In July 2021, the Federal Reserve Bank of Minneapolis required its employees to be vaccinated against COVID-19. The policy allowed religious exemptions. Plaintiff Rodney Maki—one of the Bank’s law enforcement officers—requested one, citing his opposition to vaccines linked to fetal stem cells. The Bank granted Maki a temporary accommodation but revoked it a few months later. In January 2022, Maki remained unvaccinated, and the Bank terminated him. Maki sued under Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act (or “RFRA”) for religious discrimination.
Maki filed a motion to exclude two of Bank’s experts, Dr. Frank Rhame and Jennifer Bey. The Bank, in response, filed a motion to exclude the testimony of Maki’s expert rebuttal witness Dr. Peter A. McCullough.
Infectious Diseases Expert Witness
Dr. Frank S. Rhame is a medical doctor with board certifications in internal medicine and infectious diseases. He studied at Stanford University and directed the Hospital Infection Control Program at the University of Minnesota. Rhame is an Adjunct Professor of Medicine at the University of Minnesota and is a fellow of the Infectious Diseases Society of America. He has presented over twenty lectures on COVID-19 and testified as an expert in two trials.
Vocational Rehabilitation Expert Witness
Jennifer Bey is a vocational expert and owner of Bey & Dyer. She has a B.S. in Psychology from the University of Wisconsin-River Falls and a Master’s in Rehabilitation Counseling from Illinois Institute of Technology.
Bey has over twenty years of experience in the field, and has testified or been deposed as an expert in thirty-four cases from 2017 to 2024, not counting this matter.
Internal Medicine Expert Witness
Dr. Peter Andrew McCullough has a medical degree from the University of Texas Southwestern Medical School in Dallas. He completed a master’s degree in public health in the field of epidemiology at the University of Michigan. McCullough has published frequently in medical journals and provided testimony on government panels on the response to the COVID-19 pandemic.
He is board certified in the United States in internal medicine and cardiovascular disease, and holds an additional certification in clinical lipidology, as well as a previous certification in echocardiography.
Discussion by the Court
Frank Rhame
Maki argued that Rhame’s testimony regarding the effectiveness of vaccines on COVID-19 infection and transmission is irrelevant to the Bank’s undue hardship defense and described scientific opinions the Bank never consulted while it developed its vaccination policy.
There are two basic aspects to Maki’s argument that Rhame’s opinions should be excluded. The first is that Rhame addresses many scientific aspects of COVID-19, but “COVID-19 is not on trial in this case.” This argument is not persuasive. In developing its vaccination policy and in determining not to grant Maki’s requested accommodation, the Bank accounted for a variety of scientific information regarding COVID-19, the disease’s impact on its employees and operations, and the efficacy of vaccines or other measures in addressing these impacts. The Court held that Rhame’s proffered testimony will assist the jury in understanding this information.
The second aspect to Maki’s argument is that Rhame’s proffered testimony would concern information the Bank never considered in developing its policy or refusing the requested accommodation.
The Court explained that the issue with Maki’s motion is that he did not point out the specific parts of Rhame’s testimony that were based on information the Bank did not have in January 2022 or before.
Jennifer Bey
First, Maki argued that Bey is not offering specialized knowledge, but rather a cursory and superficial analysis within the jury’s capabilities. However, Bey did not merely repeat written job descriptions or compare them as a layperson might. She analyzed Maki’s deposition testimony in relation to his work for both employers.
As for Bey’s salary-comparison analysis, Maki contended that Bey “did not address Maki’s testimony, nor did she identify what most of the security jobs’ benefits packages might entail, and how they would compare with Maki’s benefits at the Bank.” The Court clarified that the problems Maki pointed out are matters that can be challenged during cross-examination, but they are not serious enough to justify excluding the testimony.
Maki contended that Bey’s methodology is inadequate to determine the reasonableness of a job search. However, the Court held that Bey’s proffered testimony drew on her vocational counseling experience, described tangible steps an applicant could take to pursue employment, and offered an expected timeframe to gain a licensed position.
Maki asserted that Bey would inappropriately opine on legal matters if she testified as proffered that Maki’s job search was not a reasonable and diligent effort. As Maki’s cited authorities confirm, the reasonableness of a job search for purposes of mitigating damages is a fact question for the jury. Bey’s opinion embraces an ultimate issue with respect to damages, but this is consistent with the rules.
Peter McCullough
The Bank sought to exclude only “the narrow portion of McCullough’s opinion related to vaccine requirements and exemptions or accommodations to such requirements.”
McCullough would testify, for example, that “a position supporting or mandating COVID-19 vaccination goes against good medical practice and cannot be backed by ethical and prudent physicians, public health agencies, schools, or employers.” And again, “the COVID-19 vaccines have never been sufficiently protective against contracting COVID-19 to support their use beyond voluntary participation.” The Bank argued that these statements exceeded the boundaries of acceptable expert testimony in three ways: they are outside McCullough’s expertise; they constitute legal opinions; and they are irrelevant.
The parties disagreed about whether McCullough is qualified to testify regarding the appropriateness of employer responses to the COVID-19 pandemic.
McCullough may testify on the medical value of vaccines, and although the Bank disputes this testimony, it does not seek to exclude it. The Court admitted this testimony. However, when McCullough opined on how “prudent” employers should have responded, the Court held that he spoke beyond his expertise. This included his references to “ethical and prudent employers” and his statements that “[e]xemptions from vaccination saved lives and should have been granted for all applications” and “[n]o one should have received any pressure, coercion, or reprisal for requesting exemption from or declining COVID-19 vaccination.”
Held
- The Court granted in part and denied in part Rodney Maki’s motion to exclude the testimony of Frank Rhame and Jennifer Bey.
- The Court granted Federal Reserve Bank of Minneapolis’s motion to exclude the testimony of Peter McCullough.
Key Takeaway:
An expert must stay within his area of expertise when testifying. If the witness’ competence does not match the subject matter of the testimony, the Court must exclude the opinion.
Case Details:
| Case Caption: | Maki V. Federal Reserve Bank Of Minneapolis |
| Docket Number: | 0:22cv2887 |
| Court Name: | United States District Court, Minnesota |
| Order Date: | May 21, 2025 |
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