[00:00:00] Speaker 05: We will now move on to our third in the series, Nielsen versus University of Washington, case number 24-7460. And we'll hear from Mr. Arnold again. [00:00:21] Speaker 03: Thank you, Your Honor. And may it please the court again, Nathan J. Arnold, on behalf of the appellants. [00:00:27] Speaker 03: There's certainly a lot of crossover from the things we've already discussed this morning, Your Honor. [00:00:32] Speaker 00: I'll tell you my heartburn. Sovereign immunity here. Why is the University of Washington, the state's university, not entitled to sovereign immunity? [00:00:43] Speaker 03: Certainly, Your Honor. So the University of Washington predates the state of Washington. It was created through federal... [00:00:51] Speaker 03: land grants it is controlled by a board of regents that are separate from um from the state government is it interested by the governor right appointed by the they can be appointed by the governor but they also cannot be removed by the governor it's a very interesting middle ground okay but who pays the tab if the if the judgment is entered against the university I believe the university does, Your Honor. [00:01:17] Speaker 00: I think it comes out of the state. As I read the statute, I think it comes out of the state risk fund. [00:01:23] Speaker 03: It can, but is not required to be out of the state risk fund. [00:01:28] Speaker 00: I mean, the university is in one unique situation in that it owns a substantial amount of very valuable property in the heart of downtown Seattle from which it leases and receives a substantial amount of revenue. but that's not enough to run the university of Washington. So the state has to supplement it. Does it not out of the state treasury to pay some of the salaries of the, I think they have 50 or 60,000 employees. It's a lot. [00:01:59] Speaker 03: They do have a lot of employees, your honor. And that's important for some other analysis in this case. Um, the state treasury does provide, does have some funds earmarked for the university. Um, [00:02:13] Speaker 00: The university though, all the time, right? For medical malpractice, for professors who don't get tenure, for torts, for environmental issues, you name it, they face it. So applying Gallant and the cone factors, as I see the record here, it's pretty clear that sovereign immunity should apply. [00:02:43] Speaker 03: One of the other critical, and I apologize, I don't have a record of citation for this, Your Honor, but one of the other major sources of revenue for the university is the medical center itself, which I believe significantly outstrips. [00:02:57] Speaker 00: Also grant money, particularly from the federal government. [00:03:01] Speaker 03: And I believe that significantly outstrips the funds. [00:03:06] Speaker 06: Every state in the union gets a lot of money from outside federal government. Maybe less now than they did a couple years ago, but that doesn't mean the states aren't states, aren't sovereigns. To tell me the University of Washington, particularly the medical center, gets outside money doesn't change its status as a part of the state, does it, under the sovereign immunity doctrine? [00:03:30] Speaker 03: I agree that that alone is not – so an entity receiving some outside money alone certainly would not tip the scales in the sovereign immunity analysis under either Goulet or Cohn. [00:03:47] Speaker 05: Can you can you address. OK, so this one's on summary judgment, right? Yes, sure. OK, so we don't have the 12 B6 issues and. [00:03:57] Speaker 05: This one comes down slightly different than the other cases in the focus on undue undue burden, right? [00:04:06] Speaker 05: Yes, Your Honor. So it's not really... And why do you think that there... So in Peterson and now Williams, we said there was no factual dispute. [00:04:22] Speaker 05: How can you distinguish those two cases from this case? [00:04:26] Speaker 03: Specifically how this case is distinguishable from both those cases, Your Honor, is In Peterson Williams, there was no countervailing medical expert testimony by the plaintiffs. And I think that's where you have Dr. Risch. Is that that's correct? [00:04:43] Speaker 05: What is it about Dr. Risch's testimony that is compelling in your view? [00:04:47] Speaker 03: Dr. Risch is a epidemiologist who opines upon the, and I'm probably gonna use the wrong epidemiological terms here, but for a lay person, the relative risk that the university was willing to accept vis-a-vis those individuals who were vaccinated, where it is acknowledged across the board, unfortunately, other than for Lysol sales, that there were breakthrough infections with this specific vaccine. [00:05:21] Speaker 06: The vaccine wasn't 100% effective. [00:05:23] Speaker 03: Correct. [00:05:24] Speaker 06: So that leads to a conclusion that, so why bother? [00:05:28] Speaker 06: Does it? [00:05:29] Speaker 03: I don't think that's the conclusion that it leads to. I think that if you followed a incorrect logic trail too far, you could get there. [00:05:38] Speaker 06: But I don't think you have to follow it very far. He said there are going to be breakthrough infections. Now, he said that based on data that wasn't available at the time. which is all by itself a reason to disregard what he said as best I can figure out. But he says that. There are going to be breakthrough infections, and I doubt that that's a shocker to anybody because, as far as I know, no vaccine is 100% effective. And then he says, and so we accept a certain amount of reality that there are going to be people that are infected, and then he appears to say, so we ought to accept a little more. [00:06:16] Speaker 06: Does he say something different than that? [00:06:19] Speaker 03: Yes, I think he does. [00:06:20] Speaker 06: What does he say different from that? [00:06:21] Speaker 03: So to one point, the publication date of data versus the availability of data is an important point. I agree with your honor, and this has been an issue that's come up in other cases, specifically with Dr. Risch and other experts. And courts have, I agree, ruled that only the data that are available at the time of the decision-making is what should be addressed. [00:06:45] Speaker 06: And available to the decision-maker. The fact that he