SLATTERY v. MAIN LINE HEALTH, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SARA SLATTERY, CIVIL ACTION

Plaintiff,

v.

MAIN LINE HEALTH, INC., NO. 22-4994

MAIN LINE HEALTHCARE, INC., and

MAIN LINE HEALTH INTEGRATIVE

AND FUNCTIONAL MEDICINE

SERVICES,

Defendants.

MEMORANDUM

HODGE, J. March 25, 2025

Dr. Sara Slattery (“Plaintiff”) brings claims against Main Line Health, Inc., Main Line

Healthcare, Inc., and Main Line Health Integrative and Functional Medicine Services

(collectively, “Defendants”) alleging that she was denied a COVID-19 vaccination exemption

based on her sincerely held religious beliefs as an Evangelical Christian. Dr. Slattery brings claims

under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Pennsylvania Human

Relations Act (“PHRA”) for disparate treatment and for failure to accommodate based on her

religious views.

On December 15, 2022, Plaintiff Dr. Sara Slattery filed a Complaint against Defendants

Main Line Health, Inc., Main Line Healthcare, Inc., and Main Line Health Integrative and

Functional Medicine Services for employment discrimination. (ECF No. 1.) On January 29, 2024,

Defendants jointly filed a Motion to Exclude Plaintiff’s Expert Reports and Opinions (also known

as a Daubert Motion) and a Motion for Summary Judgment. (ECF Nos. 21 & 22.) Oral Argument

on the Motion for Summary Judgment was held on November 14, 2024.

In response to Defendants’ Motion for Summary Judgment (ECF No. 22), Plaintiff relies

heavily on the opinions of two experts: Dr. Peter McCullough and Dr. Akram Boutros. Dr.

McCullough was retained to opine on the reasonableness of Plaintiff’s belief system as based on

her understanding of COVID-19 and also to provide a rebuttal to the report of Dr. Daniel Salmon,

Defendants’ expert who provides an expert opinion on Defendants’ undue hardship defense. Dr.

Akram Boutros was also retained by Plaintiff and asked to write a rebuttal report addressing Dr.

Salmon’s conclusions on undue hardship.

For the following reasons, Defendants’ Motion to Exclude Plaintiff’s Expert Report and

Opinions is granted. The Court will not consider the Reports and Opinions of Dr. McCullough

and Dr. Boutros.

I. FACTUAL BACKGROUND1

Dr. Sara Slattery seeks to recover damages against Main Line Health, Inc., Main Line

Healthcare, Inc., and Main Line Health Integrative and Functional Medicine Services for refusal

to grant Plaintiff a religious exemption from its mandatory COVID-19 vaccination policy. (ECF

No. 1 at 2.)

Defendant corporations Main Line Health Integrative and Functional Medicine, Inc.

(“Integrative Medicine”) and Main Line Healthcare are under the operation and control of Main

Line Health, Inc. (ECF No. 1 ¶¶ 17, 18.) Plaintiff Sara Slattery is a physician, whose specialty is

in integrative and regenerative medicine, and was employed by Integrative Medicine beginning

on March 2, 2020. (ECF No. 1 ¶¶ 5, 20.) Plaintiff was initially employed as the Medical Director

of the Main Line Health Integrative and Functional Medicine Services Program, and Integrative

Health was the identified employer on her employment contract. (ECF No. 1 ¶¶ 16, 20.) The

1 The Court adopts the pagination supplied by the CM/ECF docketing system.

employment contract between Plaintiff and Integrative Medicine required Plaintiff to follow all

policies and procedures of Main Line Health, Inc.’s hospital medical staff. (ECF No. 1 ¶ 23.) The

employment contract was modified around September 24, 2020, to identify Main Line Healthcare

as Plaintiff’s employer and designated Plaintiff as Medical Director of the Dee Adams Center for

Integrative and Regenerative Medicine, effective January 1, 2021. (ECF No. 1 ¶¶ 25–26.)

In July 2021, Defendant Main Line Health, Inc. announced a mandatory COVID-19

vaccination requirement that required employees to be vaccinated by November 30, 2021 unless

they received a religious or medical exemption. (ECF No. 1 ¶ 29; ECF No. 22-1 at 9.)

Plaintiff is a practicing Evangelical Christian. (ECF No. 1 ¶ 15.) Plaintiff requested a

religious exemption from taking the COVID-19 vaccine on September 2, 2021, by submitting a

narrative statement and completing a required questionnaire from Main Line Health, Inc. (ECF

No. 1 ¶ 30.) Plaintiff stated the following in her narrative:

The Pfizer and Moderna mRNA vaccines and Janssen’s virus-delivered DNA

vaccine injects foreign genes into people. I believe this violates God’s intended

design for my makeup. The vaccines deliver foreign RNA or DNA to manipulate

human cells to generate “spike” proteins and then an immune response which lasts

until death, thereby permanently altering each person’s cellular makeup as created

by God. These vaccines are gene therapy products that change a person’s genetic

composition as created in the image of God. Other vaccines do not include gene

therapy. . . By taking a gene therapy product, I believe I would be distorting the

image of God. . . I believe the Covid-9 [sic] vaccines would alter my genetic

makeup and change God’s creation as intended. . . The Bible teaches that I am a

temple with the indwelling Holy Spirit. I think the genetically based vaccines defile

God’s temple. . .The technology used in these vaccines differs from all other

vaccines because they contain foreign genetic material that would directly coerce

my body into making foreign proteins, which other vaccines do not do. . . .

