On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, C-176-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Payne and Sapp-Peterson.
Steven Cohen Esdale, the son of Murray Cohen, appeals from the order of Judge Chambers denying with prejudice his application for exhumation of his father's body to permit an autopsy in order to determine whether Cohen was murdered. On appeal, Esdale makes the following argument:
THE APPELLANT SHOULD BE ALLOWED TO EXHUME THE BODY OF HIS FATHER TO OBTAIN FORENSIC EVIDENCE WHICH WOULD PROVE THAT HE DID NOT DIE OF NATURAL CAUSES, IN FACT, WAS MURDERED AT THE HANDS OF THE RESPONDENT, MARIA AMURRIO COHEN. BY THE LAWS OF THE STATE OF FLORIDA AND NEW JERSEY, A PERSON WHO TAKES THE LIFE OF ANOTHER SHOULD NOT BE ALLOWED TO INHERIT OR FINANCIALLY BENEFIT FROM THIS TYPE ACTION.
Cohen died on January 13, 2003 at the age of seventy-one while residing at his winter home in Sarasota, Florida with his wife, Maria Amurrio Cohen. According to Maria, the two had retired for a nap at approximately 4:30 p.m. Shortly before 6:00 p.m. Maria was awakened by a telephone call, which she answered in the kitchen. After determining that the caller wished to speak with Cohen, she returned to the bedroom to wake him, but was unable to do so. Maria thereupon called 911, which dispatched medical personnel, whose resuscitation efforts were to no avail. Cohen was pronounced dead at 6:05 p.m.
Because Cohen did not have a doctor in Florida, the Florida District Twelve Medical Examiner took jurisdiction over the case. Upon conducting an external examination of the body, which bore no evidence of foul play, and learning from Cohen's New Jersey primary care physician, Dr. McHugh, that decedent had a medical history of cardiomyopathy, hypertension and pulmonary disease, and that he was fortunate to have survived as long as he had, the medical examiner determined "to sign-out the case with external examination of the body only." Associate Medical Examiner Anderson signed the death certificate on January 15, 2003, listing the cause of death as "probable acute myocardial infarction due to atherosclerotic cardiovascular disease."
Cohen's body was thereupon transferred to a local funeral home, where he was embalmed in preparation for shipment to New Jersey for burial. However, because of suspicions as to the cause of death raised by Esdale, hair and vitreous fluid samples were taken from the embalmed body before it was sent to New Jersey. Subsequent toxicologic analysis of the hair was negative for heavy metals; analysis of the vitreous fluid revealed only methanol, an artifact of embalming fluid.
Esdale's concerns regarding the cause of his father's death continued, and in the ensuing months, he contacted the Sarasota County Sheriff's Office and the Office of the Medical Examiner on multiple occasions seeking further investigation. In support of his claim that foul play may have occurred, Esdale relied, in part, upon disputed analyses of copies of the recording of Maria's 911 call that suggested that Cohen was alive and conscious at the time of that call and that Maria had caused his death*fn1; a statement by Stephen Beninati, the late-afternoon caller, that he thought he had interrupted a domestic dispute; inconsistencies in Maria's account of what occurred; a neighbor's statement that she had seen Cohen in the yard during the time he was allegedly napping; and the fact that Maria and Cohen, a man twenty years older than she, had been married only three weeks at the time of Cohen's death. Of particular significance to Esdale was the discovery in Cohen's medicine chest of an empty bottle of Corazol, a non-FDA-approved nervous system and respiratory stimulant and convulsant manufactured only in Bulgaria and in Bolivia, Maria's home country. Esdale hypothesized that administration of the Corazol and other drugs by Maria, who had medical training, was the true cause of Cohen's demise and that an autopsy would prove that fact. However, as the result of the embalming process, it is unclear whether an autopsy, conducted now, would disclose the presence of Corazol or any other drug.
Following an extended investigation by the Sheriff's Office, referral of the 911 recording to the F.B.I. for analysis, and a review of the matter by the Florida Department of Law Enforcement, at the request of Florida's governor, the authorities in Florida closed the file, determining that Cohen had died of natural causes. Despite Esdale's continued efforts, they have adamantly refused to reopen the matter. A letter to Maria from the General Counsel to the Sarasota County Sheriff's Office, dated September 6, 2006, confirms that the Sheriff was not "seeking to exhume the body of Murray Cohen."
In a will executed on November 15, 2001, Cohen bequeathed a life estate in the Sarasota home to Maria and, it appears, the remainder of his estate to Esdale's son, Ryan.*fn2 Following Cohen's death, Esdale challenged the admission of that will to probate, but after a two-day trial, occurring on September 20 and 21, 2004, his challenge was denied. In an order authorizing payment of attorneys' fees and costs, dated July 28, 2005, the Florida probate judge recited: "The Court and Respondent, Steven J. Esdale, have acknowledged that the challenge to the admission of the subject Will to probate was frivolous and wholly lacking of any factual or legal basis." Accordingly, attorneys' fees in the amount of $102,293.75 and costs in the amount of $5,825.98 were approved, and the Personal Representative of the estate was "authorized and directed to pay $108,119.73 from the assets of the Estate, with payment of $102,596.48 being paid from Ryan Esdale's beneficial share of the Estate until his share is completely exhausted and the balance of $5,523.25 shall be paid from the other assets of the Estate." Thereafter, Esdale filed a Petition for Forfeiture*fn3 seeking to have Maria Cohen disqualified as a beneficiary under the will, which appears also to have been denied. We have been provided nothing that would suggest that probate proceedings remain open in any form.*fn4
In an action instituted in the Circuit Court in and for Sarasota County in 2004, Esdale sought exhumation of his father's body to determine through autopsy whether Corazol was the cause of his death. That relief was denied in an order filed on March 10, 2004. Thereafter, Esdale sought exhumation for the same purpose in actions instituted in the Chancery Division of the Superior Court of New Jersey in 2004 and 2005. Both applications were denied without prejudice by Judge Francis in orders filed on November 19, 2004 and August 9, 2005.
Esdale's third New Jersey action seeking exhumation of Cohen's body was denied with prejudice by Judge Chambers in an order dated October 20, 2006. In a written opinion accompanying that order, Judge Chambers recognized the State's strong policy against exhumation ...