The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WANDA BRANDON et al., )
)
Plaintiffs, )
)
v. ) Case No. 4:22-cv-00635-SRC
)
BOARD OF EDUCATION OF THE )
CITY OF ST. LOUIS et al., )
)
Defendants. )
)
Order
The Court “has the inherent power to reconsider and modify an interlocutory order any
time prior to the entry of judgment.” K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1017
(8th Cir. 2007) (quoting Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066,
1070 (8th Cir. 1995)). In light of intervening Eighth Circuit precedent, the Court questions the
viability of part of its prior holding regarding the admissibility of certain expert testimony, so the
Court orders the parties to brief the issue as described below.
The Court previously held that the Board of Education of the City of St. Louis’s expert
witness, Dr. Daniel Salmon, may not render “opinions about stem cells and stem cells’
connection to COVID-19 vaccines.” Doc. 229 at 11 (The Court cites to page numbers as
assigned by CM/ECF.). The Court reasoned:
Plaintiffs alleged in their complaint that their “religious beliefs prevented them
from receiving the vaccination due to their use of fetal stem cells taken from aborted
fetuses.” But once again, Dr. Salmon admitted that he didn’t know anything about
Plaintiffs, and it follows that Dr. Salmon does not (and cannot) opine on the extent
to which the stem-cell issue influenced Plaintiffs’ objections to COVID-19
vaccination. Objective facts about the vaccines’ connections to stem cells have no
bearing on whether Plaintiffs objected to vaccination based on their religious
beliefs, which “need not be acceptable, logical, consistent, or comprehensible to
others” to merit protection under the law.
Id. (citations omitted).
But in Kale v. Aero Simulation, Inc., No. 23-3380, 2025 WL 1585297 (8th Cir. June 5,
2025), the Eighth Circuit indicated that objective facts about employment requirements might
have some relevance to a plaintiff’s religious-discrimination claims. The Court summarized
Kale at length in a prior order. See doc. 308 at 1–2. The Eighth Circuit affirmed the dismissal of
Matthew Kale’s complaint, in part, because Kale failed to make sufficient “factual allegations
about the nature of the Covid-19 test” that his employer tried to make him take. Kale, 2025 WL
1585297, at *3. In other words, Kale’s general allegation that a COVID-19 test would cause an
“unwanted intrustion[] into [his] body” did not suffice—Kale needed explain how the test would
“intrude[] into Kale’s body in violation of his alleged religious beliefs.” Id. That explanation
seems to require consideration of some objective information about the test. And, although Kale
affirmed the grant of a motion to dismiss, the elements that a plaintiff must plead to survive a
motion to dismiss have a direct relationship to the elements that a plaintiff must prove to prevail
at trial. See Fed. R. Civ. P. 8(a)(2) (providing that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
Here, the parties agree that, for Plaintiffs to prevail on their Title VII claims, they must
prove that their sincerely held religious beliefs “conflicted with an employment requirement.”
Doc. 284; doc. 204 at 11 (noting that the parties do not object to this element). Kale reiterates
that that element applies to Plaintiffs’ Free Exercise claims, too. See Kale, 2025 WL 1585297, at
*1 (“For each religious discrimination claim—Title VII, RFRA, and First Amendment—Kale
must plausibly allege a bona fide religious belief that was burdened by an employment
requirement.”). And as explained above, Kale seems to suggest that, to assess whether an
employment requirement and a sincerely held religious belief conflict, a court must consider not
only the “specific religious beliefs” at issue but also the objective reality of the employment
requirement. /d. at *3. In light of all this, the Court questions whether its prior holding
excluding Dr. Salmon’s opinions about stem cells and stem cells’ connection to COVID-19
vaccines can survive Kale.
Accordingly, the Court orders the parties to file, no later than noon on June 10, 2025,
supplemental briefs on whether the Court should reconsider its holding excluding Dr. Salmon’s
opinions about stem cells and stem cells’ connection to COVID-19 vaccines. Each party’s brief
must not exceed five double-spaced pages, exclusive of a signature page and attachments.
So ordered this 6th day of June 2025.
str. Ce
STEPHEN R. CLARK
CHIEF UNITED STATES DISTRICT JUDGE