(ECF No. 1-3 at 12.) Plaintiff’s religious exemption request was reviewed by the Main Line

Health Religious Exemption Committee2 and denied on September 24, 2021. (ECF No. 1 ¶ 33;

2 The Religious Exemption Committee at Main Line Health consisted of a chaplain, doctors, and HR

professionals. (ECF No. 21, at 22.)

ECF No. 22-1 at 5.) The Committee stated as the basis for its decision that Plaintiff did not “state

a basis why [her] religious belief requires [her] to decline the COVID-19 vaccination.” (ECF No.

1 ¶ 33.) In response, Plaintiff submitted an appeal request on September 28, 2021, which did not

include additional information, only that she “stand[s] by [her] religious convictions” and that she

had COVID as of September 14, 2021, and had “recovered. [sic] with natural immunity.” (ECF

No. 1 ¶ 34.)

On October 8, 2021, Defendant Main Line Health, Inc. denied Plaintiff’s appeal for the

same stated reason as the initial denial. (ECF No. 1 ¶ 37.) Plaintiff subsequently received a letter

dated October 13, 2021 from Eric Mankin, President of Main Line Healthcare, informing Plaintiff

that she was in material default of her contract for her failure to receive the COVID-19 vaccination

and the only remedy available was to submit to vaccination. (ECF No. 1 ¶ 38.) Plaintiff submitted

an additional statement to the Religious Exemption Committee on October 17, 2021, that

summarized her religious beliefs based on Evangelical Christianity. (ECF No. 1 ¶ 39.)

On October 19, 2021, Plaintiff received a call from the Main Line Health President, John

J. Lynch, who informed her that no further appeal was available to her. (ECF No. 1 ¶ 40.) On

October 20, 2021, Plaintiff sent a letter to Mr. Lynch summarizing their phone call from the day

prior. (ECF No. 1 ¶ 41.) On October 21, 2021, Plaintiff received an email from Mr. Lynch stating

in part: “I am not involved in the exemption review process,” and that “it is my understanding

that your [October 17, 2021] late resubmission was in fact reviewed and given additional

consideration.” (ECF No. 1 ¶ 44.)

Main Line Health’s policy was to terminate employees who were not approved for an

exemption and who declined to receive the COVID-19 vaccine by November 1, 2021. (ECF No.

22-1 at 14.) During a phone call with Plaintiff, John Schwarz,3 Plaintiff’s direct supervisor, told

Plaintiff she was being discharged because her religious exemption request did not satisfy the

criteria of the Religious Exemption Committee. (ECF No. 1 ¶ 47.)

II. LEGAL STANDARD

Defendants move to exclude the expert reports and opinions of Dr. Peter McCullough and

Dr. Akram Boutros under Rule 702 of the Federal Rules of Evidence. Fed. R. Evid. 702. Rule

702 states:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if the

proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and

methods to the facts of the case.

Fed. R. Evid. 702.

As opposed to a lay witness, who may only provide testimony that results from a process

of reasoning familiar in everyday life, an expert witness may testify as to subjects that are

mastered by specialists in a particular field. Donlin v. Philips Lighting N. Am. Corp., 581 F.3d

73, 80–81 (3d Cir. 2009). The Court considers three main prongs in evaluating the admissibility

of an expert opinion: qualifications, reliability, and fit. Cohen v. Cohen, 125 F.4th 454, 460 (3d

Cir. 2025). The Court is tasked with engaging in a “rigorous gatekeeping function” to “ensure

3 John Schwarz’s full title is President of Bryn Mawr Hospital and President of its Integrative and Functional

Medicine Program. The Court notes that John Schwarz is alleged to be an agent of Defendant System. (ECF No.1 ¶

24.)

that 1) the expert is qualified; 2) the proposed testimony is reliable and concerns matter requiring

scientific, technical, or specialized knowledge; and 3) the expert’s testimony is sufficiently tied

to the facts of the case.” Id. (emphasis added) (citing Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 591 (1993)). The Court’s gatekeeping function is “necessarily flexible, granting district

courts latitude in deciding how these requirements are met.” Id. (emphasis in original) (internal

citations omitted).

