Expert Witness Profiler

Tag: Vaccination

  • 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
  • Infectious Disease Expert’s Statements on Employer Liability Excluded

    Infectious Disease Expert’s Statements on Employer Liability Excluded

    Plaintiffs, former employees of a local government public health agency, each filed suit against Rock Island County Health Department (“RICHD”) and Rock Island County, Illinois (“the County”) alleging that their previous employer, RICHD, violated Title VII of the Civil Rights Act of 1964.

    The purported violations stem from their employer’s failure to accommodate their religious beliefs, first, when it denied their exemptions from a COVID-19 vaccination requirement, and later when Plaintiffs were terminated for failing to get vaccinated.

    RICHD disclosed an expert witness, Dr. F. Ramzi Asfour. Asfour was asked to “provide his opinion concerning the proper approach of a public health entity to evaluating requests from employees to be exempted from” vaccination requirements and to provide epidemiological evidence related to vaccine efficacy compared to other mitigation methods.

    Plaintiffs filed the instant motion to bar Asfour, arguing that his opinion violated the standards of Federal Rules of Evidence 702 and 704.

    Infectious Disease Expert Witness

    F. Ramzi Asfour, MD, is board certified in Infectious Diseases and Internal Medicine, having attended a fellowship specializing in infectious
    diseases and having worked for the World Health Organization.

    His experience practicing medicine in the area of infectious diseases spans seventeen years, with over 72,000 patient encounters. Moreover, he has recent experience in consulting hospitals and other healthcare facilities on “policies, procedures and protocols relating to COVID-19.”

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

    Discussion by the Court

    Whether the Statements Fall Outside of Asfour’s Expertise

    Plaintiffs state that Asfour is a medical doctor with an expertise in public health who “is not qualified to render opinions regarding religion or religious exemptions.”

    The Court held that Asfour did not purport to opine about the sincerity of anyone’s religious beliefs. Instead, he highlighted various reasons that it was important from a public health perspective that healthcare workers be vaccinated, and based on those factors, opined that healthcare entities should carefully scrutinize requests for religious exemptions from COVID-19 vaccination requirements. Further, he opined that the scrutiny should be accomplished by identifying whether there was a “clear and specific doctrinal basis for objecti[ng]” to getting the vaccine. This is not a religious opinion, so Plaintiffs’ argument that Asfour should be barred from testifying that “religious exemptions should generally be denied unless there is a clear and specific doctrinal basis for objection” on the basis that it is outside his expertise is denied.

    Whether the Opinion Contains Legal Conclusions

    Asfour opined on how “employer liability” is affected by a potential COVID-19-
    related illness or death. And, while Plaintiffs do not take issue with
    this part of the opinion, Asfour recounts, verbatim, the definition of religion under Title VII.

    While allowing Asfour to opine as to the definition of religion under Title VII and interpret an employer’s liability related to COVID-19 illness or death would run the risk of confusing a jury with multiple presentations of the law, the Court held that Asfour’s statements also offer his perspective on public health matters and provide background for RICHD to make its arguments related to whether granting religious exemptions constituted an undue burden.

    Therefore, the Court will limit Asfour’s opinion as to his statement on employer liability related to COVID-19 illness or death, and the definition of religion under Title VII. Those are matters designated for the Court to instruct on; all other statements do not constitute legal conclusions.

    Whether the Opinion Meets the Standards of Reliability

    From what the Court can decipher from Plaintiffs’ motion, they did not challenge that the underlying data or methodologies used to formulate Asfour’s opinion were unreliable; however, they seemingly did contend that his opinion cannot meet the requirements under Rule 702(d).

    Asfour began his expert report by outlining “[a] meta-analysis with seven studies with 21,618,297 COVID-19 patients,” and explained how “unvaccinated patients were 2.46 times more likely to die from COVID-19.”

    He analyzed the drop in the death rate after the introduction of the vaccine, specifying how the weekly deaths in Rock Island County decreased from five to one from late 2021 to early 2022.

    Asfour then discussed how religious groups generally did not object to vaccinations from a public health standpoint.

    The Court held that Asfour’s application of data to the facts at hand did not run afoul of what was required under Rule 702(d).

    Whether the Opinion is Relevant

    Plaintiffs argued that much of Asfour’s opinion consisted of mere “facts which appear solely intended to justify the vaccine mandate itself which is not the issue for this jury.”

    However, the Court held that Asfour’s opinion will aid the factfinder by providing a better understanding of how the rates of infection during the COVID-19 pandemic changed based on the availability and use of the vaccine, which connects to the analysis of whether RICHD faced an undue burden in granting exemption requests.

    Plaintiffs next argue that the opinion is too vague due to Asfour’s use of words like “most,” “many,” and “generally.”