might be doing academic research that has gathered some material but he hasn't published it yet doesn't help the decision-maker who doesn't know all that stuff. [00:06:56] Speaker 03: I agree with that as well, Your Honor. [00:06:58] Speaker 06: And the fact that a vaccine is not 100 percent effective is something the decision maker can probably be expected to know, particularly since these vaccines were in the process of rapid development. Was it Operation Warp Speed? The administration called it. So we were dealing with lots of unknowns. But it's probably true the decision maker had reason to think that the vaccine wasn't going to be a silver bullet, wasn't going to be a cure-all, wasn't going to be 100% effective. So there would be breakthrough cases. [00:07:28] Speaker 06: I will give you that. But I don't see what else he says that helps your position beyond that. [00:07:37] Speaker 06: Because he's saying, so you ought to accept more infection from people that aren't vaccinated. [00:07:43] Speaker 06: What else is he saying? [00:07:45] Speaker 03: He's saying that the university was willing to accept a much significant. [00:07:53] Speaker 06: Well, willing to accept because they had no choice. The medical reality is the vaccine is not 100 percent. So they're doing the best they can. But he's saying they ought to accept more from unvaccinated people just because they have to have some because no vaccine is 100 percent effective. What else does he say? He's not saying that the rate will get any lower because the breakthrough is going to happen with the vaccinated population. What does he say that doesn't acknowledge that the situation will be worse if unvaccinated people are added to the employment mix? [00:08:27] Speaker 03: I believe part of his opinion was that the trajectory of efficacy was plummeting at a rate that it would, um, So back it up. [00:08:37] Speaker 06: So future projection, not something that's known as fact at the time by the decision maker. That seems to be pretty unhelpful. [00:08:46] Speaker 03: I have to respectfully disagree with that. Again, I'm not an epidemiologist, but my understanding is that one of the things that epidemiologists do is take the data that's available at the time and then do mathematical modeling to predict what is going to happen in the future. I think that's part of it. [00:09:00] Speaker 06: But how does it help to add unvaccinated people to the mix? Because that's what you're talking about here. You're saying the state or in this case, the university dealing almost entirely this group of plaintiffs are health care workers. [00:09:17] Speaker 06: How does it help to allow unvaccinated people into the mix of health care workers? I think 20 of 21 were health care workers and they were all deemed to have patient contact. So how does it help to add unvaccinated people to the mix of employees that will have patient contact? [00:09:39] Speaker 03: So I think the proper question is actually the inverse of that, Your Honor, and that is how does it hurt where the employer is accepting significant risk already? [00:09:50] Speaker 06: So you'll make the risk worse. That's how it hurts. Assuming for a moment that unvaccinated people aren't going to have a better outcome than the vaccinated people. You're talking about the breakthrough cases. How does it help to add a higher risk to the patient population? [00:10:13] Speaker 03: I think Dr. Risch's point is the acceptability of risk that the university underwent for its secular population to include. [00:10:25] Speaker 06: Which it couldn't help because there's going to be breakthroughs, even though you don't know how big it's going to be. So the university ought to be prepared to accept greater risk, which he think wasn't going to be that much greater, but was going to be a greater risk because you're adding unvaccinated people to the employment pool. Am I wrong about that? [00:10:44] Speaker 03: I think that you are correct that necessarily the more, well, necessarily the more employees period with an infectious disease. Again, I'm outside of my lane a bit as a lawyer, not an epidemiologist, but necessarily the more employees you have as well. the greater the risk is going to be. [00:11:02] Speaker 06: But this goes to something... And the risk is going to be greater, but for unvaccinated people, does he say anything to suggest that the risk for an individual unvaccinated person isn't going to be higher than the risk for a vaccinated employee? He doesn't say that. [00:11:19] Speaker 03: I don't believe he does, Your Honor. [00:11:20] Speaker 06: And so you're telling the university... the medical center where I used to have to go if I wanted to go home to Hawaii to get clearance back in the day, you're telling them that, okay, because there are going to be breakthrough cases because no vaccine is 100% perfectly effective, you've got to accept greater risks from people that are unvaccinated. [00:11:44] Speaker 06: Isn't that what he's saying? [00:11:45] Speaker 03: I don't think it's exactly that, Your Honor. I think it's if the agency is willing to accept A quantum of risk. [00:11:53] Speaker 05: Well, it has no choice. [00:11:56] Speaker 05: Let me ask it this way. I thought, correct me if I'm wrong, Dr. Risch was simply saying, look, there is this risk factor that is already baked into it, 4.6% where it's ineffective, the vaccine. [00:12:12] Speaker 05: You're talking about, on pure numbers, a number that is so much smaller than that. [00:12:19] Speaker 05: By the unvaccinated. So if – I guess under that theory, if the request for accommodation had been much higher than 4.6%, Dr. Risch's testimony wouldn't have been helpful, which might go back to the first case where there were more numbers. But here, because they were so small, Dr. Risch's point, I thought, was – So you've already accepted 4.6%. What's the difference on adding on another 0.5% if the countervailing is accepting their religious accommodation? [00:12:55] Speaker 05: Is that an undue burden? Isn't that what we're being asked to determine? [00:12:58] Speaker 03: I think that is correct, Sharon. And to Judge Tallman's point, we're talking about a university with a lot of employees. [00:13:04] Speaker 03: And how many were here? [00:13:05] Speaker 05: We have 21 plaintiffs