A. Qualifications

In order to be deemed qualified, a proffered expert must possess the necessary skills,

knowledge, education, experience, and training to express an expert opinion. When evaluating

the qualifications of an expert, the court considers not only their skills, knowledge, education,

experience, or training in general but also whether their specific practice area is relevant to the

issues at hand. The qualifications requirement is “liberally interpreted and includes a broad range

of knowledge, skills, and training.” In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999) (citing In

re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)).

B. Reliability

The Court must ensure that an expert’s testimony is “based on the methods and procedures

of science, not on subjective belief and unsupported speculation.” Cohen, 125 F.4th at 461–62

(citing Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80–81 (3d Cir. 2017)) (internal

quotations omitted). The Court looks to whether the testimony is “supported by good grounds.”

Id., at 462 (citing UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825,

832 (3d Cir. 2020)). This inquiry applies to all aspects of an expert’s testimony: the methodology,

the facts underlying the expert’s opinion, and the link between the facts and conclusion. Id. (citing

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012)). There is no definitive

checklist in determining whether there are “good grounds” supporting an expert’s testimony,

however, there are several factors that a Court may consider in making this evaluation:

(1) whether a method consists of a testable hypothesis; (2) whether the method has

been subject to peer review; (3) the known or potential rate of error; (4) the

existence and maintenance of standards controlling the technique's operation; (5)

whether the method is generally accepted; (6) the relationship of the technique to

methods which have been established to be reliable; (7) the qualifications of the

expert witness testifying based on the methodology; and (8) the non-judicial uses

to which the method has been put.

UGI Sunbury, 949 F.3d at 834 (citing Pineda v. Ford Motor Co., 520 F.3d 237, 247–48 (3d Cir.

2008)). No single factor is dispositive; rather, the Court looks at the totality of the circumstances

in making a determination of reliability. Id.

C. Fit

An expert’s testimony satisfies the fitness prong if “it will help the trier of fact to

understand the evidence or to determine a fact in issue.” Cohen, 125 F.4th at 464 (quoting Fed.

R. Evid. 702). “Fit” is not always obvious, and scientific validity for one purpose is not necessarily

scientific validity for other, unrelated purposes. Id. This is essentially a relevance determination.

In short, an expert’s testimony will be excluded if the scientific knowledge presented is not

relevant to the determination of the facts in the present case. Id. Rule 401 provides that evidence

is relevant if it “(a) it has any tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid.

401.

III. DISCUSSION

A. Dr. Peter McCullough’s September 2023 Report

Dr. McCullough’s expert report was requested “following early depositions taken of the

Defendants’ agents.” (ECF No. 23-2, at 12.) Dr. McCullough was retained to opine on the

“reasonableness of [Plaintiff’s] belief system based upon her understanding of COVID-19.” (ECF

No. 23-2, at 12 (citing ECF No. 21-3, at 6–7).) Dr. McCullough primarily discusses the COVID-

19 vaccine and the science behind the vaccine, specifically whether the COVID-19 vaccine is a

“gene-therapy” product. (See generally ECF No. 21-3.) Dr. McCullough also discusses Plaintiff’s

belief system and the nature of the vaccine. (Id.)

i. Qualifications

In determining whether Dr. McCullough is a qualified expert, the Court must first turn to

the purpose for Dr. McCullough’s testimony. Dr. McCullough, in his own words, was “asked to

opine on whether [Dr. Slattery’s] religious beliefs demonstrated a valid belief system based upon

her understanding of Covid. [Dr. McCullough] was also asked to opine on whether these clinical

issues were of such gravity as to warrant the denial of religious exemption requests.” (ECF No.

21-3, at 6–7.)

Dr. McCullough is a medical doctor and a board-certified cardiologist and internist. (ECF

No. 21-4.) Dr. McCullough received his medical degree from the University of Texas

Southwestern Medical School with impressive ranks, holds a master’s degree in public health

with a specialty in Epidemiology from the University of Michigan, and has extensive training as

a cardiologist and in internal medicine. (ECF No. 21-4.) There is no doubt that Dr. McCullough

would be qualified to testify as to a field of medicine that he has experience and knowledge in,

such as internal medicine or cardiology, as it is well settled that the standard for an expert’s

specialized knowledge is interpreted liberally. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741

(3d Cir. 1994). However, even considering this liberal standard, Dr. McCullough is not qualified

to opine on religious matters.

The fact that the religious question at issue in Dr. Slattery’s case involves her views on

the mechanics of the COVID-19 vaccine does not transform the religious question into a scientific

one. Dr. McCullough, in discussing the purpose of his report, does not proffer that he will be

discussing medical issues. Dr. McCullough was tasked with offering opinions on whether Dr.

Slattery’s religious beliefs demonstrated a valid belief system in addition to discussing whether

the denial of her religious exemption request was warranted. (ECF No. 21-3, at 6–7.) In Dr.

