FOX v. MAKIN

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

GREGORY FOX, individually )

and as Parent of C.F., )

)

Plaintiff, )

)

v. ) No. 2:22-cv-00251-JAW

)

PENDER MAKIN, in her official )

capacity as Commissioner, et al., )

)

Defendants. )

ORDER ON MOTION TO EXCLUDE EXPERT TESTIMONY OF DR.

STEPHEN PAULDING

In a suit challenging the state of Maine’s public school vaccination

requirements, the defendant moves to exclude the testimony of the plaintiff’s expert

on the grounds that his expert report was prepared by counsel and lacks the support

required under Federal Rule of Evidence 702. The plaintiff opposes exclusion of his

expert, arguing his expert based his opinions on his medical experience and common

sense. After scrutinizing the record, the court finds that the expert’s report in this

case was written, not by the expert, but by the plaintiff’s former attorney, and that

the articles appended to the expert report were supplied, not by the expert, but by

the attorney. In this unique situation, the court excludes the expert’s testimony

because it violates the basic requirement of Federal Rule of Civil Procedure

26(a)(2)(B) that an expert witness’s written report must be prepared by the witness.

I. PROCEDURAL HISTORY

On July 22, 2022, Dr. Gregory Fox, individually and as parent of C.F.,1 and

Rita Fox, individually and as parent of C.F. (jointly, the Plaintiffs), filed a lawsuit in

the Cumberland County Superior Court for the state of Maine against the state of

Maine, the Maine Department of Education, Maine School Administrative District

(MSAD) 51, and various state and local officials (collectively, the Defendants),

alleging the Defendants violated the United States Constitution in promulgating and

implementing a vaccination policy at MSAD 51. Notice of Removal, Attach. 1, Compl.

(ECF No. 1). The Defendants initially identified themselves as two groups: the State

Defendants (the state of Maine, the Maine Department of Education, and Maine

Department of Education Commissioner Pender Makin) and the School Defendants

(MSAD 51, MSAD 51 Superintendent Jeffrey Porter, Mabel I. Wilson Elementary

School Principal Sally Loughlin, and Mabel I. Wilson Elementary School Vice

Principal Corey Munsey). Notice of Removal at 1, 3. On August 17, 2022, the case

was removed to this Court. See, generally, id.

With the Court’s permission, the Plaintiffs filed an amended complaint on

December 14, 2022 that did not name either the state of Maine or the Maine

Department of Education as defendants and thus left Commissioner Makin and the

School Defendants as the only defendants. Pls.’ Mot. to Am. Compl. (ECF No. 32);

Order (ECF No. 41); Pls.’ Am. Compl. (ECF No. 45).

1 The Court refers to Dr. Fox’s minor son by his initials, C.F., in accordance with the Federal

Rule of Civil Procedure 5.2. See FED. R. CIV. P. 5.2(a)(3).

Next, ruling on motions to dismiss from Commissioner Makin and the School

Defendants, respectively, on August 16, 2023, the Court dismissed all claims against

MSAD 51 and Principal Loughlin, who had retired, and further dismissed all claims

for money damages against Commissioner Makin, Superintendent Porter, and Mr.

Munsey.2 Order on Defs.’ Mots. to Dismiss (ECF No. 81). After the Court’s order,

the only surviving claims were against Commissioner Makin, Superintendent Porter,

and Mr. Munsey in their official capacities for declaratory and injunctive relief.3 Id.

Following the submission of pre-filing memoranda, the Court held a Local Rule

56(h) conference on September 18, 2024, Min. Entry (ECF No. 154), and the next day

issued an order on the conference providing a schedule for the proposed motions for

summary judgment and responses. Order on Local Rule 56(h) Conf. (ECF No. 155)

(Order). At the conference, counsel also raised the possibility that they might file

motions relating to the introduction of expert witness testimony under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.

2 After Principal Loughlin retired, Mr. Munsey was promoted to principal of Mabel I. Wilson

Elementary School. Order on Defs.’ Mots. to Dismiss at 5 n.7.