here, but how many – do you have the numbers on? [00:13:15] Speaker 05: I mean, what I remember was it was 4.6. Rish said it was a 4.6. And correct me, we'll ask whether that was, to Judge Clifton's point, was that information that was known at the time, but that it was a third of that. So we're talking about 1%. [00:13:34] Speaker 05: Would it even be that high? Was it 1% that we're requesting accommodations? [00:13:38] Speaker 03: I don't believe it was that high, Your Honor. I'd have to go back and check those numbers. I can't swear to it here. my understanding again, and maybe this is to a more fundamental point is, um, I am not someone that should be arguing epidemiology. I've spent a lot of time. [00:13:54] Speaker 05: But you do need to help us. You do. Fair enough. We're not epidemiologists either, but, but we've got to understand the record. [00:14:01] Speaker 03: Absolutely. But my point is that at summary judgment as the non-moving party, we had a battle of experts on this. [00:14:08] Speaker 05: Well, but I also don't know that you get there. Well, that's a good question. Do you get there by just putting up your own expert? I'm not sure that it's fair to say that a plaintiff puts up an expert. That's enough to get you. I mean, undue burden at the end of the day is a legal question that's informed by the facts. I mean, it's kind of a mixed question. And the question is, have you presented enough here? And I think the nuance in your argument is important to understand. [00:14:32] Speaker 03: I absolutely agree with your first premise, Your Honor. If someone were to put me up as an expert for an epidemiologist and I was somehow accepted, that would not be enough, certainly. So there has to be someone. But in this case, although it may be a mixed question of fact and law, we know from Groff that it's a very fact-intensive question. [00:14:53] Speaker 03: And those facts should be resolved by a jury. [00:14:55] Speaker 00: If there are genuine issues of material fact in dispute, and I think that's what we're wrestling with, whether or not Dr. Risch's testimony is sufficient to create a genuine issue of material fact on a fact that matters. And what strikes me as unusual about this case, which is not applicable in any of the other cases we've talked about today, is that you have medical experts that the decision makers are relying on. We had an expert vaccination policy committee. [00:15:29] Speaker 00: I guess, headed up by Dr. Seth Cohen, an infectious diseases specialist, who's basically making a medical recommendation as to how the policy should be implemented with a goal towards minimizing the exposure of unvaccinated individuals to a very vulnerable set of patients and also reducing co-workers who have to work very closely face-to-face with those patients and treating them. [00:16:02] Speaker 00: I don't know of any other case that I've seen involving non-medical situations where the decision maker had those kinds of resources to draw on in making the ultimate determination as to whether these exemptions could be accommodated. [00:16:22] Speaker 00: Do you have any comment on that? [00:16:24] Speaker 03: I would I would similarly, I'm making an assumption here, which I should qualify with, but I would certainly think that the University of Washington would be in a good position to do that scientific analysis. [00:16:37] Speaker 03: We took issue with the ultimate outcome of that analysis through Dr. Rish's opinion as the non-movements and summary judgment. But I think there's, as I've seen my time more than- [00:16:54] Speaker 00: was this is not a risk that we are prepared to accept based on the vulnerable patient population that we serve and the close working relationship between the employees and the patients and there's another distinguishing factor i think has some interplay with this your honor and that is in this case [00:17:16] Speaker 03: We have explicit policy that's demonstrated by HR email and the University of Washington's accommodation matrix, which I believe was generated through the work of Dr. Cohen and others, that explicitly allows for medical accommodations and does not allow for religious. And that's a major issue in this case. [00:17:36] Speaker 00: It didn't allow for religious for those who had direct contact. [00:17:42] Speaker 00: And that applied to everybody, whether they had medical exemptions or religious exemptions, did it not? [00:17:48] Speaker 03: I believe that there are... The terminology in the accommodation matrix says that it is an undue hardship to accommodate anyone that does not have a temporary medical exemption. [00:18:04] Speaker 00: And I think the... And even the temporary medical exemption meant... there may be in the not too distant future a new improved version of the vaccine that will be better and that can be safely administered based on whatever the reason was for the medical exemption. [00:18:22] Speaker 00: That was a temporary accommodation, right? [00:18:26] Speaker 03: I think the temporary accommodation label is really important here because even a temporary accommodation is superior treatment than a termination. [00:18:36] Speaker 00: I guess one example that comes to mind would be a pregnant woman so that after the hopefully safe delivery of the baby, she might not be as vulnerable afterwards than she was before. [00:18:56] Speaker 03: I think that is a good example, Your Honor, and I would be shocked if that's not a specific thing that happened at the university. Yeah. That, of course, highlights the individualized exemption process and the mechanism that the university used, which is important for our general applicability. [00:19:09] Speaker 00: How does that violate the Constitution? That's what I'm struggling with. I mean, it seems to me that the university was doing the best that it could, bringing enormous resources that most employers, including the Department of Natural Resources and the Department of Children and Family Services, did not have. To the decision maker in deciding whether or not it could reasonably grant accommodations to all of the people who'd been given exemptions. [00:19:37] Speaker 03: Well, and the... I don't want to say it's unique to this case, but an important... [00:19:45] Speaker 03: Important facts here are that the