McCullough’s conclusion he writes: “In summary, Dr. Slattery’s sincerely held religious beliefs

reflected her beliefs founded upon Christianity.” (ECF No. 21-3, at 38.) Dr. McCullough

discusses “Christian religious beliefs” and scripture in his report. (See ECF No. 21-3, at 13.) He

also concludes that “[a]ny religious belief that incorporates this fact [that vaccines are gene

therapy] cannot be validly based on ‘bad science’ nor does this fact negative [sic] the spirituality

of being created in the image of one’s Deity.” (ECF No. 21-3, at 15.) None of these statements

are scientific in nature.

Plaintiff has consistently admitted that this case is one about religion, not science. During

oral argument on the pending Motion for Summary Judgment, Plaintiff’s counsel stated that

“[t]his case is not about the safety of the vaccine. It’s not about the efficacy of the vaccine. Again,

it’s a religious exemption request that Dr. Slattery made based upon her sincerely held religious

beliefs.” (ECF No. 30, 32:13–22.) Plaintiff even criticized Defendants for “spen[ding] a lot of

time talking about science,” when “[t]he thing this case really comes down to [is] a Christian’s

request for a religious exemption from taking the COVID vaccine.” (ECF No. 30, 32:13–17.)

Plaintiff has made clear that the present case is about religion, not science. This is further

evidenced by Plaintiff arguing that “the science is irrelevant.” (ECF No. 30, 34:9–10.)4 Therefore,

4 The Court acknowledges that the full quotation in the transcript is: “the science is irrelevant until the point

the defense tries to use it to argue that it is relevant.” (ECF No. 30, 34:9–11.) However, the discussion at present is

the Court does not see how a medical doctor is qualified to discuss the religious beliefs of Dr.

Slattery. With all due respect to Dr. McCullough and his knowledge, training and experience as

a medical doctor, Dr. McCullough is not an expert in religion. Nowhere in his Curriculum Vitae

(“CV”), nor his report, does he include any qualifications related to religion. Thus, while the court

is given the latitude and discretion based on precedent, the totality of the circumstances do not

support Dr. McCullough’s report and opinion as being fit for this case determination. Dr.

McCullough is not qualified to testify as to religious beliefs or belief systems and, therefore, the

Court will grant the Daubert motion as to those conclusions due to Dr. McCullough’s inadequate

qualifications. Dr. McCullough’s testimony is excluded under the qualification prong of

Daubert.5

one of Dr. McCullough’s expert reports, not any rebuttal report to Defense’s experts. The Court will consider the

rebuttal report separately.

5 The Court finds it appropriate to mention at this juncture that the parties have extensively argued issues of

whether the COVID vaccine is “gene therapy” or about “asymptomatic spread” or about “herd immunity” or “anti-

vaccination.” This case is not about the science underlying the COVID-19 vaccine (though to the extent the actual

science is relevant, the Court relies on the research of qualified infectious disease experts, public health officials, and

immunologists). This case is about whether Dr. Slattery had religious beliefs, whether she sincerely held those

religious beliefs, and whether she was disciplined for her failure to comply with a conflicting requirement. Gray v.

Main Line Hosp., Inc., 717 F. Supp. 3d. 437, 445–46 (E.D. Pa. 2024) (discussing the elements necessary to establish

a prima facie case of a failure to accommodate claim based on religious views) (citing EEOC v. GEO Grp., Inc., 616

F.3d 265, 271 (3d Cir. 2010)). In fact, much of this case has been agreed upon: that Dr. Slattery did have sincerely

held beliefs, that she informed her employer of the conflict between her views and the requirement to take the

COVID-19 vaccine, and that she was disciplined for doing so. The only things in contention in this case are whether

Dr. Slattery’s beliefs were religious in nature (as opposed to scientific) and whether it would have been an undue

hardship for the Defendants to accommodate her religious beliefs. There are also disparate treatment claims that do

not hinge on expert testimony. The accuracy of the science behind Dr. Slattery’s belief is not relevant for the purposes

of evaluating Dr. Slattery’s religious beliefs.

It does not matter, in evaluating whether Dr. Slattery was discriminated against, whether or not her beliefs

about COVID being a product of gene-therapy are true. In the same way, the Court is not tasked with deciding

whether the beliefs that inform Dr. Slattery’s identity as an evangelical Christian are “true.” Defendants’ argument,

in regard to Plaintiff’s prima facie case, is that Dr. Slattery held scientific views, and not religious ones because

scientific views are not protected under Title VII. This question, of whether Dr. Slattery held religious versus

scientific views, does not hinge on whether the information underlying the views is accurate or not. As the Court has

recognized before, Plaintiff has admitted that the “science is irrelevant.” The Court agrees.