3 On November 20, 2023, the Plaintiffs moved to amend the amended complaint, seeking to

modify their prayer for relief based on C.F. aging out of Mabel I. Wilson Elementary School and to add

a claim for equitable reimbursement of the expenses paid to educate C.F. Pls.’ Second Mot. to Am.

Compl. (ECF No. 90). On February 22, 2024, a United States Magistrate Judge issued an order and

recommended decision on the second motion to amend complaint, recommending the Court grant the

motion to amend the complaint insofar as it requests placement in the relevant school for the age of

the Plaintiffs’ child at the time of the judgment but deny the motion insofar as it requests equitable

reimbursement. Order and Recommended Decision on Mot. to Am. Compl. at 13 (ECF No. 96). On

July 11, 2024, over the objection of Dr. Fox, the Court affirmed the Magistrate Judge’s recommended

decision. Order on Obj. to Recommended Decision (ECF No. 118). Ms. Fox filed her second amended

complaint on July 14, 2024, and Dr. Fox filed his second amended complaint on August 1, 2024, each

of which incorporated the contents of the first amended complaint with revisions to the prayers for

relief.3 Pl. Rita Fox’s Second Am. Compl. (ECF No. 119); Pl. Gregory Fox’s Second Am. Compl. (ECF

No. 127).

Carmichael, 526 U.S. 137 (1999). Id. The Court allowed the parties to confer and

decide whether to file the dispositive and Daubert motions simultaneously or,

alternatively, to file the Daubert motions first. Id.

Commissioner Makin, with the support of the School Defendants, moved to

amend the scheduling order on October 11, 2024, asking the Court to permit filing

and resolution of Daubert motions before summary judgment. Mot. to Amend

Scheduling Order (ECF No. 158). Dr. Fox responded in opposition to an amendment

to the scheduling order on October 15, 2024. Pl.’s Opp’n to Comm’r Makin’s Mot. to

Amend Schedule ECF 158 (ECF No. 161). Commissioner Makin replied on October

17, 2024 and the School Defendants replied on October 18, 2024. Def. Makin’s Reply

in Support of her Mot. to Amend Scheduling Order (ECF No. 162); School Defs.’ Reply

in Support of Def. Makin’s Mot. to Amend Scheduling Order (ECF No. 164).

On October 21, 2024, the Court granted Commissioner Makin’s motion to

amend scheduling order over Dr. Fox’s objection, staying the deadlines for the filing

of motions for summary judgment until the Daubert motions are resolved and setting

deadlines for the parties to file Daubert motions, oppositions, and replies. Order on

Mot. to Am. Scheduling Order at 6-7 (ECF No. 165). On October 25, 2024, Dr. Fox,

acting pro se, petitioned the Court to reconsider its order. Pet. to Recons. the Decision

to Reset Deadlines as to the Ct.[’]s Order ECF 165 (ECF No. 167). The Court dismissed

Dr. Fox’s motion for reconsideration on November 4, 2024. Order on Pet. to Recons.

(ECF No. 168).

On November 8, 2024, in accordance with the deadlines set in the Court’s order

on motion to amend scheduling order, Commissioner Makin moved to exclude

testimony by the Plaintiff’s expert witness, Dr. Stephen Paulding, on Daubert

grounds. Def. Makin’s Mot. to Exclude Opinion Testimony of Dr. Stephen Paulding

(ECF No. 170) (Makin’s Mot.). Dr. Fox opposed Commissioner Makin’s motion on

December 6, 2024.4 Pl. Gregory Fox’s Resp. to Def. Makin’s Daubert Mot. (ECF No.

179) (Pl.’s Opp’n). Commissioner Makin replied on December 20, 2024. Def. Makin’s

Reply Mem. in Support of Her Mot. to Exclude Opinion Testimony of Dr. Stephen

Paulding (ECF No. 188) (Makin’s Reply).