explicit university policy, as we see in email and we see the matrix, was we are going to provide accommodations for a secular reason that undercuts our compelling interest. For example, that pregnant woman, albeit temporary, is still operating in whatever capacity is unvaccinated. So her secular activity undercuts the compelling government interest in the same way that a religious exemptor would. but the university made the decision that we are going to provide this benefit that is accommodation to those that we determine are medically exempt, but we're going to deny it to our religious. [00:20:28] Speaker 03: So the university explicitly said, here's a pathway to keeping your career if you have a secular reason, even though it undercuts our compelling government interests. But if you have a religious reason, that would result in activity that undercuts our compelling government interest, that pathway is foreclosed. [00:20:44] Speaker 00: But the problem, as I understood it from the record, was with the permanent exemption, which a religious exemption presumably would be, is it's unlikely that the religious belief is going to change at any time in the future, right? [00:20:58] Speaker 03: A couple of things on that point, Your Honor. The OFM guidance states that all accommodations are to be reviewed on a roll-in 60-day basis. So if the guidance is being followed, everything was a temporary accommodation, religious, secular, or otherwise. [00:21:15] Speaker 00: I'm not sure that's true with regard to a sincerely held religious belief. [00:21:21] Speaker 03: So the difference there, Your Honor, is we don't want to conflate exemption and accommodation. I don't think the OFM guidance said we're going to have a 60-day re-evaluation of this individual's sincerity, but we are going to have a 60-day re-evaluation of the accommodation and mitigation that's in place. So the sincerity, I think, presuming that doesn't change, is a fine presumption. To your previous comment, though, Your Honor, you indicated that there could be a temporary medical accommodation because a new... [00:21:50] Speaker 03: a new version or a new brand, I suppose, a vaccine could come out that doesn't, for example, contain something that that person's allergic to. [00:21:59] Speaker 03: Did I hear that correctly? Yeah. Okay. [00:22:01] Speaker 00: Because we know from experience, right, that the vaccines did change. They had to in order to adjust to the variants in the COVID virus that developed. [00:22:13] Speaker 03: And so even assuming that the religious beliefs do not change – another vaccine could also come out that did not conflict with some of these religious beliefs. For example, and we're getting a little far afield here, admittedly, Your Honor, I don't want to get any more to vaccine taxonomy than I do epidemiology. But if, for example, Novavax vaccine, the university determined could be a way to address a temporary accommodation, that would eliminate folks that had an objection to aborted fetal cell lines. [00:22:44] Speaker 03: So there are several different ways in which we can see that a temporary accommodation, which we believe based on the OFM guidance, they were all temporary anyway, that a temporary accommodation is still a benefit relative to termination. And that pathway to that benefit was foreclosed for no other reason than someone had a religious objection while that pathway remained open for those that had a secular objection. [00:23:13] Speaker 06: Well, but if... [00:23:16] Speaker 06: Again, the situation was unfolding. The reason they were doing this review was because the circumstances were changing. If, in fact, there was a vaccine developed that did not trigger the religious objections to use of that vaccine, there would be no burden on the employee coming back and saying, well, I don't have an objection to this X vaccine, so here I'm getting my vaccine, take me back. [00:23:46] Speaker 06: And no sign that, in fact, that would not have happened if that's how facts had developed. [00:23:53] Speaker 03: I think that's correct, Your Honor, but that also takes out the practical reality that that person has then since been terminated and presumably is finding something else to do to pay their bills. [00:24:03] Speaker 06: Well, but I'm not sure how that's something you can impose upon the state. Otherwise, you're suggesting you can't terminate it. You got to keep them. You got to accommodate them, even though it's greater risk for the patients. [00:24:17] Speaker 06: In case a vaccine is developed later that this person will be willing to take. [00:24:22] Speaker 03: I'm not suggesting that they per se had to do that. I'm suggesting that the same logic would apply. And that is another reason why a temporary accommodation is a benefit relative to a termination. We're also dealing with a temporary accommodation. [00:24:36] Speaker 06: But how do you do a temporary accommodation for someone who says the existing vaccines don't work for me? I object to them. That's not something that's going to change anything. [00:24:46] Speaker 06: within the control of anybody in the circle, that's vaccine development. The temporary exemptions that I understood or the temporary accommodations I understood for medical reasons had more to do with the condition of the employee than it did with, I mean, the outside vaccine development could make it available to some employees, I guess, but I understood it had more to do with the employee than something happening outside. So that's a very different situation. They're not very comparable. [00:25:19] Speaker 03: I think they are comparable, Your Honor, because the reason for the objection is not what makes the groups comparators. It's the risk of undercutting the government's stated compelling interest that makes them comparators so similarly to your point your honor there is more risk i think everyone agrees that there was more risk for a religious person to remain unvaccinated but there is the same amount of risk for the secular person to remain unvaccinated and the university tolerated that but completely foreclosed even the pathway for the religious and that's something we fundamentally take issue with from a free exercise perspective [00:26:02] Speaker 05: We've taken you way over, but just so I'm