B. Dr. Peter McCullough’s Rebuttal Report

The Court will now address Defendants’ argument that Dr. Peter McCullough’s rebuttal

report should be excluded. Dr. McCullough’s rebuttal report primarily responds to Defendants’

expert Dr. Daniel Salmon, who was retained by Defendants to provide an expert report on

Defendants’ undue hardship defense.6 (ECF No. 21, at 15–16.) Dr. Salmon made the following

conclusions:

In September 2021, COVID-19 was a substantial threat to staff and patients in

health care institutions. Health care staff were disproportionately impacted by

COVID-19 and patients in health care settings were at increased risk of serious

disease and death because of underlying health conditions and/or age.

Consequently, health care personnel were the first priority for vaccination by the

ACIP and CDC when vaccine supplies were limited. There were three vaccines

approved for use at the time, and they had been shown to be very safe and effective

at preventing diseases, reducing transmission of disease, and serious consequences

from COVID-19 including death. Consequently, unvaccinated persons in health

care settings were at greater risk of COVID-19 themselves, and also posed risk to

others they came into contact with. While many health care workers had already

been infected at this time, natural immunity was poorly understood and not a

substitute for vaccination. Mandatory COVID-19 vaccine policies were necessary

in health care settings given the need for extremely high vaccine coverage

necessary in health care settings and inadequate vaccine coverage that could be

accomplished through education and access to free vaccine. The small number of

persons with valid medical contraindications to vaccination must be given medical

exemptions to mandatory policies. Health care institutions often also allowed

religious exemptions for persons with sincerely held religious beliefs against

vaccination. However, these health care institutions needed to limit exemptions to

those persons with sincerely held religious beliefs that precluded vaccination in

order to protect their staff and patients. Easily granting religious exemptions to all

persons who requested them, including those without sincerely held religious

beliefs precluding vaccination, would have undermined the vaccine requirement

leading to substantial disease, disability and death among health care staff and

patients.

(ECF No. 21-5, at 50.) Dr. McCullough, in his rebuttal report, primarily responds to the expert

report of Dr. Salmon, directly rebutting several of Dr. Salmons conclusions. Dr. McCullough

6 Dr. McCullough also responds to the hybrid disclosures of Dr. Jonathan Stallkamp and Dr. Brett Gilbert,

experts for the Defense, although the vast majority of Dr. McCullough’s report is focused on Dr. Salmon’s

conclusions.

states that “Dr. Salmon asserts several misleading and inaccurate comments in his summary.”

(ECF No. 21-6, at 49.) Dr. McCullough specifically asserts the following:

Robust evidence showed that SARS-CoV-2 was mostly likely to spread at

home. Further, spread was driven primarily by symptomatic people. It was also

widely known that vaccinated people were indeed unwittingly spreading the virus.

. . . It is not accurate to say that the vaccines were very safe. Safety concerns were

beginning to emerge and were widely documented. In addition, efficacy greatly

reduced by the three month mark. Interestingly, the FAQ document that Main Line

Health published claimed that mRNA vaccines have a long history of safety despite

not a single one being FDa [sic] approved for marketing at the time it was

published. . . . There is no evidence that unvaccinated persons posed any greater

risk than vaccinated persons. . . . Natural immunity was already shown to be

effective against preventing future disease and was a completely logical and

scientifically justified substitute for vaccination. . . . There is no objective way to

[limit vaccine exemptions to those persons with sincerely held religious beliefs that

precluded vaccination] and therefore Main Line Health created subjective tests

based upon its indefensible science positions. . . . If MLH had granted religious

exemptions to every single person who applied for exemption, MLH could have still

achieved extremely high vaccination levels. Religious exemptions were requested

by less than 1% of all MLH staff. This would not have undermined the vaccine

requirement, nor led to substantial disease, disability, and death.

(ECF No. 21-6, at 49–50 (emphasis in original).)

i. Qualifications

The Court will address Dr. McCullough’s qualifications in relation to the conclusions

made in the rebuttal report. Dr. McCullough is a board-certified Internist and Cardiologist. (ECF

No. 21-4.) He has received a master’s degree in public health (with a focus on epidemiology).

(Id.) However, prior to the COVID-19 pandemic, his practice was entirely internal medicine. (Id.)

The Court questions, and is therefore not convinced of, Dr. McCullough’s qualifications to opine

on COVID-19. Not only has Dr. McCullough never practiced in the field of epidemiology, (See

ECF No. 21-4), but his presence in this field did not begin until the COVID-19 pandemic began

in early 2020. The Court is unwilling to certify an expert on a relatively novel virus when they

have had no previous experience with epidemiology, immunology, or infectious disease.

