Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 1 of 27 PageID #: 32067
`Case 5:19-cv-00036—RWS Document 629-1 Filed 02/17/21 Page 1 of 27 PageID #: 32067
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`EXHIBIT 1
`EXHIBIT 1
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`

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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 2 of 27 PageID #: 32068
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`CASE NO. 5:19-CV-00036-RWS
`
`DECLARATION OF BENJAMIN NEUMAN, PH.D. IN SUPPORT OF
`DEFENDANT APPLE INC.’S MOTION TO STAY PENDING POST-GRANT
`REVIEW PROCEEDINGS AT THE PATENT OFFICE AND TO CONTINUE
`TRIAL DUE TO THE COVID-19 PANDEMIC
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`
`1.
`
`I am a professor of biology and chief virologist for the Global Health
`
`Research Complex at Texas A&M University since January 2021, and a visiting research
`
`scientist at Texas A&M-Texarkana, where I was formerly a professor of virology and Chair
`
`of Biological Sciences from 2016 to 2021. In this position, I spend most of my time doing
`
`research on emerging viruses, virus structure, how viruses behave in the environment, how
`
`viruses affect cells, and antiviral discovery and testing. I have taught virology, immunology
`
`and synthetic biology at the undergraduate and graduate level. I frequently appear on news
`
`TV, radio and print media helping to explain new developments in infectious disease; since
`
`2015 my work in the media has appeared in at least 121 countries, translated into 37
`
`languages.
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 3 of 27 PageID #: 32069
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`2.
`
`I received my B.S. in Biology from the University of Toledo in 1997, and my
`
`Ph.D. in Biological Sciences from the University of Reading in the United Kingdom in 2001.
`
`After completing my Ph.D., I was a postdoctoral fellow and then assistant professor at The
`
`Scripps Research Institute in La Jolla, California. Following that, I was a lecturer and then an
`
`associate professor of virology at the University of Reading. I have remained a visiting
`
`professor of virology at the University of Reading since that time.
`
`3.
`
`I have studied coronaviruses for 25 years, and published more than 50 articles
`
`on the subject. I am also part of the international committee that named SARS-CoV-2, the
`
`virus behind the COVID-19 pandemic. I have also authored or co-authored more than 20
`
`peer-reviewed research articles on other topics related to viruses, virus structures, virus
`
`behavior in the environment, antivirals, and virus discovery.
`
`II.
`
`STATE OF COVID-19 IN THE UNITED STATES, TEXAS, AND TEXARKANA
`AND THE SURROUNDING AREA
`
`4.
`
`As of February 17, 2021, there have been a total of 27,542,421 reported
`
`COVID-19 cases in the United States, with more than 56,000 cases in the past week alone.
`
`https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days. The total COVID-
`
`19 deaths in the United States as of that same date is 485,070, with 1,217 deaths in the past
`
`week. https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days.
`
`5.
`
`As of February 17, 2021, in Texas there have been a total of 2,579,644
`
`COVID-19 cases and 41,652 deaths. https://www.worldometers.info/coronavirus/usa/texas/.
`
`In Bowie County, as of that same date, there have been 6,370 cases and 171 deaths.
`
`https://www.worldometers.info/coronavirus/usa/texas/. However, 13.6% of COVID-19 tests
`
`in Bowie County are positive, indicating that a majority of cases are going undetected
`
`https://covidactnow.org/us/texas-tx/county/bowie_county/?s=1598540. In the other three
`
`2
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 4 of 27 PageID #: 32070
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`counties from which the Texarkana Division draws jurors—Titus, Red River, Franklin—the
`
`total cases as of February 12, 2021 are 4,858 and the total deaths are 129.
`
`https://www.worldometers.info/coronavirus/usa/texas/. If the area is expanded to a 75-mile
`
`radius around Bowie County, the numbers increase to more than 84,000 cases and nearly
`
`2,000 deaths. Exhibit A, Situational Report for Bowie County.
