Family Medicine Expert Witness’ Testimony Violates the Basic Requirement of Rule 26
Posted on March 13, 2025 by Expert Witness Profiler
On July 22, 2022, Dr. Gregory Fox, individually and as parent of C.F., and Rita Fox, individually and as parent of C.F. (jointly, the Plaintiffs), filed a lawsuit challenging the state of Maine’s public school vaccination requirements.
Dr. Stephen B. Paulding, a board-certified family physician with over four decades of experience in primary care was presented as an expert witness by Dr. Gregory Fox. Department of Education Commissioner Pender Makin moved to exclude Paulding’s testimony comparing the risk of disease transmission by vaccinated and unvaccinated individuals pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702, asserting Paulding did not prepare his report, his testimony would not aid the trier of fact, and his opinions are not based on reliable methodology or support.
Initially, the Court reviewed the submitted materials and, ultimately, concluded that the expert’s opinions did not align with established federal rules, necessitating their exclusion. Notably, the Court determined that Paulding’s expert report was not prepared by him, as required by Federal Rule of Civil Procedure 26(a)(2)(B). Instead, it was found that the report was drafted by Attorney Stephen Whiting, with Paulding merely signing it, a highly unusual circumstance that led to the exclusion of the expert’s testimony.
Family Medicine Expert Witness
Dr. Stephen Paulding earned his medical degree from Boston University Medical School in 1971, following a Bachelor of Science degree from Houghton College. His postgraduate training included an internship and residency from 1971 to 1973, after which he served in the United States Air Force Medical Corps from 1973 to 1974.
From 1974 until his retirement in 2016, Dr. Paulding maintained a private family medicine practice, providing comprehensive medical care across all age groups in Cumberland and Portland, Maine. His practice included routine office visits, house calls, and nursing home care, reflecting a commitment to patient accessibility and continuity of care.
Discussion by the Court
To begin with, the Court investigated Commissioner Makin’s claim that Whiting authored the report. Furthermore, a thorough review of the deposition revealed that Paulding himself admitted, under direct questioning, that Whiting had drafted the report, and he simply agreed with it. Moreover, neither the attorney nor Fox were able to elicit contradictory testimony during subsequent questioning. In addition, the deposition revealed that Whiting also provided all the medical articles appended to the report, and that Paulding had not thoroughly reviewed them. Therefore, the Court concluded that Whiting wrote the report and supplied the supporting articles, a finding compelled by Paulding’s own deposition testimony.
Legal Implications of an Attorney-Authored Expert Report
Consequently, the Court addressed the legal implications of an attorney-authored expert report. Indeed, federal district courts in other circuits have uniformly disapproved of expert testimony revealed to be the exclusive product of counsel. Thus, the Court agreed with Commissioner Makin’s assertion that the report’s preparation violated Rule 26, which explicitly requires a report “prepared and signed by the witness.” Specifically, since Paulding did not prepare the report, it did not comply with this rule. Furthermore, the Court emphasized the clear distinction between an attorney editing an expert report for form or clarity and an attorney writing the report for the expert, concluding that Whiting had crossed this line.
Additionally, the Court rejected Fox’s argument that the challenge was untimely, as the discovery period concluded on July 19, 2024, and Paulding’s deposition at which Whiting’s authorship became clear was not held until July 8, 2024, leaving Defendants very little time to raise this issue within the discovery period.
Also, the Court affirmed that challenging the report at the Daubert stage was appropriate, as it pertained to the reliability of the testimony. Finally, based on Paulding’s uncontroverted testimony and the clear violation of Rule 26, the Court granted Commissioner Makin’s motion to exclude the expert’s testimony.
Held
The Court granted Defendant Pender Makin’s motion to exclude the testimony of Dr. Stephen Paulding.
Key Takeaway:
- Expert reports must be the product of the expert’s own work and analysis, not that of their attorney. Having an attorney draft the report fundamentally undermines the expert’s role and the integrity of their testimony.
- A mere “signing off” on a report written by someone else is insufficient. The expert must actively participate in the report’s creation, demonstrating their understanding and endorsement of its contents.
Please refer to the blog previously published about this case:
Pediatrics Expert’s Opinion Regarding a Target 95% Vaccination Rate Met the Daubert Bar
Case Details:
| Case Caption: | Fox Et Al V. Makin Et Al |
| Docket Number: | 2:22cv251 |
| Court: | United States District Court, Maine |
| Order Date: | March 10, 2025 |
