Wrongful Death - Evidence Inadmissible

Plaintiff’s personal representative brought a wrongful death lawsuit against an Oregon company alleging that the plaintiff’s death resulted from her consumption of microcystin toxins contained in the company’s dietary supplements.  In an attempt to support this claim, the plaintiff’s representative hired a German university professor to test the plaintiff’s tissue for the presence and concentration of microcystin.  The immunohistrochemical testing performed by the doctor was novel as it had never before been used to detect microcystin in human tissue.  The doctor performed three series of tests on the plaintiff’s tissue of which each had varied results, false positives and error rates in excess of 16%.

Sam Ruckwardt of Smith Freed & Eberhard successfully briefed that the analyzed data and expert’s testimony was not scientifically valid and therefore should be found inadmissible under Oregon case law.

In February 2007, a Multnomah County Judge ruled that the doctor’s testing, and opinions derived there from, were not scientifically valid and were therefore inadmissible at any trial. In May 2009, the Court of Appeals affirmed the judge’s ruling again finding that the doctor’s testing invalid.  

Plaintiff’s personal representative voluntarily dismissed her case against the Oregon company.