This Court is not alone in being skeptical about Dr. McCullough. A District Court in

Nebraska wrote that “[n]ot only is it doubtful that Dr. McCullough’s credentials demonstrate that

he is an expert on COVID-19, Dr. McCullough makes several claims that are outside the

conclusions of the mainstream of the vast scientific studies of the COVID-19 virus and COVID-

19 vaccination.” See Roth v. Austin, 603 F. Supp. 3d 741, 774 (D. Neb. 2022). That Court further

concluded that “Dr. McCullough is hardly a ‘real expert’ in the field.” Id. The District Court for

the District of Columbia further discussed the problematic nature of Dr. McCullough’s testimony,

noting that “a battery of medical authorities contest Dr. McCullough’s positions.” Navy SEAL 1

v. Austin, 600 F. Supp. 3d 1, 16 (D. D.C. 2022) (abrogated on other grounds). Additionally, a fact

and concern that has been noted by a fellow District Court, Dr. McCullough has previously had

a preliminary injunction issued against him for making false statements, specifically claiming that

he was affiliated with Baylor University after he was fired for spreading medical, COVID-related

misinformation. Id. (citing Order at 2, Baylor Scott & White Health v. McCullough, No. DC-21-

09699 (Tex. 191st Dist. July 29, 2021)).7 These comments by other courts do not only implicate

Dr. McCullough’s qualifications but also have an impact on the reliability of his testimony, which

will be discussed later. 8 At this juncture, the Court concludes that Dr. McCullough is not qualified

to give opinions related to COVID-19, the COVID-19 vaccine, or the public health response to

COVID-19, and will strike his rebuttal report from the record.

7 The Court recognizes that these courts did not evaluate Dr. McCullough within the context of a Daubert

motion. However, the Court notes the decisions and comments on Dr. McCullough that other district courts have

made about Dr. McCullough’s qualifications to opine on the COVID-19 pandemic are relevant and noteworthy.

8 While the Court has already determined that Dr. McCullough is not qualified to provide a rebuttal report in

this case, the Court will nonetheless address the reliability of his methods. Qualifications and reliability are not

completely separate discussions, however, because an expert’s “level of expertise may affect the reliability of the

expert’s opinion.” Main St. Mortg., Inc. v. Main St. Bancorp., Inc., 158 F. Supp. 2d 510, 513 (E.D. Pa. 2001) (citing

Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)).

ii. Reliability

As the Defense has stated, Dr. Salmon’s report was made with the purpose of addressing

Defendants’ undue hardship defense to a failure to accommodate claim. Dr. McCullough takes

issue with many of Dr. Salmon’s conclusions as seen above. See supra Section B. Dr.

McCullough responds by offering opinions about asymptomatic transmission, natural immunity,

the dangers of the COVID-19 vaccine for individuals who have already had COVID, and other

anti-vaccine sentiments. The Court will address the reliability of his opinions within the context

of factors enumerated by the Supreme Court in Daubert and the Third Circuit in UGI Sunbury.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); UGI Sunbury LLC v. A

Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir. 2020).

The Court will first address Dr. McCullough’s conclusions on asymptomatic transmission

in health care facilities. He concludes that “[a]symptomatic transmission was not common.” (ECF

No. 21-6, at 3.) Dr. McCullough further makes the conclusory statement that “asymptomatic

spread [of COVID] is trivial and inconsequential.” (Id.) Instead of providing an academic study

to support his conclusions on asymptomatic spread, Dr. McCullough cites to an article saying

“[a]t least 74% of Covid cases occurred in fully vaccinated persons, resulting in transmission

from vaccinated individuals.” (Id.) This article does not address asymptomatic spread and when

asymptomatic spread is mentioned, the article states that “asymptomatic breakthrough infections

might be underrepresented because of detection bias.”

https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm. Furthermore, Dr. McCullough cites

to an article published in the Journal of the American Medical Association (“JAMA”) stating

asymptomatic spread was “negligible at 0.7%.” (ECF No. 21-6, at 3 (citing

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2774102).) Not only does the

article cited not use the word “negligible,” the article explicitly discusses household transmissions

and not transmissions in health care facilities, which is the header of this portion of Dr.

McCullough’s report. (ECF No. 21-6, at 3 (“How did asymptomatic transmission impact the

spread of COVID-19 in health care facilities?”).) Dr. McCullough next attempts to cite articles

discussing asymptomatic transmission but those studies were from China, Germany, and parts of

South Asia. (ECF No. 21-6.) None of those studies make any conclusions on asymptomatic

transmission in the United States, nor in health care facilities, which was the focus of Dr.

Salmon’s conclusions.

Dr. McCullough also makes the grand statement that “there was less viral spread in the

health care setting than many other places, including at home because of universal precautions

and masking efforts.” (ECF No. 21-6, at 7.) Dr. McCullough does not support that proposition

with a citation, nor does he support his further contention that “[e]mployees and patients were

more likely to get Covid at home than at a MLH [Main Line Health] office where the staff could

be testing daily and taking precautionary measures.” (Id. (emphasis added)) Dr. McCullough

continues on to discuss Main Line Health, specifically, without any discussion as to how this

conclusion would apply to Main Line Health. Furthermore, Dr. McCullough chooses to cite news

networks such as “ABC” and “CNN” to support his conclusions without explaining how they are

reliable. (ECF No. 21-6, at 7.) Dr. McCullough cites scientific articles with numerous deficiencies

and limitations despite those articles’ authors acknowledging these limitations, however and

notably, Dr. McCullough fails to do the same in his report. Instead, he takes them as absolute fact,

ignoring the limitations of the studies that he cites.

