Chavez v. S.F. Bay Area Rapid Transit Dist.

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GABRIEL CHAVEZ, et al., Plaintiffs, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant.

No. C 22-06119 WHA

United States District Court, N.D. California

June 21, 2024

ORDER RE PLAINTIFFS' MOTION IN LIMINE NO 7

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

INTRODUCTION

In this Title VII and FEHA failure-to-accommodate action plaintiffs former employees of defendant transit district, challenge the admissibility of defendant's expert industrial hygienist. For the reasons stated below, the motion to exclude is DENIED.

STATEMENT

The facts underlying this action have been stated in full in prior orders (see Dkt. No. 72). This order recounts only those facts relevant to the instant motion.

Plaintiffs former employees of defendant 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. Plaintiffs' constitutional claims were summarily adjudicated (Dkt. No. 72). Their Title VII and FEHA claims are set to go to trial.

BART has disclosed, inter alia, the expert report of Nancy McClellan, an industrial hygienist (Dkt. No. 92-2 at 4). Expert 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. Ms. 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. She testified in a Florida state court matter as a “pandemic risk assessment subject matter expert,” has delivered pandemic-related lectures to various professional organizations in the field, and has published on the topic in association with several professional organizations.

Expert McClellan's report can be divided into two parts.

First, Expert McClellan provides an overview of the “hierarchy of transmission/exposure controls,” or simply the hierarchy of controls. The National Institute for Occupational Safety and Health (NIOSH), cited in the McClellan report, describes the hierarchy of controls as “a way of determining which actions will best control exposures. The hierarchy of controls has five levels of actions to reduce or remove hazards. The preferred order of action based on general effectiveness is: (1) Elimination (2) Substitution (3) Engineering controls (4) Administrative controls (5) Personal protective equipment (PPE).” HIERARCHY OF CONTROLS, http://www.cdc.gov/niosh/topics/hierarchy/default.html. The report considers each level of action in the context of the pandemic at the time of the BART mandate. Because both elimination and substitution were not feasible, engineering controls (e.g., vaccination, protective barriers, ventilation, office and equipment design) are deemed the “best feasible controls” then available to BART (Dkt. No. 92-2 at 13). Administrative controls (e.g., written policies and training concerning hand washing, distancing) and personal protective equipment (masks, gloves, face shields, etc.), meanwhile, were “a less effective approach to pathogen control . . . because they rely on individuals to comply consistently and implement them effectively” (Dkt. No. 92-2 at 13-14). The efficacy of PPE was further undermined when, in the throes of the pandemic, “non-healthcare organizations were directed to utilize lesser protective masks of varying types as an interim measure, despite their questionable protective efficacy” (Dkt. No. 92-2 at 14). Expert McClellan opines that administrative and PPE controls were implemented despite “recognition of [their] poor effectiveness in reducing the transmission of an airborne, highly transmissible” virus because they presented “the only organizational approach available” prior to the dissemination of vaccines (Dkt. No. 92-2 at 14).

Second, the McClellan report performs a worksite risk assessment “derived from OSHA, ACGIH, AIHA, and NIOSH guidance” (Dkt. No. 92-2 at 14). As an initial step, four work settings are identified: “offices,” “stations,” “wayside,” and “workshops” (Dkt. No. 92-2 at 15). Next, data regarding “industry type and setting,” “the level of environmental administrative controls,” “the quality of ventilation systems,” and “the level of surface cleaning and disinfection,” received from BART's facility engineering and occupational health and safety staff via a questionnaire, is used to determine the risk of exposure in each worksite (organized qualitatively from very high to high, medium, and low risk). The report finds that, based on BART's provided data, BART's offices and workshops presented a “medium” risk of exposure, while stations and waysides ranked “high” (Dkt. No. 92-2 at 16-18).

The McClellan report concludes, 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” (Dkt. No. 92-2 at 20).

Plaintiffs have now filed a Daubert motion seeking to exclude, or in the alternative limit, the testimony of Expert McClellan. This order follows briefing and oral argument.

ANALYSIS

Under FRE 702, an expert witness may provide opinion testimony “if (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 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 has reliably applied the principles and methods to the facts of the case.” FRE 702.

The Daubert standard outlines the scope of the district court's role as gatekeeper:

[F]aced with a proffer of expert scientific testimony, the trial judge, in making the initial determination whether to admit the evidence, must determine whether the expert's testimony reflects (1) “scientific knowledge,” and (2) will assist the trier of fact to understand or determine a material fact at issue. This requires “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Kennedy v. Collagen Corp., 161 F.3d 1226, 1227-28 (9th Cir. 1998) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)). “Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), as amended (Apr. 27, 2010) (internal quotation marks and citation omitted). The party offering the expert testimony must show by a preponderance of the evidence that it meets the requirements of reliability and helpfulness to the trier of fact. Daubert, 509 U.S. at 592 n.10. That being said, “Rule 702 should be applied with a ‘liberal thrust' favoring admission.” Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (quoting Daubert, 509 U.S. at 588).

Expert McClellan's testimony passes muster under FRE 702 and Daubert.

First, Expert McClellan's testimony is relevant. “The relevancy bar is low, demanding only that the evidence ‘logically advances a material aspect of the proposing party's case.'” Messick, 747 F.3d at 1196 (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995)). The McClellan report is 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. Huller v. EBB Auto Co., 8 F.3d 1433, 1438, 1440 (9th Cir. 1993). FEHA requires a similar showing. Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 345, 370 (1996).

As a result, the jury will be tasked with determining the feasibility of, and hardship associated with, alternative exposure controls. Plaintiffs' summary judgment briefing on the issue, for example, argued at length that administrative controls (such as testing, work from home, social distancing) and PPE (masks, gloves, face shields, etc.) constituted reasonable accommodations that did not present an undue hardship to BART (Dkt. No. 46 at 16-19). Expert McClellan squarely addresses the issue in her report. First, she establishes the general efficacy of various exposure controls via the hierarchy of controls. She then contextualizes that hierarchy, describing how the pandemic at the time of BART's mandate further limited the efficacy of controls such as PPE. The McClellan report ultimately concludes 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” (Dkt. No. 92-2 at 20).

Second Expert...