`
`6.
`
`My understanding is that the case of Maxell, Ltd. v. Apple Inc. was originally
`
`scheduled for trial on December 7, 2020, and that on November 12, 2020, the trial was
`
`continued to March 22, 2021. There has been a tremendous surge in cases and deaths in the
`
`three months since the trial was continued. COVID-19 cases in the United States, Texas,
`
`and the relevant counties in Texas have nearly tripled, and the total COVID-19 deaths have
`
`nearly doubled. As of November 12, 2020, the total number of cases in the United States
`
`was more than 10.9 million, with over 250,000 deaths.
`
`https://www.worldometers.info/coronavirus/country/us/. The following graphs show the
`
`changes since November 12, 2020, in total U.S. COVID-19 cases, the daily new COVID-19
`
`cases in the U.S., the total COVID-19 deaths in the U.S., and the daily new deaths in the
`
`U.S.:
`
`3
`
`

`

`Case 5:19-cv-00036—RWS Document 629-1 Filed 02/17/21 Page 5 of 27 PageID #: 32071
`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 5 of 27 PageID #: 32071
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`Case 5:19-cv-00036—RWS Document 629-1 Filed 02/17/21 Page 6 of 27 PageID #: 32072
`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 6 of 27 PageID #: 32072
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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 7 of 27 PageID #: 32073
`
`https://www.worldometers.info/coronavirus/country/us/. In addition, the COVID-19
`
`hospitalization rate in the U.S. is at roughly the same level that it was in November:
`
`https://covidtracking.com/data/charts/us-currently-hospitalized.
`
`7.
`
`The trends in Texas as a whole and East Texas mirror that of the U.S. over
`
`that time. In Texas as of November 12, 2020, the total number of cases was approximately
`
`10 million and the number of deaths was more than 21,069.
`
`6
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 8 of 27 PageID #: 32074
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`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyCaseCountData.xlsx;
`
`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyFatalityCountData.xlsx.
`
`The following graphs show the changes since November 12, 2020, in total Texas COVID-
`
`19 cases, the daily new COVID-19 cases in Texas, the total COVID-19 deaths in Texas,
`
`and the daily new deaths in Texas:
`
`7
`
`

`

`Case 5:19-cv-00036—RWS Document 629-1 Filed 02/17/21 Page 9 of 27 PageID #: 32075
`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 9 of 27 PageID #: 32075
`
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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 10 of 27 PageID #: 32076
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`https://www.worldometers.info/coronavirus/usa/texas/. In addition, the COVID-19
`
`hospitalization rate in the Texas is at roughly the same level that it was in November when
`
`the trial was continued:
`
`9
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 11 of 27 PageID #: 32077
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`https://covidtracking.com/data/charts/daily-cases-and-currently-hospitalized.
`
`8.
`
`In Bowie County as of November 12, 2020, the total number of cases was
`
`2,294 and the total number of deaths was 98.
`
`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyCaseCountData.xlsx;
`
`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyFatalityCountData.xlsx.
`
`And in Titus, Red River, and Franklin Counties, the total cases as of November 12, 2020
`
`was 2,111 and the total number of deaths was 67.
`
`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyCaseCountData.xlsx;
`
`https://dshs.texas.gov/coronavirus/TexasCOVID19DailyCountyFatalityCountData.xlsx.
`
`9.
`
`In recent weeks, Texas has seen COVID-19 hospitalizations and cases trend
`
`downward after a holiday season marked by a record-breaking surge. New cases and
`
`hospitalizations remain high, however.
`
`10.
`
`New COVID-19 variants have recently been discovered in the U.S., which
`
`could affect the number of cases and infection rate in the coming weeks and months. One
`
`such variant, known as B.1.1.7, was first identified in Britain.
`
`https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/scientific-brief-
`
`10
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 12 of 27 PageID #: 32078
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`emerging-variants.html. The CDC has warned that this is a more contagious variant of the
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`coronavirus, and could become the dominant source of infections in the United States by
`
`March 2021, potentially leading to another surge in cases around the country.