clear, there were 21 plaintiffs here. Some were... There were two groups, right? There were patient contact plaintiffs and... Can you give me the split up on how that was? [00:26:16] Speaker 02: I believe you were correct previously, Your Honor. I believe it is 20 and 1. Well, but were they all patient contact or non-patient contact? [00:26:24] Speaker 03: The bulk of them had some patient contact. We... [00:26:31] Speaker 03: did suggest that there were ways to reduce or mitigate that patient contact. But I believe that all 20 of that set had some patient contact, at least prior to COVID. So in their regular job, they would have had patient contact. [00:26:46] Speaker 05: But that doesn't mean that they couldn't have been accommodated in some other way, perhaps. If they only had 10% patient contact. [00:26:53] Speaker 03: And particularly where accommodations were being tolerated for secular individuals, we're at the same risk, Mr. Honor. [00:27:00] Speaker 05: All right. We'll give you a little bit of time for rebuttal. Thank you, Your Honor. [00:27:06] UNKNOWN: Thank you. [00:27:20] Speaker 04: Good morning again. May it please the Court, Zach Picala, Special Assistant Attorney General for Apple Ease. [00:27:26] Speaker 04: Like the two previous cases on the calendar, this one is controlled by this court's precedents, which strongly support a firmness of summary judgment on both of the two live claims. First, the district court correctly granted summary judgment on the employee's WLAD failure to accommodate claim, as that holding is on all fours with this court's decisions in Peterson and Williams. Under those cases, an unvaccinated worker's increased risk of infection and spreading the virus to patients, members of the public, or coworkers readily satisfies the undue hardship standard as a matter of law. [00:28:00] Speaker 05: Okay. So first of all, because that seems to be the focus here. I mean the sovereign immunity and the qualified immunity, even if we go your way on qualified immunity, you agree that doesn't control the state law claim, right? [00:28:13] Speaker 02: Yes. [00:28:13] Speaker 05: Okay. So that's why – and the state law claim is controlled by federal law, which is why you're arguing, I guess, that Peterson controls even the WLAD claim. Exactly. Exactly. So is that true? Because here's what the district court said in this case. [00:28:32] Speaker 05: It discounted Dr. Risch's testimony and said Dr. Risch does not opine that the vaccines were ineffective safety measures. [00:28:43] Speaker 05: I take it you view that statement as consistent with Peterson. But I don't think I read Peterson quite the same way because, I mean, under that theory, unless you could say – it almost puts the burden on the planet. What if the vaccine were only 10% effective? [00:29:01] Speaker 05: Would this be a different case? I mean, then wouldn't there be more incentive to grant accommodation to religion? I mean, because at that point you're like, well, wait a second. We only have a vaccine that's helping 10% of the time. So 90% of the vaccines that we're giving aren't effective. And we only have, I don't know if you know the numbers, but 1% or less than 1% that are requesting vaccines. [00:29:25] Speaker 04: religious accommodations so wouldn't you say that in that scenario this regime wouldn't have made any sense no and let me explain why and I think I have to first give you my reading of Peterson and more importantly Williams which is even more factually on point And then second, I'll explain why Dr. Risch's expert report does not create a genuine dispute of material fact. So Peterson and Williams both hold that an increased risk, a substantially increased risk of an employee, an unvaccinated employee contracting and therefore transmitting COVID to members of the public, patients or her coworkers can represent an undue hardship as a matter of law. [00:30:10] Speaker 04: In both Peterson, where Dr. John Lynch of the University of Washington was the expert, And in Williams, where Dr. Seth Cohen of the University of Washington was the expert, the uncontroverted evidence was that vaccination substantially or significantly decreased the risk of infection with COVID. Here, that same fact, again presented by Dr. Seth Cohen and additionally Dr. Reingold, the experts for the university, that fact the increased risk of an unvaccinated person being infected with COVID is undisputed on this record. [00:30:45] Speaker 04: Dr. Risch's testimony focuses instead narrowly and singularly on a vaccinated person's risk of transmitting COVID after they've been infected. And so Dr. Risch's theory, and this court can accept this as true for the purposes of summary judgment, is that And whether once a person is infected, whether vaccinated or not, it's not material whether they're going to transmit it to someone else. But Dr. Risch quite openly ignores and acknowledges that he's not rebutting a vaccinated person's lower risk of being infected in the first place. [00:31:26] Speaker 04: And Dr. Risch does acknowledge, of course. which is common sense that to transmit the virus, you have to first be infected with the virus. So that central principle, that central evidentiary undisputed principle in Peterson and Williams, an unvaccinated person's substantial increased risk of contracting COVID infection risk, is not addressed by dr rish's testimony whatsoever there are several other problems with dr rish's testimony that numerous other district courts in this district have recognized and other districts have recognized in rejecting his opinions whether on the summary judgment posture or on a d'albert motion posture so and let me judge clifton referred to one which is that he obviously is relying on post-2021 data [00:32:14] Speaker 05: first conclusion conclusions and that violates the principle that the employer doesn't have a crystal ball and you look to what the employer had at the time so that okay so do do i understand rish's testimony to be look the the vaccine is basically 95 effective i thought he said there was 4.6 percent of vaccinated individuals suffered from breakthrough infections does is that the I don't know if I'm right on this. Is that the same thing as saying the vaccine is 95 percent effective at not allow it? [00:32:48] Speaker 04: