Expert Witness Profiler

Tag: Exempt

  • Epidemiology Expert’s Testimony Consisted of Unreliable Recitations of Scientific Studies

    Epidemiology Expert’s Testimony Consisted of Unreliable Recitations of Scientific Studies

    Plaintiff Leroy Jerome Richardson, III, a basketball referee, has sued his former employer, NBA Services Corp. and the National Basketball Association (together, the “NBA”) after his request for a religious exemption from its requirement that all NBA referees be vaccinated against COVID-19 during the 2021-22 season was denied. 

    The NBA filed a motion to exclude the testimony of the Plaintiff’s expert, Dr. Harvey Risch.

    Epidemiology Expert Witness

    Harvey A. 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.

    The majority of his career has focused on cancer and its causation. In May 2020, he published a paper on early treatment of high-risk COVID-19 outpatients. Since that time, he has co-authored other papers on COVID-19, which he describes as focusing on early outpatient management.

    Get the full story on challenges to Harvey Risch’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Risch believes that the spread of infection is inevitable and post-infection natural immunity is a public good. He believes that the pandemic should not have been managed by tracking infection but rather by tracking deaths, hospitalization, and the incidence of serious long-term syndromes caused by infection. Accordingly, he asserts, governments, businesses and schools should not have mandated vaccination to prevent the spread of infection.

    Insofar as the NBA is concerned, Risch observed that by December 2021, the NBA had added a booster dose requirement to its mandate. Nonetheless, NBA referees and players, almost all of whom were vaccinated, caught COVID-19 during the 2021-22 season. Risch concluded that, given the small number of NBA staff seeking a religious exemption, even if all had gotten COVID-19, the infection burden would have been less than the breakthrough infection burden among the vaccinated referees.

    Relevance

    The NBA argued that many of Risch’s opinions are irrelevant. According to the NBA, the issue for the jury will be whether it reasonably relied on health authority guidance for the 2021-22 season and has carried its burden to show that allowing exemptions to its vaccination policy would have imposed an undue hardship. Accordingly, the NBA sought to strike Risch’s disagreements with the advice given by government agencies regarding COVID-19 and the data presented by government health authorities. For instance, Risch took issue with whether the government data was accurate and argued that the government should have focused more on issues such as post-infection natural immunity or developed incentives for vaccination.

    Although Risch is offered as a witness on the issue of undue hardship, he did not offer any opinion on the negative impact that game postponement, rescheduling, and cancellation would have on the NBA and those involved in NBA games. Nor did he dispute that the Omicron variant of the COVID-19 virus was considered even more transmittable than prior variants. His disagreements with public health management of the pandemic are irrelevant to the particular issues that created hardship for the NBA and the reasonableness of the NBA’s reliance on its experts in 2021 and 2022.

    The NBA sought to strike as well those opinions which relied on studies published after the 2021-22 season as irrelevant to the NBA’s determination by December 2021 to insist that its referees be vaccinated.

    Although Risch indicated that he is relying on later studies only to confirm his opinion, without those later studies it is unclear whether Risch had any reliable basis in the fall of 2021 for a different opinion than the one offered by the NBA’s medical consultants. The Court held that citing those later studies would only create confusion at best.

    Legal Conclusion

    The NBA additionally sought to exclude Risch’s report to the extent it offered legal conclusions. As an example of such inadmissible testimony, the NBA pointed to Risch’s opinion that allowing Richardson to work without a vaccination did not constitute an undue hardship when measured against the Equal Employment Opportunity Commission (“EEOC”) guidelines.

    The NBA is correct that the Plaintiff’s expert cannot offer such opinions to the jury. In opposition to this motion, Richardson agreed that Risch cannot testify to the legal conclusions in his report.

    Reliability

    The NBA explained that Risch has rejected nearly all of the studies that were available during the 2021-22 season and has relied instead on a 2024 “pre-print” study — i.e., a study that is shared publicly but not peer-reviewed — to conclude that vaccinations were not as effective as they were believed to be through 2022.

    The NBA also contended that Risch has selectively pointed to passages in studies to reach conclusions different from what the authors of the study concluded, and has done so without an adequate explanation. 

    In opposing this motion, Richardson pointed to only three studies that he argued are relevant and provide appropriate support for Risch’s opinion: Madewell, Puhach and the pre-print Riemersma.

    While Madewell acknowledged that COVID-19 vaccines became less effective in reducing the spread of new variants, Risch distorted Madewell to cite it for the proposition that vaccines had “lost most of their ability” to suppress the spread of infection. Puhach was not published until March 2023 and therefore would not have been available to the NBA when it made its decision to no longer permit unvaccinated referees to work.

    Finally, Riemersma, according to Risch, indicated that those infected during the period in which the Delta variant was prominent, had “similar” viral loads whether or not they had been vaccinated. That is an accurate description of Riemersma. But this study, which was not peer reviewed, does not undercut the advice the NBA’s experts provided to it, much less the recommendations of the Centers for Disease Control and Prevention (“CDC”). It does not take issue with the data showing that vaccination reduced the risk of infection.

    In sum, the Court ruled that Risch’s opinions should also be excluded because they were not reliable.

    Rule 403

    Finally, the NBA argued that the report must also be stricken pursuant to Rule 403.

    Risch’s analysis created a substantial risk of confusing and misleading the factfinder. In deciding whether the NBA has carried its burden of showing that an accommodation of Richardson would have created an undue hardship, jurors must focus on what the relevant scientific community and the NBA understood of the COVID-19 virus and the efficacy of vaccines and testing in the 2021-22 season, particularly during the late fall of 2021.

    The Court held that Risch’s criticism of public health authorities’ recommendations in the midst of a pandemic, especially when based on a few hand-picked studies that post-date the period in which the NBA made its decision, has limited to no probative value.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of the Plaintiff’s expert, Dr. Harvey Risch.

    Key Takeaway:

    While cross-examination is an appropriate method for demonstrating the limitations in an expert’s analysis, before that analysis may be admitted at trial, its proponent must still show that it is sufficiently reliable to pass muster under Rule 702 and Daubert. This Richardson has not done.

    Admission of Risch’s testimony risks misleading and confusing the jury as to the relevant standard for determining undue hardship and the relevant evidence on which to base its verdict.

    Case Details:

    Case Caption: Richardson V. The National Basketball Association Et Al
    Docket Number: 1:23cv6926
    Court Name: United States District Court, New York Southern
    Order Date: August 18, 2025
  • Epidemiology Expert’s Opinion on Religious Objection to COVID-19 Vaccine Excluded

    Epidemiology Expert’s Opinion on Religious Objection to COVID-19 Vaccine Excluded

    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. 

    Want to know more about the challenges Pamela Acker has faced? Get the full details with our Challenge Study report. 

    Epidemiology Expert Witness

    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.

    Get the full story on challenges to Mark Roberts’ expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Plaintiff’s Witness Pamela Acker

    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.

    Case Details:

    Case Caption: McCormick V. Chicago Transit Authority
    Docket Number: 1:23cv1998
    Court Name: United States District Court, Illinois Northern
    Order Date: August 04, 2025