Toxicology Expert Allowed to Opine on COVID-19 Safety Protocols

Pro se Plaintiff Geraldine Imoya Monroque ("Plaintiff") brought this action against Lions Gate Television, Inc. ("Lions Gate") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL").

This case has its origins in the COVID-19 pandemic. As has been recounted in numerous other cases considering challenges to vaccine mandates, on January 31, 2020, the United States declared a public-health emergency due to the rise of COVID-19 cases.

Plaintiff has worked in the entertainment industry as a film and television actress and has been a union member of SAG/AFTRA since 2002. On February 2, 2023, Plaintiff was contacted by Central Casting, on behalf of Lions Gate, to inquire whether she was available to perform as a background actor on an episode of Raising Kanan. Because of her unvaccinated status, Lions Gate released Plaintiff from the role.

Defendant offered Dr. Angela Perez as an expert in the field of COVID-19 safety protocols. Plaintiff sought to disqualify or limit the testimony of Defendant's expert witness, Perez, under Rule 702 and Daubert.

Toxicology Expert Witness

Dr. Angela L. Perez holds a Ph.D. in Toxicology from Oregon State University and conducted postdoctoral research in Pharmaceutical Chemistry at the University of California, San Francisco.

She has more than 20 years of professional experience as a toxicologist evaluating chemical and biological risk in occupational and environmental settings and as a Certified Industrial Hygienist performing exposure assessments for chemical and biological agents. She has published more than 50 articles and abstracts in the areas of toxicology and industrial hygiene.

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

Discussion by the Court

Plaintiff first argued that Perez "lacks the requisite scientific, medical, and subject-matter expertise" to qualify as an expert under Rule 702. The Court disagreed.

With respect to COVID-19, since February of 2020, Perez has "participated in the development of COVID-19 cleaning and disinfection protocols, including working with the Centers for Disease Control and Infection (CDC) to approve cleaning and disinfection plans onboard marine passenger vessels." She has "overseen the implementation of cleaning and disinfection protocols in various other commercial, residential, and industrial locations," "developed. . . overseen and directed contact tracing procedures at multiple commercial locations," and "overseen COVID-19 testing and coordinated sample collection, analysis, and interpretation of laboratory results." The Court concluded that Perez's extensive experience and education qualifies her to offer her opinions on the toxicological basis behind the development of the Lions Gate COVID-19 safety protocols as they relate to the production of Raising Kanan.

Plaintiff next argued that Perez's "opinions regarding COVID-19 vaccination, risk mitigation, and related medical considerations are not grounded in recognized scientific consensus or peer-reviewed data." In her report, Perez stated that she based her opinions "[u]pon [her] review of the factual record and the relevant scientific literature," as well as her "decades of experience working as a toxicologist engaged with environmental hazards and, in particular, the spread of infectious disease." In particular, she relied upon "scientific studies published in the peer-reviewed literature, facts and data reasonably relied upon by persons in [her] field, [and] publicly available information published by authoritative governmental agencies such as the CDC or public research institutions (e.g., universities)." Plaintiff does not indicate which reports or conclusions she believes are not "grounded in recognized scientific consensus or peer-reviewed data," but Perez cites to various reports and policies issued by the CDC, New York Health, and scientific literature published in reputable medical journals to support her claims.

Plaintiff additionally argued that Perez's testimony relies on "unsubstantiated generalizations rather than specific, verifiable evidence related to Plaintiff Monroque's medical condition or the workplace circumstances of this case." With respect to Plaintiff's medical condition, Perez's expert report directly relies upon statements that Plaintiff made in her correspondence with Human Resources representatives inquiring about a medical accommodation to the vaccination policy, statements that Plaintiff made in her religious accommodation form, her complaint, and her deposition. Regarding workplace conditions, Perez reviewed the COVID-19 protocols that were in place on the set of "Raising Kanan," including the RTWA, LGTV-Starz's Production Safety Guidelines that were adapted and used by the production company, and "contemporaneous guidance by the CDC, the New York State Department of Health (NYDOH), the New York City Department of Health and Mental Hygiene (NYC Health)." Therefore, the conclusions in Perez's report did not rely upon "unsubstantiated generalizations," but instead were based on a comprehensive review of the evidence specific to this case.

Plaintiff also challenged the admission of Perez's testimony because she had an employment relationship with Lions Gate during the relevant time period. In particular, Plaintiff contended that Perez's "prior and ongoing relationship" with Lions Gate "renders her effectively a partisan witness."

Prior or current employment with an interested party does not automatically disqualify an expert from rendering expert testimony.

Held

Therefore, the Court denied Plaintiff's motion to exclude or otherwise limit Dr. Angela Perez's testimony under Rule 702 and Daubert.

Key Takeaway

Courts routinely permit expert testimony by parties, employees, and others with financial and other plain interests in the outcome of the litigation. Issues of potential bias of an expert go to the weight, not the admissibility, of his testimony.

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