How Plaintiff’s Counsel Can Neutralize a Problematic Medical Examiner’s Report

Reprinted with permission from the August 12, 2026 edition of The New York Law Journal, copyright 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited; contact 877-257-3382 or reprints@alm.com.

Medical examiner (“ME”) reports play a vital role in wrongful death lawsuits by investigating unnatural deaths. Containing the official record of the cause and manner of an individual’s death, they offer evidence that drives plaintiffs’ (and defense) counsel’s litigation strategies from pre-suit resolution through trial. A well-supported report in favor of their client gives a plaintiff’s counsel an early tactical advantage in such a suit.

MEs, however, are not infallible, and their reports certainly are not. Sometimes they cannot identify a cause of death. Other times, they misstate the cause and/or manner of death, or they consider an unnatural death to be a natural one and avoid their statutory duty to “fully investigate” it. Any of these circumstances could undermine a plaintiff’s claims.

To prevent that from happening, a plaintiff’s counsel can take action that neutralizes the ME’s report and persuades defense counsel and the fact finder that their theory of the case should win the day.

Medical Examiners’ Authority, Duties, and Reports Under New York Law

The authority and duties of MEs outside of New York City are codified in Article 17-A of the New York County Law. The Office of Chief Medical Examiner of the City of New York is exempt from Article 17-A under County Law § 670 because it operates under city-level authority pursuant to N.Y.C. Admin. Code title 17, chapter 2, and N.Y.C. Charter § 557.

County Law § 671(1) states that an ME “shall make inquiry into unnatural deaths within his county as prescribed by law”. Section 673(1) provides MEs with “jurisdiction and authority to investigate the death of every person dying within his county, or whose body is found within the county”, when their death appears to have been a violent death, one caused by “unlawful act or criminal neglect”, one occurring in “a suspicious, unusual or unexplained manner”, one occurring “while unattended by a physician”, or when the decedent was “confined in a public institution other than a hospital, infirmary or nursing home”.

Section 674(1) states that when an ME “is informed of the occurrence of a death within his jurisdiction . . . he shall go at once to the place where the body is and take charge of it”. Section 674(2) states that an ME “shall fully investigate the essential facts concerning” a death, “taking the names and addresses of as many witnesses thereto as it may be practicable to obtain”, and taking “possession of any portable object which, in his or their opinion, may be useful in establishing the cause or means of death”.

During their investigation, per section 674(3)(a), an ME “shall make or cause to be made such examinations, including an autopsy, as in his or their opinion are necessary to establish the cause of death, or to determine the means or manner of death, or to discover facts”. In the course of their investigation, section 674(3)(b) states that an ME “shall make or cause to be made quantitative tests for alcohol, and for any trace of a controlled substance”.

New York Public Health Law § 4103 establishes that “any copy of the record . . . of a death”, “when properly certified by the local registrar, shall be prima facie evidence of the facts therein stated in all courts and places and in all actions, proceedings, or applications, judicial, administrative or otherwise . . . ”. Certified copies of a death record, a certificate of death, or a transcript of a death certificate “shall be prima facie evidence in all courts and places of the facts therein stated” when they are “properly certified by the commissioner or persons authorized to act for him”.

New York courts have held the cause of death as listed on a death certificate to be admissible. See, e.g., Duffy v. 42nd St., M. & S.N.A. Ry. Co., 42 N.Y.S.2d 534 (App. Div. 1943). Courts have also routinely admitted medical opinions by examiners as to the cause of death. See, e.g., Walters v. State, 479 N.Y.S.2d 964 (Ct. Cl. 1984); Coakley v. Parkway Hosp., 959 N.Y.S.2d 722, 724 (2d Dep’t 2013).

What Plaintiff’s Counsel Can Do When a Medical Examiner’s Report Undermines Their Client’s Case

In wrongful death cases, an ME’s report that does not identify a cause and/or manner of death, misstates either, or considers an unnatural death to be a natural one, thus avoiding an ME’s statutory duty to “fully investigate” it, is a problem for a plaintiff. Certified causes of death are often introduced by a plaintiff’s counsel early ‌in the pleadings to anchor their causation theory. Defense counsel might cite it in a motion to dismiss or motion for summary judgment to support a lack of causation. At trial, either side is likely to present the ME’s report to the fact finder as the official account of how the decedent died, lending credibility to their theory of the case.

Although a problematic ME’s report is a significant obstacle on the way to a favorable outcome in a wrongful death case for a plaintiff, it is not an insurmountable one. When faced with an ME’s report that could undermine their case, counsel has several strategic decisions to make and tactics they can deploy to overcome it.

Initially, a plaintiff’s counsel must determine the problem the ME’s report poses. Is the problem that the ME has not determined a cause of death? Does the stated cause of death undermine their case? Or did the ME fail to conduct a statutorily required investigation of it? Whatever the shortcoming, a plaintiff carries the burden of proving the cause of death by a preponderance of the evidence, and may need to rebut prima facie evidence of the cause of death in the form of the ME’s report.

