This lawsuit arises from the COVID-19 pandemic, and the City of Ann Arbor’s denial of religious exemptions to Plaintiffs, former City employees, from its mandatory COVID-19 vaccination policy. As the lawsuit currently stands, Plaintiffs Jennifer Alexa, Jeff Malone, and Tim Rugg alleged that the City of Ann Arbor (“City”) failed to accommodate their religious beliefs in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Michigan’s Elliott-Larsen Civil Rights Act.
The City sought to disqualify the expert report and testimony of Kyle C. McKenna, Ph.D., a biology professor and ocular immunologist, who Plaintiffs retained to discuss the development of the different COVID-19 vaccines, the role of fetal cells in the vaccines’ development and in other pharmaceutical research, and any ties between fetal cells and five over-the-counter (“OTC”) medication.
Biology Expert Witness
Kyle Christopher McKenna, Ph.D. is a professor of biology at the Franciscan University of Steubenville, with over twenty-five years of research experience in immunology, the study of the immune response.
McKenna intended to address the belief that COVID-19 vaccines were developed in the same fashion as these OTC medications with respect to the utilization of fetal cells. He then intended to discuss the reliance on an employee’s use of these OTC medications to assess whether the employee has a sincerely-held religious belief justifying the refusal to receive a COVID-19 vaccine.
The City, however, maintained that McKenna’s opinions exceeded his area of expertise and extended to theology, as he addresses religious beliefs concerning vaccination and OTC medications.
Analysis
Contrary to the City’s assertion, many of the opinions offered by McKenna did not exceed his knowledge, skill, experience, training, or education, by crossing over into theology. His explanation of how COVID-19 vaccines and OTC medications were developed, and his comparison of their development in connection with fetal cells, will be helpful to the jury in assessing whether Plaintiffs’ claimed religious beliefs precluded them from being vaccinated. However, McKenna goes further in his opinions when he discusses religious philosophy with regard to whether the use of fetal cells in the development of vaccines and OTC medications is sufficiently remote to permit an individual to be vaccinated or use those OTC medications.
McKenna is not trained in religious theory, and he expressly acknowledged that he is not a religious scholar. Aside from being able to share his own beliefs as a Catholic—which are irrelevant to this lawsuit, particularly as no Plaintiff is Catholic— McKenna lacked the qualifications to provide expert testimony on how Plaintiffs’ specific religious beliefs impact their view of the use of fetal cell lines in drug development. Even if McKenna professed to be a religious scholar, he did not interview Plaintiffs to gain an understanding of their specific religious views with respect to the issue. Moreover, he expressly acknowledged that different people have different religious approaches to the problem.
The Court held that McKenna may provide testimony regarding the development of vaccines and OTC medication, particularly the role of fetal cell lines in their development. However, he is precluded from testifying on how, from a religious perspective, that development impacts an individual’s willingness to be vaccinated or use the OTC medications.
Held
The Court granted in part and denied in part the City’s motion to disqualify Dr. Kyle McKenna.
Key Takeaway
The Court’s task in assessing reliability is not to decide whether the expert’s opinion is correct, but whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation. Further, rejection of expert testimony is the exception, rather than the rule.
Kevin McCormick has sued his former employer, the Chicago Transit Authority. During the COVID-19 pandemic, the CTA established a policy requiring its employees to be vaccinated against the virus. McCormick sought a religious-based exemption from the requirement. The CTA concluded that McCormick had not shown that his request for an exemption was actually religion-based and denied his request. When McCormick still declined to be vaccinated, the CTA terminated his employment. This lawsuit followed.
Both parties have named an expert to give opinion testimony at trial, and each has asked the Court to prevent the other’s expert from testifying.
Biology Expert Witness
Pamela Acker has an undergraduate degree in biology, earned in 2004, and while an undergraduate she was involved in genomics research on a particular topic for a year.
She pursued a master’s degree in biology at The Catholic University of America from 2010 through 2012 and was awarded that degree in 2012. During various periods while at Catholic University, Acker worked as a research assistant, a teaching assistant, and an adjunct instructor.
Acker taught high school biology for about six years and developed curricula for a homeschool co-op and for a Catholic homeschool organization for about three years.
Mark A. Roberts is an epidemiologist who has worked for a little over fifty years in public health, occupational medicine, and academia. He has a master’s degree in education; a master’s of public health in epidemiology and biostatistics; a doctorate in epidemiology and biostatics; and he is a medical doctor. Roberts served as the State Epidemiologist for the State of Oklahoma. He has published numerous articles, books, and other materials in the field of epidemiology, he has taught graduate-level courses; and has been qualified to render expert testimony in a number of court cases. In addition, since the outset of the COVID- 19 pandemic, Roberts has consulted with about two dozen companies, organizations, agencies, law firms, and others regarding responses to issues related to COVID-19.