`
`https://www.nytimes.com/2021/01/15/health/covid-cdc-variant.html. In making that
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`warning, the CDC stressed that it is “deeply concerned that this strain is more transmissible
`
`and can accelerate outbreaks in the U.S. in the coming weeks.” Id.
`
`11.
`
`Another such variant, known as B.1.351 and discovered in South Africa, was
`
`recently identified in two people in the Bay Area of California.
`
`https://www.latimes.com/california/story/2021-02-11/south-african-covid-variant-
`
`california-what-to-know; https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-
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`research/scientific-brief-emerging-variants.html.
`
`12.
`
` I understand that many of Apple’s counsel, witnesses, and client
`
`representatives in this case live and work in the Bay Area. Also, the limited amount of
`
`genome sequencing in most parts of the United States suggests that each of these variants
`
`may be more widespread than we are aware at the current time.
`
`13.
`
`Texas began administering the Moderna and Pfizer COVID-19 vaccines in
`
`December 2020. As of a few weeks ago, Texas had administered more doses than any other
`
`state, according to the CDC. Texas was the first state to administer 1 million COVID-19
`
`vaccines.
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`https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2021/press01142021_vaccine.pdf.
`
`Texas has administered nearly half of the more than two million doses it has received so far,
`
`putting it in the top 20 states for percentage of doses administered.
`
`https://covid.cdc.gov/covid-data-tracker/#vaccinations;
`
`11
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 13 of 27 PageID #: 32079
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`https://www.texastribune.org/2021/01/14/texas-coronavirus-vaccine-one-million/. And
`
`Texas is expected to receive an additional 407,650 first doses of the Moderna and Pfizer
`
`COVID-19 vaccine from the federal government this week.
`
`https://www.kxan.com/news/coronavirus/texas-to-get-more-than-400000-first-doses-of-
`
`covid-19-vaccine-for-week-of-feb-15/.
`
`14.
`
`In Bowie County, 5.4% of the vaccine-eligible population has received one
`
`or more doses of the Moderna or Pfizer COVID-19 vaccine so far, and 2.7% are fully
`
`vaccinated. Exhibit A, Situational Report for Bowie County. Numbers in surrounding
`
`counties are similar. Id.
`
`15.
`
`It was recently announced that CHRISTUS St. Michael Health System was
`
`named as a COVID-19 Vaccination Hub by the State of Texas to serve the Texarkana
`
`region, which will accelerate the vaccination numbers in Bowie County and the
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`surrounding areas. https://www.christushealth.org/st-michael/about-us/news/2021/regional-
`
`covid-19-vaccination-hub.
`
`16.
`
`Vaccination rates will also increase in these areas, as well as around the
`
`country, as the Moderna and Pfizer vaccine supply continues to increase. Just last week, it
`
`was announced that the United States had secured an additional 200 million doses of the
`
`Moderna and Pfizer vaccines. https://www.wsj.com/articles/biden-says-u-s-struck-deals-
`
`for-200-million-more-covid-19-vaccine-doses-11613080885. It is expected that by Fall
`
`2021, most people in the United States who want the Moderna or Pfizer COVID-19 vaccine
`
`will be able to get it. https://news.harvard.edu/gazette/story/2020/12/anthony-fauci-offers-
`
`a-timeline-for-ending-covid-19-pandemic/. It is also likely that one or more of the
`
`investigational vaccines to report positive interim results from ongoing Phase 3 clinical
`
`12
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 14 of 27 PageID #: 32080
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`trials, namely Johnson & Johnson, Novavax, Sanofi and AstraZeneca is likely to be
`
`approved in the coming weeks, further increasing the available vaccine supply in the United
`
`States.
`
`III.
`
`THE RISKS OF A MARCH 22, 2021 JURY TRIAL IN TEXARKANA
`
`17.