Dr. McCullough makes several claims about the efficacy of the COVID-19 vaccine. (ECF

No. 21-6, at 49.) These allegations explicitly contradict statements about the vaccine made by the

Centers for Disease Control and Prevention (“CDC”).9 In addition, Dr. McCullough blatantly

states false facts in support of his conclusion. Dr. McCullough claims without support that “[t]here

has been no study demonstrating clinical benefit with COVID-19 vaccination in those who have

had well documented or even suspected prior COVID-19 illness.” (ECF No. 21-6, at 23.) Dr. Eric

Feigl-Ding, one of Defendants’ experts, explicitly rebuts this statement, citing a 2022 study which

states that “[a] single dose of vaccine after infection reinforced protection against reinfection.”

(ECF No. 21-9, at 6 (citing https://www.nejm.org/doi/full/10.1056/NEJMoa2118946).) In the

face of such balanced, tested and fact-based contradictions to Dr. McCullough’s statements, the

Court cannot reliably trust the information proffered by Dr. McCullough, because he has blatantly

misrepresented the studies available, as apparent by even a cursory review of the sources cited by

him. The Court must exercise its gatekeeping function to prevent a fact finder from hearing

blatantly wrong and unreliable statements of purported science.

At this stage, it is clear that Dr. McCullough uses limited, and unreliable, sources to

support his propositions. In addition to making factually inaccurate statements, Dr. McCullough

fails to even suggest that his sources are legitimate. He does not actually provide any unique

methodology, does not discuss whether the studies he cites have been subject to peer review, does

not discuss error rates of the studies, and does not discuss the general acceptance of any

9 The CDC has consistently stated that vaccines are safe and effective to use. The Court takes judicial notice, notes,

and incorporates, the CDC information available at https://www.cdc.gov/covid/vaccines/benefits.html into its

Opinion. Specifically, the CDC states that “Getting vaccinated against COVID-19 has many benefits that are

supported by scientific studies. The COVID-19 vaccine helps protected you from severe illness, hospitalization, and

death.” https://www.cdc.gov/covid/vaccines/benefits.html. The CDC advises that the COVID-19 vaccine reduces an

individual’s risk of getting a critical illness, being hospitalized, having to go to the hospital, and for long COVID. Id.

Furthermore, the CDC states that “COVID-19 vaccines underwent the most intensive safety analysis in U.S. History.”

Id. “The FDA has determined COVID-19 vaccines meet FDA’s safety and efficacy standards.”

https://www.cdc.gov/covid/vaccines/faq.html. Importantly, the CDC states “COVID-19 vaccines do not alter DNA.”

https://www.cdc.gov/covid/vaccines/myths-facts.html (emphasis added). Courts have routinely relied on CDC

recommendations in their decisions. See Doe 1 v. Perkiomen Valley Sch. Dist., 585 F. Supp. 3d 668, 689–90 (E.D.

Pa. 2022); Messina v. Coll. of N.J., 566 F. Supp. 3d 236, 248 (D. N.J. 2021); Valdez v. Lujan Grisham, 2022 WL

3577112, at *12–13 (D. N.M. 2022.); Mays v. Dart, 974 F.3d 810, 823 (7th Cir. 2020); Norris v. Stanley, 2022 WL

557306, at *5 (W.D. Mich. Feb. 22, 2022).

methodology. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir. 1994) (requiring a judge

at the district court level to engage in a “preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid”) (citing Daubert v. Merrell Dow

Pharms., 509 U.S. 579 (1993)). Dr. McCullough’s expert report is simply a resuscitation of a few

hand-picked articles which are contrary to CDC and FDA guidance available at the time in

question. Dr. McCullough repeatedly makes grand and conclusory assertions that are unsupported

by studies or are outright incorrect. The Court reminds the Plaintiff that it is their burden to

demonstrate that Dr. McCullough meets the Daubert criteria. Bardo v. Norfolk S. Ry. Co., 459 F.

Supp. 3d 618, 624 (M.D. Pa. 2020) (“The proponent of the expert ‘bears the burden of establishing

the reliability and admissibility of the expert’s testimony.’”) (quoting Burke v. TransAm Trucking,

Inc., 617 F. Supp. 2d 327, 330–31 (M.D. Pa. 2009)). It is not the Court’s job to search for the

reliability of his methods through piecemeal articles cited to support conclusions that veer far

from main-stream science and, more importantly, that veer far from the guidance available to

Defendants at the time of their decision to terminate Plaintiff. Plaintiff has failed to meet its

burden. The Court concludes that Dr. McCullough’s rebuttal report is based on unreliable

principles, methods, and information and, therefore, must be excluded.