Yes. OK. And Judge Estudio's opinion in Luxton, which is a case on the calendar for Friday. So those on the panel will look at that. Judge Estudio really rips. [00:33:00] Speaker 06: The infection, though, will spread. [00:33:04] Speaker 04: We'll make sure you get it. My colleague will be arguing that one, but I'll be back. But I think Judge Estudio is, for lack of a better word, takedown of Dr. Risch is much more comprehensive. And pointing out that so he's comparing basically a 95 percent efficacy rate with a and this is Rich's own assumption. He assumes a 100 percent inefficacy rate for unvaccinated persons. So in let's see, where's. [00:33:32] Speaker 04: Well, I'll leave it there, but, you know. [00:33:38] Speaker 04: He completely ignores the fact that unvaccinated persons are, in fact, at a much higher risk. In fact, he assumes it's 100% of getting infected with COVID. [00:33:48] Speaker 06: Well, he assumes they're going to be infected because that's what he's looking at. What happens after you've been infected? What are the chances of passing it on? [00:33:55] Speaker 04: Exactly. And here's maybe the biggest problem. with his report. He's taking the entire University of Washington employee population of 35,000 employees and assuming they all have the same risk of contracting and spreading COVID. And of course, this case involves 21 employees, 19 of whom worked in direct patient care 16 of those were direct patient care. Three were indirect patient care, dealing with what Dr. Seth Cohen called the most complex and medically vulnerable population in the entire region. [00:34:28] Speaker 04: And of course, they worked in jobs like registered nurses and surgical facilities, respiratory therapists. By the way, the same jobs that were at issue in the Williams v. Legacy health case. So that assumption that a physics professor or a literature professor is at the same risk of transmitting COVID, contracting and transmitting COVID as a physician or a physician assistant, working at Harborview is totally fallacious. [00:34:55] Speaker 04: And I think just Dr. Risch's underlying conclusion, he says it's irrational for the state, for the university to mandate vaccination because the risk of vaccinated persons is high enough that there's no reason not to just allow unvaccinated people to continue working. That is just a – it's a false logic. [00:35:18] Speaker 05: Doesn't it depend on the number? And this is where I might be misunderstanding because if the numbers of religious accommodations were higher – then obviously that increases the risk more. I mean, that's what I'm getting at. Like, wouldn't this be different? I understand we're dealing with the 95% number, but if the vaccine were only 10%, you seem to suggest that wouldn't make any difference. It seems like it makes a huge difference if the vaccine were only 10% effective. I know that's not the facts we're dealing with, but that's why I'm getting at, isn't the proper comparison here? [00:35:55] Speaker 05: How much greater was the risk than what was already being tolerated. And there was already a 5% risk factor being tolerated, right? Even if you required everybody to get the vaccine, 5%, it wasn't going to work. [00:36:12] Speaker 04: I'm not sure I would say that the risk was being tolerated. It's just that there wasn't anything practically within the state's control that they could do about it. And again, as the Peterson case says, the COVID pandemic required employers. [00:36:26] Speaker 05: The problem with that is it, or it's a ratchet down to just say at that point, you're not going to allow any religious accommodation because any religious accommodation is going to increase the risk. And so the whole point is why are we even going through this process? Because we know we're not going to give it because if we give one person a religious accommodation, or if we give 10 people, or if we give a hundred people, [00:36:51] Speaker 04: Any of that is unacceptable. So here, the record shows that many religious accommodations were afforded. In fact, unlike even in the Seagraves case, this case shows that there was a higher rate of accommodating religious objectors. On the exemptions or the accommodations? Accommodations. More UW employees. Those were non-patient contact individuals. This was within University of Washington Medical Center. Correct, but... Within University of Washington Medical Center. [00:37:17] Speaker 05: But still they were non-patient. Correct. [00:37:19] Speaker 04: They were fiscal analysts or whatever who could do their jobs remotely or otherwise without risk of interacting with patients or with other employees who did interact with patients. That would be the indirect patient contact. [00:37:34] Speaker 06: So the problem here is that the pool of this plaintiff group happens to be a pool of 19 were direct or indirect patient. Number 20 was the woman from the School of Nursing who acknowledged had some patient contact. And number 21 was the guy that spent like 20% of his time in a small boat with other people. This pool of people who obtained religious exemptions were a group that, based on what they did, could not be accommodated. [00:38:09] Speaker 06: Whereas they were willing to accommodate anybody they could whose jobs did not involve the risk of the patient contact. [00:38:18] Speaker 04: Exactly. And there's just no case suggesting that in order to measure the undue hardship imposed by an employee who's requesting a religious accommodation or a group of employees, that you look at the hardship imposed by all the employees who aren't requesting an accommodation. That just makes it backwards. Right. [00:38:37] Speaker 04: This comparable theory – and by the way, many district courts have simply excluded Dr. Risch's opinion in that regard as an improper legal opinion because it's essentially saying to the court, here's how you should measure undue hardship. [00:38:49] Speaker 06: She's saying how much risk you should be required to bear. [00:38:52] Speaker 05: Exactly. That wasn't done here, right? I mean that's what I'm – the plaintiffs have to come forward with a genuine issue of material fact. Dr. Risch comes forward. Why was he rejected by the district court? Not because he wasn't a qualified expert, not because he was coming forward with