    Since RICHD has met its burden in establishing how the expert opinion will aid the finder of fact, the Court held that Asfour’s opinion is not too vague to provide this background.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to bar or exclude Defendant Rock Island County Health Department’s expert F. Ramzi Asfour.

    Key Takeaway:

    Asfour has over seventeen years of experience in treating infectious diseases and has recently shifted his career to consulting healthcare entities specifically on COVID-19 responses—expertise that he pulls from to formulate his opinion. Moreover, his expert opinion meets the relevant standards; he is qualified to opine on matters of public health, his methodology was reliable, and the testimony is relevant.

    However, Asfour cannot opine on the definition of religion under
    Title VII or employer liability related to COVID-19 illness or death.

    Case Details:

    Case Caption: Sanchez V. Rock Island County Health Department
    Docket Number: 4:23cv4007
    Court Name: United States District Court for the Central District of Illinois, Rock Island Division
    Order Date: May 12, 2025
  • Pediatrics Expert’s Opinion Regarding a Target 95% Vaccination Rate Met the Daubert Bar

    Pediatrics Expert’s Opinion Regarding a Target 95% Vaccination Rate Met the Daubert Bar

    On July 22, 2022, Dr. Gregory Fox, individually and as parent of C.F., and Rita Fox, individually and as parent of C.F. (jointly, the Plaintiffs), filed a lawsuit challenging the state of Maine’s public school vaccination requirements.

    Dr. Laura Blaisdell, a pediatrician with extensive qualifications in medicine and public health, was presented as an expert witness by Department of Education Commissioner Pender Makin. Fox’s challenge centered on Blaisdell’s opinion regarding a 95% vaccination rate target. He argued that her reliance on the R0 variable, which assumes a “totally susceptible” population, was unreliable and unsupported by scientific methodology when applied to the case’s specific facts. He claimed her assumption was erroneous because the population in question was only “partially susceptible”.

    Furthermore, Fox contested the scientific support for the 95% vaccination coverage goal, asserting that Blaisdell erred in inferring its necessity to protect susceptible individuals or halt disease transmission.

    Pediatrics Expert Witness

    Laura L. Blaisdell, MD, MPH, FAAP, CPE is a board-certified pediatrician, public health consultant, and researcher with expertise in vaccine hesitancy, infectious disease control, and camp medicine. She holds a Doctor of Medicine (MD) from the University of Minnesota Medical School and a Master of Public Health (MPH) from the University of Minnesota School of Public Health. She is also a Certified Physician Executive (CPE) and a Fellow of the American Academy of Pediatrics (FAAP).

    Blaisdell has served as an Attending Physician in the Department of Pediatrics at Maine Medical Center since 2008 and is an Assistant Professor at Tufts University School of Medicine. Her research and clinical work focus on vaccine decision-making, public health policy, and disease prevention in communal settings, particularly youth camps. She has been a key figure in vaccine advocacy and has contributed to legislative efforts to promote immunization policies.

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

    Discussion by the Court

    Commissioner Makin countered that Fox conflated herd immunity threshold rates with public health vaccination targets for schools. They argued that Blaisdell’s use of R0 was a generally accepted practice for determining herd immunity thresholds.

    Regarding the 95% target, the Commissioner emphasized that it was a public health goal, not a herd immunity threshold, aligning with targets set by the United States Centers for Disease Control and Prevention (U.S. CDC) and the Maine Center for Disease Control and Prevention (Maine CDC). Blaisdell, in her deposition, clarified the distinction, stating that the 95% figure represents a public health recommendation for school vaccination levels.

    Analysis

    The Court acknowledged that Blaisdell’s use of R0 to calculate herd immunity thresholds was supported by scientific literature, including articles cited by both parties. While the use of this methodology in other scientific literature is not conclusive, it did demonstrate a measure of acceptance within the scientific community.

    The Court ruled that Fox’s challenge regarding the “partially susceptible” population goes to the weight and credibility of Blaisdell’s testimony, not its admissibility. The Court also recognized the distinction between herd immunity thresholds and public health vaccination goals.

    Blaisdell’s reliance on sources like the CDC and state health reports, as well as her clear explanation during deposition, provided sufficient support for the 95% target as a public health goal. Moreover, Blaisdell sufficiently distinguished herd immunity threshold calculations from the public health goal of 95% vaccination coverage. Therefore, challenges to the weight and credibility of the 95% goal did not prevent the testimony from being admissible.

    Held

    The Court dismissed without prejudice Gregory Fox’s motion to partially exclude the testimony of Dr. Laura Blaisdell.

