to leave this world as peacefully as possible" and said " goodbye" to his family and asked to be extubated.

The autopsy report prepared by the Office of the Chief Medical Examiner provides the following ...

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