a legal opinion. He just said the facts that Dr. Risch is weighing in on are not material to the legal question of undue burden. [00:39:19] Speaker 04: Correct. And I think the district court's opinion in this regard was clear. Judge Peckman focused on the fact that Dr. Risch is not claiming anything. that the vaccines were ineffective. And I view that as a shorthand of saying he is not arguing that the vaccines did not substantially reduce a vaccinated person's risk of contracting COVID. But other district courts have expressed criticism and concern with Dr. Risch's opinion. That's the Rosa v. City of Issaquah case. Strandquist, Luxton, which again is Friday. Richardson v. National Basketball Association. [00:39:49] Speaker 04: But we can't really weigh in on that, right? [00:39:51] Speaker 05: Because we're stuck with what the district court did here. [00:39:54] Speaker 04: In a sense, but courts exercise a gatekeeping function under Daubert, not only formally. [00:40:00] Speaker 05: But I don't think we can. I don't think we can. I mean, if he wasn't rejected under a Daubert theory below – [00:40:08] Speaker 04: I mean, you didn't really advance a... Did you make a Daubert motion below? The procedural posture of this case is interesting. It wasn't time for Daubert motions yet. The district court created two different tracks for summary judgment, and this was both parties moved at the first track, which was before the motions in limine deadline. So even if this court were to disagree with We'll have to go back down and have a Daubert hearing. Yes. [00:40:33] Speaker 06: Well, the point about the data not being available was something we commented upon in both Peterson and Williams. [00:40:41] Speaker 06: And so, at least to that extent, the Court of Appeals can say, well, this isn't on the playing field at the right time. [00:40:47] Speaker 04: I agree, Judge Clifton. I think this court can look at the totality of Dr. Risher's opinions and all their flaws informed by the decisions of many district courts that have rejected them in addition to the court below. and say, this just doesn't create a genuine issue of material fact. [00:41:05] Speaker 04: So my friend on the other side mentioned that under OFM guidance, all accommodations were supposed to be temporary. So I think if you actually look to the record, and this is at 10 ER 2428, what that state human resources guidance is showing is it's about telework. And it's clearly communicating the thrust of it is, look, State agencies, if you give an employee an accommodation if you grant an accommodation. And it's you often case it was telework make sure you're not communicating that you'll be able to telework and perpetuity make sure you're communicating to your employee that hey we might. [00:41:43] Speaker 04: Have a more in office type environment as we're moving towards 2022 and coming into the office more. So it's not about reviewing accommodations every 60 days, whether they're granted or denied. It's very much geared towards that telework and making sure employees don't think that they now have a license to telework for the rest of their careers. [00:42:02] Speaker 06: Which law firms have been struggling with for several years now. [00:42:06] Speaker 04: I think ours has found the right balance, three days a week in the office. One other point that the employees make, is about patients and visitors. And arguably, it's not even preserved. But they say that the fact that the University of Washington didn't require patients or their loved ones to be vaccinated when they're receiving care, that somehow renders the policy not generally applicable. I think the court should reject that principle. [00:42:35] Speaker 04: In the Cain Court in the Second Circuit, which rejected the same kind of analogy with respect to a student vaccination mandate where bus drivers and visitors didn't have to be vaccinated, Cain wrote, no court has ever hinted that a law must apply to all people everywhere at all times in order to be generally applicable. [00:42:53] Speaker 04: It can apply to employees and other comparable employees, and that's enough. [00:42:59] Speaker 04: My colleague mentioned the Novavax vaccine. There's nothing in the record to suggest that the Novavax vaccine would be acceptable to any of the plaintiffs here, nor did any of the plaintiffs here in their declarations suggest that their opposition to COVID vaccines have changed. So the idea of there needs to be a temporary accommodation for religious objectors just doesn't apply to their particular cases. [00:43:22] Speaker 04: I think I would just close by emphasizing, as the court did in Peterson, that the pandemic forced the state to make decisions very quickly and with limited information. The university relied on the scientific information then available and acted in the best interests of its employees and of the community. And for that reason, we believe that there is an undue hardship. The WLAD claim fails, and for many of the reasons discussed earlier, the free exercise claim also fails as a matter of law, and the court should affirm the court below. [00:43:52] Speaker 04: Thank you. Thank you. [00:43:55] Speaker 05: Got a minute for rebuttal? [00:43:57] Speaker 05: Not that we've ever allowed you to stay within that. [00:44:02] Speaker 03: Talk really, really fast. So, Your Honor, on Peterson and Williams, accepting the premise that a substantial increase in infection or transmission rate can be an undue hardship, taking that premise is accepted. The university explicitly and affirmatively decided to turn a blind eye to that undue hardship When it came to its secular objecting population and explicitly foreclosed that same pathway to retain their employment for its religious population. [00:44:37] Speaker 03: So even if we assume that premise and we set aside the fact that Williams and, and Peterson that matter were decided without. [00:44:43] Speaker 05: Rich doesn't go to that fact. [00:44:45] Speaker 03: No, your honor. It doesn't. And that's the distinction between the title seven issues that were decided in Williams and the free exercise issues. which we have undue hardship here as well, but focusing specifically on free exercise. [00:44:58] Speaker 03: If we accept that the university was correct in analyzing