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Action Over Plane-Crash Body Switch Advances

(CN) - The pathologist who delivered the wrong man's body for burial after plane crash victims were misidentified may be liable, an Ohio appeals court ruled.

Frank Granato and pilot Arthur Potter died on March 5, 2010, when their plane went down in Union County. The Union County coroner who recovered the bodies at the scene, identified them, and sent them to Montgomery County for forensic services.

The body that was identified as Granato arrived in two separate bags, accompanied by a flight jacket with the name "Potter."

Despite their doubts about the Union County coroner's identification, neither Montgomery County pathologist Robert Shott, nor his autopsy technicians contacted the Potter and Granato families to inquire about personal effects or scars.

When the coroner later doubted his own identifications, Shott consulted an odontologist after the autopsies. This specialist examined the jaws and dental records, and determined that the identities of the victims were incorrect.

Shott testified that he asked morgue supervisor Jeff Delorme what the odontologist's report said, and that Delorme replied, "Yes, it's them."

Delorme testified that he offered the report to Shott, but that Shott had told him to "go ahead and file it and just release the bodies."

Potter's family cremated the body that was delivered to them, while Granato's family had a Catholic burial service.

When the families later received their loved one's personal effects, they discovered the error.

Mary Granato, Frank's wife sued the Montgomery County Commissioners, as well as Shott and Montgomery County coroner James Davis, individually and in their official capacities.

The trial court dismissed the claims against Davis and the commissioners, but it kept the claims against Shott intact, citing the dispute about whether he acted recklessly in failing to assure the correct identification of the bodies.

The Dayton-based Second Appellate District ruled against the pathologist on Dec. 19.

In addition to failing to read the dental report and to submit fingerprints to other agencies, Schott also neglected to call to the families, who would have revealed that the man with glasses, a loaded handgun and a gold tooth, according to the ruling.

"Given the high risk of misidentification, as demonstrated by the significant damage to the bodies and the presence of Potter's coat on one of the bodies, there were genuine issues of material fact regarding whether Shott's failure to undertake appropriate steps to ascertain the correct identity amounted to more than negligence," Judge Jeffrey Welbaum wrote for a three-person panel.

Shott deserves qualified immunity on the due-process claim regarding Granato, however, because "a jury could not conclude that Shott acted with deliberate indifference such that his actions would shock the conscience," the ruling continues.

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