As soon as plaintiff’s counsel determines that the ME’s report is problematic, they should determine what materials the ME still holds so they can have a sense of their options for attacking the report. Has the ME released the body? If so, where is it? Has it been buried or cremated? Does the ME still have paraffin blocks, histology slides, stained slides, and other original materials used to determine the cause of death? If the ME still possesses the body, plaintiff’s counsel may have a shrinking window to commission an independent autopsy, as the body’s decomposition may affect the quality of the autopsy.

Regardless of what a plaintiff’s counsel does concerning an independent autopsy, they should seek discovery of the ME’s full file regarding the decedent. To do so, they should consider a non-party subpoena plus a parallel Freedom of Information Law request. Their subpoena should seek all available physical specimens, along with paper and electronic documents, so they can re-examine those specimens if necessary.

In addition, counsel should consider retaining a consulting expert — perhaps a board-certified forensic pathologist who was an ME — to review the materials secured by the subpoena and FOIL request. The expert’s job is to determine at the outset whether science will support a plaintiff’s counsel’s theory regarding the decedent’s cause of death. Photographs, toxicology reports, and even scene investigation reports included in the ME’s file may offer a persuasive, alternative cause of death that supports counsel’s theory.

If the dispute is over physical findings, a plaintiff’s counsel may have no choice but to commission experts to re-examine the physical evidence. This can be as simple as re-examining retained specimens. But depending on the nature of the case and counsel’s theory of the cause of death, this examination could escalate to a second autopsy if the body is still available. If it is not available, and counsel and their client believe a physical re-examination is required, they could seek exhumation. Note that a second autopsy may be discoverable depending on whether a testifying or non-testifying expert prepared it. Thus, if a testifying expert’s autopsy confirms the ME’s findings, plaintiff’s counsel will have just solidified the defense’s theory.

A plaintiff’s counsel can fight an adverse ME’s report outside the morgue, too. When the ME does not provide a cause of death, counsel can rely on the records and testimony of the decedent’s treating physicians to offer a cause of death that ‌fits their theory of the case. The decedent’s records can establish baseline health, preexisting conditions, and the overall trajectory of their health. Counsel can also enlist an expert, likely a non-pathologist specialist, to rule out various causes of death based on the treating physicians’ records and testimony.

By now, plaintiff’s counsel has hopefully developed records and expert analysis that support its theory of the cause of death. If, objectively, the records and analysis are persuasive, counsel can request that the ME amend its initial report. If the ME does so, counsel has likely turned the case in their favor. But plaintiff’s counsel should not make this decision lightly, since the ME’s refusal to do so could be used against the plaintiff before and during trial.

If plaintiff’s counsel has built a persuasive record to support their theory of the cause of death but cannot persuade the ME to amend their report, they could attempt to depose the ME as a non-party to lock in concessions spurred by counsel’s record. If the ME’s report was inconclusive, plaintiff’s counsel can seek a concession from the ME that counsel’s expert’s findings as to a cause of death were consistent with or not excluded by the ME’s findings. If the ME’s report contradicts counsel’s theory, counsel may score points with opposing counsel and the fact finder by establishing that the ME did not rely on certain records or tests that their expert relied on, or otherwise failed to “fully investigate” the death, which, had they done so, would have changed the ME’s conclusion to one that supports the plaintiff’s theory.

Besides deposing the ME, plaintiff’s counsel can litigate the ME’s report through motion practice. As noted above, Public Health Law § 4103 states that the death certificate is prima facie evidence of the cause and manner of death, which can be rebutted. In opposing a motion for summary judgment, plaintiff’s counsel can raise a triable issue of fact by introducing their expert’s admissible contrary opinion as to the cause of death. But counsel must be prepared for opposing counsel to not only do the same, but also to attempt to leave them with no admissible causation proof if they can successfully exclude the plaintiff’s experts’ opinions about the cause of death when the ME’s report does not determine a cause of death.

When the record is solidified, plaintiff’s counsel has one last decision to make: Should we call the ME as a witness at trial? If the ME’s original or amended report supports or does not preclude counsel’s theory, they will likely benefit from the credibility and neutrality an ME would bring. If the ME’s original or amended report still undermines counsel’s theory, counsel may score more points with the fact finder by having their expert attack the ME’s report from the stand. Even if the report comes in as a public record without live testimony, counsel may determine that the ME’s live testimony would be valuable as a means of preserving the opportunity to cross-examine the report’s author.

An Adverse or Inconclusive Medical Examiner’s Report Is the Beginning, Not the End

In a perfect world, a plaintiff’s counsel litigating a wrongful death case would have the benefit of a bulletproof, unimpeachable ME’s report that supports their theory of the case and undermines the defense’s theory. But we don’t live in a perfect world.

When a plaintiff’s counsel faces an inconclusive or adverse ME’s report that undermines their theory of a case, the report need not be fatal to that case. They can run a playbook to help neutralize the ME’s report’s negative impact.

New York law recognizes the evidentiary weight of death certificates and ME reports, but they are not the last word on causation in a wrongful death case. A problematic ME’s report is an invitation for a plaintiff’s counsel to rebut that report by exploring all avenues that support their theory of a decedent’s cause of death.