`
`I understand that trial in this case is now scheduled to begin on March 22,
`
`2021 in the federal courthouse in Texarkana, Texas. I understand the trial will be
`
`conducted over nine days before a jury of eight jurors. The trial day will last from
`
`approximately 9 am to 5 pm, and will include breaks. I understand that the courthouse
`
`likely does not have a modern ventilation system equipped to deal with infectious diseases
`
`such as COVID-19. I further understand that at least 15 witnesses will testify in the
`
`courtroom during the nine days of trial, and that most or all of these witnesses will travel
`
`from some other part of the country or the world to testify.
`
`18.
`
`I further understand that, similar to a trial in late 2020 in the VirnetX Inc. v.
`
`Apple Inc. matter, the jurors will likely be selected on March 22, 2021 from a group of as
`
`many as 50 potential jurors. Those jurors will be summoned to the courthouse for jury
`
`service. Those potential jurors will be drawn from four counties—Bowie, Red River, Titus,
`
`and Franklin. I further understand that Maxell and Apple will have approximately eight
`
`attorneys, paralegals, or other representatives in the courtroom each day during the trial.
`
`Many, but likely not all, of those attorneys and other representatives will be the same from
`
`day to day. I am informed that others in the courtroom will include (a) the presiding judge,
`
`(b) the presiding judge’s courtroom deputy, (c) two court reporters who will rotate; and (d)
`
`from time to time, a federal marshal.
`
`19.
`
`Therefore, at any given time, there will be around 30 people in the
`
`courtroom during trial. All people in the courtroom will wear masks, with the exception of
`
`13
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 15 of 27 PageID #: 32081
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`the witness and the attorney who is asking questions of the witness. Furthermore, I
`
`understand that each party will be supported by a team who will likely number more than 15
`
`attorneys, paralegals, and client representatives per side. Those in the courtroom will return
`
`after court each day to work with others on the trial team to prepare for the next day of trial.
`
`20.
`
`I understand that the attorneys, paralegals, witnesses, and client
`
`representatives will travel to Texarkana, Texas from a variety of locations throughout the
`
`United States, including at least San Francisco and Silicon Valley, California; San Diego,
`
`California; Los Angeles, California; Chicago, Illinois; Washington, D.C.; Austin, Texas; and
`
`Houston, Texas; as well as Japan.
`
`11.
`
`I have been asked whether, in my expert opinion as a virologist, this trial
`
`would pose any meaningful risk to the participants, the local community, or public safety
`
`in general given the current situation with the COVID-19 pandemic, and, if so, to explain
`
`why.
`
`12.
`
`COVID-19 is a very dangerous illness, and we are still learning about the
`
`long term damage it causes. The mechanism of disease appears to be a cytokine storm –
`
`an abnormal and self-amplifying malfunction of the immune system that causes damage
`
`throughout the body – similar to the mechanism Ebola fever or H5N1 Avian influenza,
`
`but quite different from the typical mild and localized disease progression in a common
`
`cold or seasonal influenza. Nationally, the rate of death from COVID-19 is
`
`approximately 1.7%, and more than 473,000 deaths in the United States have been
`
`attributed to COVID-19 since March 2020. https://coronavirus.jhu.edu/data/mortality;
`
`https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days. The rate of
`
`death increases steadily with age and other risk factors such as underlying medical
`
`14
`
`

`

`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 16 of 27 PageID #: 32082
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`conditions. Even for those who do not die from COVID-19, many become severely ill
`
`and hospitalization is often required. Currently in Texas, just under 10,000 people are
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`hospitalized with COVID-19. https://www.khou.com/article/news/local/texas/texas-
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`covid-hospitalizations-record-houston-harris-county/285-2549ca26-ebf6-40e0-b29e-
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`e4c945e08a50. Studies have also shown evidence of long-term damage to the heart, even
`
`in college athletes, and in cases that were reported to be asymptomatic.