C. Dr. Akram Boutros’s Rebuttal Report

Dr. Akram Boutros, like Dr. McCullough, was asked by the Plaintiff to provide a rebuttal

report addressing Dr. Salmon’s conclusions.10 Dr. Boutros makes the following conclusions to

rebut Dr. Salmon’s report:

I am unconvinced that . . . the need for robust Policy mandate causes

operational hardships imposed by exemptions and alternatives to vaccination. To

the contrary, not providing medical and religious exemptions to the COVID-19

10 Like Dr. McCullough, Dr. Boutros also responds to the hybrid disclosures of Dr. Jonathan Stallkamp and Dr. Brett

Gilbert, experts for the Defense, although the vast majority of Dr. Boutros’s report is focused on Dr. Salmon’s

conclusions.

vaccination mandate increases the risk to the community by reducing the number

of healthcare professionals available to care for a community in need. . . . [Dr.

Stallkamp’s] view that “any exemptions to the Policy mandate gave rise to

significant (more than de minimis) operational hardships,” is not what responsible

and reasonable healthcare executives hold as factual. . . . Religious beliefs are hard

for businesses to evaluate because no individual, panel of experts, or institution can

create a litmus test for what is in someone’s heart or head. Consequently, most

healthcare opted for processes that were fairly communicated, and universally

applied to provide the exemptions. In addition, COVID-19 vaccinated staff were

still being infected and reducing the number of professional staff to care for the

surge of patients. Staff that were provided medical and religious exemptions

effectively utilized the same alternative control measures (social distancing,

handwashing, and masking) to control spread of COVID-19. Finally, institutions

that allowed a larger number of exemptions did not experience larger number of

staff or community infections.

(ECF No. 21-7, at 13–14.)

i. Reliability

An expert must employ in the courtroom the “same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137, 152 (1999). “It would be unacceptable to cite no sources for statistical evidence in

a scholarly work, and it is likewise unacceptable in an expert disclosure.” Erickson v. Baxter

Healthcare, Inc., 131 F. Supp. 2d 995, 1000 (N.D. Ill. 2001); Korbe v. Doug Andrus Distrib.,

LLC, 2024 WL 2702149, at *4 (D. Colo. 2024).

Dr. Boutros makes many claims in his expert report. However, not one of these claims,

aside from citations relating to Dr. Slattery’s exemption request, Dr. Salmon’s report, hybrid

witness disclosures, the EEOC compliance manual, and the Center for Medicare and Medicaid

Services Rules, is supported by any citations or sources. Dr. Boutros only cites documents

intrinsic to the case and provides no external sources of medical information or any methodology

in evaluating the intrinsic sources that would support an expert opinion. Dr. Boutros does not

introduce any testimony relating to any method, the reliability of that method, any error rate,

standards of control, whether the method is generally accepted, relationship of technique to that

method, and uses of that method. See UGI Sunbury LLC v. A Permanent Easement for 1.7575

Acres, 949 F.3d 825, 832 (3d Cir. 2020). Dr. Boutros simply states that his “professional judgment

in these areas is based upon a review of current scientific evidence and current information

available of the impact of religious exemptions and masking on the spread of COVID-19.” (ECF

No. 21-7, at 7.) This is not sufficient for if it were, anyone could read similar sources, fashion an

opinion and purport their expertise.

Dr. Boutros makes numerous conclusory claims without support for any of his

propositions. For example, Dr. Boutros claims that “the overwhelming majority of COVID-19

cases in patients and staff in healthcare facilities were a result of community transmission.” (ECF

No. 21-7, at 8.) However, Dr. Boutros provides no support for this proposition. He also claims

that “[e]xemptions from mandatory vaccination policy have not been found to undermine

healthcare institutions’ ability to inhibit the spread of a serious communication disease.” (ECF

No. 21-7, at 11.) Dr. Boutros cites no support for this proposition either. These are but two

examples of many that demonstrate Dr. Boutros’ failure to provide support for his claims. The

Court cannot in good faith simply accept Dr. Boutros’s claims as true, without him providing any

information on the reliability of this information. Dr. Boutros has failed to meet the Daubert

standard for reliability and his conclusions in his rebuttal report will be excluded. Because of his

failure to meet the reliability prong of Daubert, there is no need to evaluate his qualifications or

fitness.

D. CONCLUSION

For the reasons stated above, the Court will grant Defendants’ Motion to Exclude

Plaintiff’s Expert Testimony. The expert reports of Dr. Peter McCullough and Dr. Akram Boutros

will be excluded in their entirety.

BY THE COURT:

/s/ Hon. Kelley B. Hodge

HODGE, KELLEY B., J.