    Key Takeaway:

    This case highlights the importance of distinguishing between different types of scientific targets, such as herd immunity thresholds and public health goals. It also demonstrates the Court’s role in evaluating the reliability and relevance of expert testimony under the Daubert standard. The Court’s decision emphasizes that challenges to the factual underpinnings of expert opinions primarily affect their weight and credibility, not necessarily their admissibility.

    Case Details:

    Case Caption: Fox Et Al V. Makin Et Al
    Docket Number: 2:22cv251
    Court: United States District Court, Maine
    Order Date: March 10, 2025
  • Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    A district judge in California admitted the testimony of an industrial hygienist despite the legitimacy of her method being attacked.

    Plaintiffs, former employees of Defendant, Bay Area Rapid Transit District (“BART”) brought First Amendment, Title VII, and FEHA claims against BART after losing their jobs due to their refusal to comply with BART’s COVID-19 vaccine mandate. 

    BART disclosed, inter alia, the expert report of Nancy McClellan, an industrial hygienist. The McClellan report concluded, based on the above, that “BART worksites were moderate to high in their COVID-19 transmission risk, warranting a vaccine mandate [and the expectation of] 100% compliance,” and that “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct according to the classic hierarchy of controls.”

    Plaintiffs filed a Daubert motion seeking to exclude, or in the alternative limit, the testimony of McClellan.

    Industrial Hygiene Expert Witness

    Nancy McClellan holds a B.S. in Medical Technology from Michigan State University and a Master of Public Health with a focus on Industrial Hygiene from the University of Michigan. She has worked as an industrial hygienist for some 25 years and is certified by the American Board of Industrial Hygiene. She has served as the Chair of the American Industrial Hygiene Association, among other professional organizations, and currently serves on its Executive Board of Directors. McClellan has worked as an industrial hygiene consultant or testifying expert in several industries, including car manufacturing, pharmaceuticals, ordinance storage and testing, agriculture, and others. Expert McClellan has also worked on COVID-19. She provided guidance on controls for COVID-19 transmission in airports and other facilities, as well as the efficacy of air filtration systems on airplanes. 

    Discover more cases with Nancy McClellan as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    The Court held that the McClellan report was relevant to issues central to BART’s burden under both Title VII and FEHA. To meet its burden under Title VII, BART must show that accommodating unvaccinated employees would have imposed an undue hardship on BART.

    The McClellan report ultimately concluded that engineering controls, such as vaccination, constituted the best feasible controls during the pandemic and that, in light of her worksite risk assessment, “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct.”

    The Court also held the contents of both the McClellan report and the sources cited therein suggest that the methods underpinning McClellan’s analysis — namely the hierarchy of controls and worksite risk assessment — are common to the field of industrial hygiene. In other words, McClellan’s testimony was based on sufficient facts and data.

    McClellan is not an Expert in a Cognizable Field

    When Plaintiffs argued that McClellan is not an expert in a cognizable field: she is, instead, an “all-purpose expert” “market[ed] . . . in many divergent areas loosely categorized as industrial health,” the Court held that Plaintiffs’ characterization of McClellan’s experience omitted key details. McClellan had significant prior experience with COVID-19 and in any event, Plaintiffs’ assertion that industrial hygienists are so finely specialized as to require a “transit industrial hygienist” as opposed to an “ordinance testing industrial hygienist” was unsupported.

    The Legitimacy of McClellan’s Method was Questioned

    Plaintiffs attacked the legitimacy of McClellan’s method: ” McClellan claims that . . . the hierarchy of controls, is the same regardless of whether pickles are being made, bombs are being blown up, automotive parts [are] being made or pharmaceuticals [are] being manufactured. . . . This proves too much.”

    The Court held that the hierarchy of controls is “an ingrained part of OSHA’s regulatory framework” for air contaminants in the workplace, and has been codified in Title 29’s Occupational Safety and Health Standards. Henceforth, McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” is supported.

    McClellan Lacked Firsthand Knowledge

    Plaintiffs advanced a number of arguments attacking McClellan’s “lack of firsthand knowledge.” The Court held that an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Moreover, Plaintiffs’ suggestion that McClellan should have contacted each Individual Plaintiff prior to preparing her report cuts against the norms of expert practice.

    Held

    The Court denied Plaintiffs’ motion to exclude Defendant’s expert Nancy McClellan.

    Key Takeaway:

    When Plaintiffs contended that McClellan lacked expertise in COVID-19, vaccines, or transit agencies, the Court held that there is no requirement that an expert be a specialist in a given field.

    Also, the Court deemed McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” fully supported. According to the Court, Plaintiffs have identified various grounds for “vigorous cross-examination,” not exclusion.

    Case Details:

    Case Caption: Chavez Et Al V. San Francisco Bay Area Rapid Transit District
    Docket Number: 3:22cv6119
    Court: United States District Court, California Northern
    Order Date: June 21, 2024