`
`https://jamanetwork.com/journals/jamacardiology/fullarticle/2768916;
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`https://www.jacc.org/doi/10.1016/j.jcmg.2020.10.023.
`
`13.
`
`In my opinion as a virologist who has studied coronaviruses for 25 years,
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`and who has spent considerable amount of time studying SARS-CoV-2 over the past year,
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`COVID-19 is a multi-layered threat to health and life that would pose an extraordinary risk
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`to those people who would be involved in a trial in Texarkana starting March 22, 2021, as
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`well as to the surrounding community and the communities to which the participants would
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`return.
`
`14.
`
`Treating COVID-19 patients is extremely challenging. While many
`
`recover enough from COVID-19 infection to return home from the hospital, the extent of
`
`recovery varies and serious long-term, even permanent, effects are now starting to be
`
`known. It appears that many people continue to suffer from heart, lung, kidney, brain, and
`
`other organ ailments after they are no longer positive for the SARS-CoV-2 virus, and
`
`some patients may remain impaired for the rest of their lives.
`
`https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-
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`term-effects/art-20490351.
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`15
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`13.
`
`One of the reasons that COVID-19 can spread so fast is that it is carried and
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`efficiently transmitted to others by people who are asymptomatic; that is, people who show
`
`no signs of the illness and feel perfectly fine. Infected people are most infectious in the
`
`two days before the first symptoms appear and for the first several days after the first
`
`symptoms appear, when the symptoms are still mild and may be mistaken for some other
`
`mild illness or even disregarded entirely. Even more dangerous is the fact that more than
`
`half of people who are infected never show any signs or symptoms of infection and yet
`
`may spread it to others without knowing it.
`
`https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2774707?utm_source=For
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`_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=010721. In
`
`fact, many experts, myself included, believe that most infections are transmitted by people
`
`who at the time do not know they are infected. These infection transmitters will pass
`
`temperature screens and will honestly answer in the negative to a symptom screen.
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`Absent a test, there is no way to identify COVID-19 carriers who are asymptomatic, and
`
`we know that even our best tests have significant rates of false-negative results, varying
`
`by the particular test, in which they fail to detect an infection that is present and possibly
`
`capable of being transmitted.
`
`16.
`
`COVID-19 is extremely contagious. There is a consensus among medical
`
`professionals that bringing together people in groups significantly increases the risk of
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`COVID-19 transmission, and the larger the group, the greater the risk of transmission. It has
`
`also been reported, based on incidence rates in Europe, that the new variants including
`
`B.1.1.7 and B.1.351 are considerably more infectious compared to older circulating variants
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`of SARS-CoV-2. https://www.bbc.com/news/health-55507012.
`
`16
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`17.
`
`The CDC has published guidelines on group gatherings:
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`https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-
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`gatherings.html. One of the “guiding principles” that the CDC provides is the following: “The
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`more people an individual interacts with at a gathering and the longer that interaction lasts, the
`
`higher the potential risk of becoming infected with COVID-19 and COVID-19 spreading.”
`
`Consistent with those guidelines, on January 20, 2021, President Biden issued an Executive Order
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`mandating social distancing and mask wearing for all persons in Federal building.
`
`https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-
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`protecting-the-federal-workforce-and-requiring-mask-wearing/.
`
`18.
`
`Even mask wearing is not enough to protect from infection when multiple people
`
`are in a confined space, as in a case in Vermont where a correctional worker who was wearing a
`
`mask contracted the virus after multiple short exposures to infected inmates.
`
`https://www.cdc.gov/mmwr/volumes/69/wr/mm6943e1.htm.
`
`19.
`
`In my opinion, a nine-day indoor trial in Texarkana would fall into the category
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`the CDC describes as the “highest risk”: “Large in-person gatherings where it is difficult for
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`individuals to remain spaced at least 6 feet apart and attendees travel from outside the local
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`area.”
`
`20.
