Expert Witness Profiler

Tag: Religious Belief

  • Biology Expert Was Not Allowed to Opine on Religious Philosophy

    Biology Expert Was Not Allowed to Opine on Religious Philosophy

    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.

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

    Discussion by the Court

    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.

    Case Details:

    Case Caption: Alexa V. City of Ann Arbor
    Docket Number: 2:22cv13073
    Court Name: United States District Court, Michigan Eastern
    Order Date: March 18, 2026

  • Expert Reliably Applied Vocational Counseling Experience to the Facts

    Expert Reliably Applied Vocational Counseling Experience to the Facts

    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.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Frank Rhame’s expert testimony.

    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.

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

    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.

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

    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
  • 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