Acker intended to render opinions that: (1) aborted fetal cell lines were used in the development of the COVID-19 vaccine, and provided a detailed description of how they were purportedly used; (2) McCormick, as a practicing Roman Catholic, had a legitimate religious-based objection to the vaccine due to the use of aborted fetal cell lines (along with a detailed description of why this is so); (3) contentions that other medications that McCormick uses or has used similarly involved use of aborted fetal cell lines are inaccurate, along with an explanation of why; (4) the COVID-19 vaccine causes physical harm to vaccinees, and the vaccine does not prevent infection; and (5) McCormick’s proposed alternative to vaccination—wearing a facemask and keeping a distance from others—was an adequate alternative.
The CTA contended that Acker’s opinions should be barred because she is not sufficiently qualified by education, training, or experience to give expert testimony on any of the points in question, and because her opinions regarding the religious legitimacy of McCormick’s beliefs will not assist the jury in determining any fact in issue.
Analysis
Acker is not qualified to render opinion testimony at a trial regarding the basis or legitimacy of McCormick’s claimed religious beliefs regarding the COVID-19 vaccine or vaccines generally. She does not identify any more training or expertise in the field of Catholic doctrine or theology than the average Catholic generally, or at least no more than the average person who attended a Catholic university and, perhaps, took the undergraduate theology courses typically required at such universities for persons not majoring in theology. The Court has no doubt that Acker has read a lot about Catholic teaching, including as it applies to vaccines, but that—even together with the rest of her background—does not give her any specialized knowledge within the meaning of Rule 702 that qualifies her to render opinions on these topics.
Qualifications aside, any opinion by Acker on the sincerity of McCormick’s religious beliefs or whether those beliefs actually motivated his objection to getting vaccinated would amount to an opinion regarding his state of mind, which is generally an inappropriate topic for “expert” or other opinion testimony.
On the particular topics regarding which she proposes to opine—how the COVID-19 vaccine is made; how other vaccines are made; the effectiveness and effect of the vaccine; and the adequacy of McCormick’s proposed alternative to vaccination—the record is sufficiently clear that Acker derives her claimed expertise (and, it appears, her opinions) simply from compiling and reading material produced by others.
Defendant’s Witness Mark Roberts
Roberts’ report stated that he has “reached the overarching opinion that there is no objective, scientific evidence supporting McCormick’s claim of a religious exemption from the [CTA’s] COVID-19 vaccination requirements for its employees.”
To begin with, McCormick did not challenge Roberts’ scientific or medical qualifications or expertise. The Court concluded that he is qualified to render opinion testimony in the fields in which he has worked and taught.
McCormick asserted a claim under Title VII for failure to accommodate his religious beliefs. To prevail, he must establish that: (1) he had a belief or practice that was religious in nature and conflicted with an employment requirement; (2) he called this belief or practice to the CTA’s attention; and (3) his religious belief or practice was the basis for his discharge.
If McCormick establishes these elements, then the burden shifts to the CTA to show that it could not accommodate McCormick’s religious belief or practice without undue hardship.
Analysis
Let us focus on Roberts’ broader opinion that “there is no objective, scientific evidence supporting McCormick’s claim of a religious exemption” to the vaccination requirement. As McCormick pointed out, religious beliefs or practices do not need to be supported by scientific or objective evidence. The Court agreed and ruled that Roberts may not offer this opinion at trial.
First, his testimony about the prevalence and community spread of COVID-19 during the relevant time period and the consistency of the CTA’s vaccination mandate with CDC and OSHA guidance was held to be relevant and admissible on the question of undue hardship. Second, the same is true regarding the safety risk posed by McCormick’s noncompliance with the vaccination mandate.
The Court also declined to exclude Roberts’ testimony regarding how and to what extent fetal cell lines were used in the development and testing of the vaccine. After all, the CTA is entitled to challenge McCormick’s contention that his opposition to getting vaccinated was not actually religious-based.
However, Roberts may not render opinions or conclusions regarding the “consistency” or inconsistency of McCormick’s views or practices. On that point, which essentially amounts to an inference or conclusion to be drawn from other evidence (including testimony that Roberts will render), Roberts has no specialized expertise that exceeds that of a jury.
Held
The Court granted the Defendant’s motion to bar Plaintiff’s expert witness Pamela Acker and partially granted but largely denied the Plaintiff’s motion to bar Defendant’s expert witness Dr. Mark A. Roberts.
Key Takeaway:
Given her biology background, Acker no doubt has a greater degree of understanding of these materials than the average person. But simply compiling, reading, and rendering opinions and conclusion reached by others who themselves may have the required specialized training or experience—which is all that Acker’s expert disclosure reflects she has done—does not qualify one to testify as an expert under Rule 702.