`
`It is my opinion that in a group of the size expected at trial, given the present state
`
`of the COVID-19 pandemic in Bowie County and the other surrounding counties in which the
`
`potential jurors reside, there is a high likelihood that several would be carrying the SARS-CoV-2
`
`virus that causes COVID-19, and they would be capable of transmitting it to others, most likely
`
`while they are asymptomatic. In Bowie County, 1 out of 15 residents have tested positive for
`
`COVID-19. See Exhibit A, Situational Report for Bowie County. When looking at the area
`
`17
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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 19 of 27 PageID #: 32085
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`within a 75-mile radius of Bowie County (I would expect that many of the potential jurors either
`
`live within this expanded area or interact with others who live within that area), that number
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`increases to 1 out of 12. Id. Moreover, these numbers do not account for untested cases
`
`(including of asymptomatic but infected individuals who have not sought testing), and it is well
`
`known that COVID-19 can by spread by persons without any symptoms. According to the
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`“COVID-19 Event Risk Assessment Planning Tool” published by researchers at Georgia Tech,
`
`there is a 71% likelihood of at least one person having COVID-19 from a group of around 100
`
`people gathered in Bowie County. Chande, A.T., et al., Interactive COVID-19 Event Risk
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`Assessment Planning Tool, https://covidl9risk.biosci.gatech.edu (last visited on February 17,
`
`2021). The numbers for Franklin, Red River, and Titus counties are similar. Id.
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`18.
`
`I further understand that even after the jury is selected, the trial would
`
`continue to require a significant group of people to remain together in an enclosed indoor
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`space, with witnesses and most of the attorneys and client representatives having come from
`
`outside the local area. Furthermore, a courtroom in a courthouse without modern ventilation
`
`is an environment that would present a higher risk of COVID-19 transmission. Not only
`
`would it be challenging to maintain social distance, but a trial, by its very nature, involves a
`
`large amount of speaking. That would include jurors speaking during deliberations, which I
`
`understand often take place in an enclosed space that is smaller than a courtroom and in
`
`which social distancing may not be possible. Speaking is one of the main ways that
`
`COVID-19 is transmitted from person to person, because COVID-19 spreads by aerosols.
`
`In other words, COVID-19 can be transmitted in the air after a person speaks or breathes
`
`https://www.nature.com/articles/s41591-020-0843-2. There is now strong evidence that
`
`COVID-19 remains in the air, in imperceptible aerosol form, after a person speaks.
`
`18
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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 20 of 27 PageID #: 32086
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`https://www.pnas.org/content/117/22/11875. The length of time that such particles remain
`
`in the air varies, but is longer in an enclosed indoor space with less ventilation than
`
`outdoors. Moreover, I understand that litigation teams in cases like this also need to work
`
`together in workspaces outside of court, and those interactions could also lead to disease
`
`transmission.
`
`19.
`
`I believe the risk of transmission is made worse because most of the attorneys,
`
`client representatives, and witnesses who will be participating in the trial will travel from
`
`outside the local area. I understand that many of the participants reside in large cities, such as
`
`Los Angeles and San Francisco, that have high COVID-19 infection rates. And they will
`
`mostly be traveling through some of the busiest airports in the country to reach Texarkana,
`
`including Dallas-Fort Worth. The CDC has continued to caution against air travel, warning
`
`that “social distancing is difficult on crowded flights, and sitting within 6 feet of others,
`
`sometimes for hours, may increase your risk of getting COVID-19.”
`
`https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-
`
`covid19.html#:~:text=Travel%20increases%20your%20chance%20of%20spreading%20and
`
`%20getting%20COVID%2D19,and%20others%20from%20COVID%2D19.
`
`20.
`
`In my expert opinion, even though certain precautions may be taken to lower
`
`the chance of spreading the virus, you cannot eliminate the risk of an asymptomatic outsider
`
`unknowingly bringing COVID-19 to Texarkana, such as by contracting it en route. Because
`
`COVID-19 can be transmitted asymptomatically, temperature and symptom screenings are
`
`not effective, and if even one person has it, then everyone is at risk of infection, including
`
`everyone in the courtroom, the courthouse, and the parties’ hotels and conference rooms.