that it was an undue hardship to allow anyone to work unvaccinated, they cannot then explain why they allowed people with secular objections to continue working unvaccinated. That is treating the same conduct that undercuts the compelling government interest worse for no other reason than this group of people being in a religious class so that's why williams does not affect and in fact i would argue accentuates the free exercise issue here but wasn't the same issue you're saying the same issue wasn't raised in williams the discrimination i'm saying that even if we assume i don't believe it was wrong i think that was strictly a tell us in which but even if we assume we we accept the premise that an unvaccinated worker poses an undue hardship. [00:45:53] Speaker 03: The university still cannot square how its explicit policy, its communications from HR, said we're going to accept that undue hardship. It could be an undue hardship, but we're going to accept it, but only if you have a secular objection, not if you have a religious one. I don't think that passes scrutiny. [00:46:12] Speaker 03: Your Honor. [00:46:14] Speaker 03: There's been some anecdotal evidence about Dr. Risch being excluded from other cases. Strandquist was one that was listed by counsel. [00:46:22] Speaker 03: Dr. Risch testified to the jury in Strandquist. I was there. [00:46:26] Speaker 03: So we can't really accept, I don't think, anecdotal examples. [00:46:30] Speaker 05: Sounds like even if you were to win and we were to remand or reverse, they're still going to go through a Dalbert hearing for Dr. Risch. Either way, right? [00:46:43] Speaker 03: I would assume they would. And I don't think that's dispositive, though, of, on this record, the expert opinions that were competing before the court and the court below electing to take the move inside. [00:46:58] Speaker 00: If we find that that creates a genuine issue of material fact. [00:47:03] Speaker 03: If it creates, yes, Your Honor, if it creates a genuine issue of material fact, then summary judgment should not have rendered in the movement's favor, excuse me. To Judge Clifton's point, he mentioned one of the individuals in our group spending 20% of his time on a small boat. I don't believe that's what the record actually reflects. [00:47:20] Speaker 00: He was on the research vessels that the university operates for NOAA, right? That's what we're talking about. [00:47:27] Speaker 03: That is correct, Your Honor. But if we look at the declarations submitted by Mr. Avery Snyder, I think you will see that there is a very stark difference between what the HR individual who submitted a declaration on behalf of the university said Mr. Snyder's job was and what Mr. Snyder said his job was. [00:47:47] Speaker 00: You're not quarreling with the fact that the billeting in those research vessels is in very close quarters. [00:47:55] Speaker 03: I would not quarrel with the billeting, but I would quarrel. I guess this is an illustration of error by the district court to have accepted the facts of the movement is true and then ultimately rendering summary judgment in the movement. [00:48:10] Speaker 00: But you're not disputing the close quarters, which, as I understood it from reading the record, was the basis. for the decision that that person posed a risk to coworkers if he or she was not vaccinated. [00:48:27] Speaker 03: I would agree that that is a fair... I agree that HR from the university submitted a declaration to that effect. Okay. [00:48:37] Speaker 06: I would suggest, Your Honor, that the... I'm looking at your brief, and I don't see discussion of individual employment circumstances. I see... much broader attacks, you're now suggesting that maybe employee 21 should be treated differently. Where in your brief do you make that argument? [00:48:56] Speaker 03: Your Honor, that's not exactly the point that I'm trying to make, so I'm sorry I'm doing it inarticulately. [00:49:02] Speaker 03: My point is that one of the fundamental flaws below was an acceptance of the university's version of facts as the movement, as illustrated by Mr. Snyder when you contrast his declaration. [00:49:14] Speaker 01: And you don't talk about that in your brief, do you? That's correct, Your Honor. [00:49:18] Speaker 03: Your comment triggered it in my mind. [00:49:20] Speaker 06: I mean, that's fine. But if there's a reason you argue this person should be treated differently, we would expect to see that argument. And now you're suggesting kind of a lie. [00:49:31] Speaker 03: And, Your Honor, I don't think what I'm arguing is that this specific person should be treated differently. It's an illustration of what we assign error to below, and that is a district court accepting the movements version of the facts across the board. [00:49:44] Speaker 06: Oh, no, because— Either way, there's close quarters. You're quarreling perhaps with the accommodation decision. We've heard, and I assume is the case, that where you could accommodate an employee with a religious exemption because they can work remotely, employee 21 isn't working remotely. Now, he may be arguing that there are other things that could be done that would prevent transmission, but that isn't accepting... [00:50:13] Speaker 06: the university's version of facts, that's accepting the fact that he can't work remotely. [00:50:21] Speaker 01: I think that would be... And you're not contesting that. [00:50:26] Speaker 01: For that specific individual... [00:50:29] Speaker 03: I actually don't know the answer to that because I don't think the discussion was had with him. So I actually can't answer that one way or the other, Your Honor. [00:50:35] Speaker 05: But more fundamentally – You agree at the end of the day. We're stuck with the record that's before us. [00:50:40] Speaker 03: Yes, Your Honor. [00:50:40] Speaker 05: The arguments that you made. Yes, of course, Your Honor. I think we've got that in spades. And so with that, I think we're going to go ahead and close out this great series of cases. Thank you for the colloquy. It's been very helpful on all three cases. This case is now submitted. and we are going to take a short five-minute recess while we reset our brains out of the COVID vaccine cases and come back and hear our final case for the day. Thank you all.