Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).
This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).
While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.
Defendants filed a motion to exclude the expert opinion of Dr. Harvey Risch as well as those of Lisa Brock and John Cary.
Epidemiology Expert Witness
Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.
Human Resources Expert Witness
Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.
Vocational Rehabilitation Expert Witness
John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers.
Discussion by the Court
Harvey Risch
Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report.
In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.
Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.
Relevancy
To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”
The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.
Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees. Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”
Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.
Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”
Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.
Reliability
Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”
As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”
In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554.
The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.
Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.
Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount.
Lisa Brock
In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.”
Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”
The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place.
The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.
John Cary
On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025.
Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.
Held
The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.
Key Takeaway:
- The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
- Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.
Case Details:
| Case Caption: | Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al |
| Docket Number: | 3:23cv5077 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | May 13, 2025 |