`
`Rapid tests like the Binaxnow rapid COVID antigen test are available, but are considerably
`
`19
`
`

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`less sensitive than the standard nose or cheek swab PCR test, giving false negative results
`
`for 35.8% of symptomatic patients and 64.2% of asymptomatic patients.
`
`https://www.cdc.gov/mmwr/volumes/70/wr/mm7003e3.htm. SARS-CoV-2 makes about
`
`10,000 non-infectious “dud” virus particles per infectious virus particle
`
`https://www.nature.com/articles/s41586-020-2895-3. The lower limit of detection for the
`
`Binaxnow rapid antigen test is equivalent to 140.6 infectious particles, roughly equivalent to
`
`1.4 million total virus particles. https://www.fda.gov/media/141570/download. Nose or
`
`cheek swab PCR tests are able to detect a lower limit of 100 total virus particles.
`
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7302192/. Therefore, the best available
`
`rapid antigen test is around 14,000 times less sensitive than a standard PCR test.
`
`Unfortunately, PCR tests currently have to be shipped out of Texarkana for processing, and
`
`have around a three-day wait for results under the best conditions. The combination of
`
`delay and decreased sensitivity of rapid COVID-19 tests creates a risk of spreading the
`
`disease throughout the Texarkana community, in addition to potentially inadvertently adding
`
`strains from other parts of the country to the locally circulating virus population. Any
`
`increases in the infection rate in the Texarkana area could further strain local hospitals and
`
`harm the local economy, and stretch the resources of East Texas and surrounding
`
`metropolitan areas.
`
`21.
`
`In November 2020, even with precautions taken such as masks and social
`
`distancing, 13 trial participants at a trial in the federal courthouse in Sherman, Texas tested
`
`positive for COVID-19 during trial.
`
`https://www.heralddemocrat.com/story/news/2020/11/18/judge-halts-fed-jury-trials-
`
`sherman-amid-covid-19-concerns/3765209001/.
`
`20
`
`

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`Case 5:19-cv-00036-RWS Document 629-1 Filed 02/17/21 Page 22 of 27 PageID #: 32088
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`22.
`
`A recent conference of entrepreneurs, executives and investors attempted to
`
`create an “immunity bubble” at a conference by repeatedly testing the 80 attendees who had
`
`traveled from various parts of the country to take part. The conference host and 23 other
`
`guests caught COVID-19 during the event despite collecting over 450 negative COVID-19
`
`tests from attendees. https://www.nytimes.com/2021/02/16/us/peter-diamandis-covid-
`
`ca.html.
`
`23.
`
`Based on the information presented above, in my expert opinion, proceeding
`
`with a trial in Texarkana on March 22, 2021 is very likely to cause transmission of the
`
`SARS-CoV-2 virus to the participants, the local community, and the communities to which
`
`the trial participants return after the trial is over.
`
`24. While East Texas and the United States as a whole are still recovering from
`
`the worst surge of coronavirus cases documented anywhere in the world, there is cause for
`
`optimism about the return of safe indoor gatherings, if progress in increased testing and
`
`reduced coronavirus transmission can be maintained. Positive cases across Texas and
`
`America are decreasing at the moment. Test positivity rates in Bowie county are also down
`
`by about a third from the early January holiday surge, suggesting the number of
`
`undocumented infections is decreasing.
`
`25.
`
`From a virological perspective, I strongly urge that the trial be postponed to a
`
`date when vaccines are available to all of the trial participants who want to receive it and the
`
`current high infection risk has largely subsided. The risks posed by proceeding with a trial
`
`now are substantial.
`
`I declare under the laws of the United States of America that the foregoing is true
`
`and correct.
`
`21
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