The Court issues this order to resolve Commissioner Makin’s motion to exclude

the expert testimony of Dr. Paulding.

II. THE PARTIES’ POSITIONS

A. Commissioner Makin’s Motion to Exclude Testimony

Commissioner Makin moves to exclude Dr. 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 Dr.

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. Makin’s Mot. at 1.

Beginning with her claim that Dr. Paulding did not prepare his report himself,

Commissioner Makin argues Rule 26 requires any expert witness to disclose his

4 Ms. Fox also filed an opposition to Commissioner Makin’s motion. See Pl. Rita Fox’s Counsel’s

Resp. to Def. Makin’s Daubert Mot. (ECF No. 175). However, as Ms. Fox stipulated to the dismissal of

her case prior to judicial resolution of the pending motion sequence, the Court does not consider the

contents of her opposition in resolving the pending motion.

opinions through a “written report . . . prepared and signed by the witness.” Id. at 3.

While some assistance by counsel in the preparation of the report is permitted, she

says, an expert report cannot be prepared in full by the party or counsel and then

simply signed by the expert. Id. at 3-4 (citing Manning v. Crockett, No. 95 C 3117,

1999 U.S. Dist. LEXIS 7966, at *4-11 (N.D. Ill. May 17, 1999) (citation amended).

Here, Commissioner Makin submits, it is undisputed that Plaintiff’s then counsel

Attorney Whiting drafted the expert report and presented it to Dr. Paulding, who

then agreed to sign his name to it. Id. at 4 (citing id., Attach. 4, Deponent: Stephen

B. Paulding, M.D. at 59:4-12 (Paulding Dep. Tr.)). She further contends that

Attorney Whiting also presented Dr. Paulding with all the medical articles he relied

on in forming his opinion. Id. (citing Paulding Dep. Tr. at 6:12-8:10).

Commissioner Makin also emphasizes the overt similarities between Dr.

Paulding’s opinions as stated in his expert report and the allegations Plaintiffs

advance in the amended complaint. Id. (comparing, e.g., id., Attach. 1, Pls.’ Expert

Witness Designation and Consolidated Expert’s Rep. at 2 (Paulding Rep.) (“A new

student attending school for 90 days without first receiving one or more of the 9

required vaccinations poses the same risk of spreading those diseases to other

students as a student with religious objections who attends school for that same time

period without being vaccinated against those diseases”) with Pls.’ Am. Compl. ¶ 18.2

(“In particular, allowing new students to attend school without being vaccinated for

90 days poses the same risk of spreading diseases throughout the school as allowing

unvaccinated religious objecting students to attend school would pose[. . .] at least for

the first 90 days of each new student’s attendance”). Commissioner Makin argues

Dr. Paulding’s “conclusory statements are substantively identical to the allegations

in Plaintiffs’ Amended Complaint, which was also drafted by Plaintiffs’ counsel,” and

contends the expert’s opinions should thus be excluded as violative of Rule 26(a). Id.

at 4-5 (citing Ask Chemicals, LP v. Computer Packages, Inc., 593 F. App’x 506, 510

(6th Cir. 2014) (“Where an expert merely offers his client’s opinion as his own, that

opinion may be excluded”)).

Commissioner Makin continues to claim that, even if the Court were to

conclude that the Plaintiffs’ expert report is compliant with Rule 26(a)(2)(B), Dr.

Paulding’s opinion constitutes common knowledge or simple logic, such that

designation as expert opinion is erroneous. Id. at 5 (citing United States v.

Zajanckauskas, 441 F.3d 32, 39 (1st Cir. 2006)). She asserts that his “fundamental

conclusion is that all unvaccinated individuals are equally likely to spread a

particular disease,” which Dr. Paulding himself describes as “common sense.” Id. at

5-6 (citing Paulding Rep. at 2-3; Paulding Dep. Tr. at 56:16-21 (“I believe it’s just

common sense that . . . whether they’re unvaccinated for one reason or are

unvaccinated for a different reason makes very little difference to be unvaccinated”),

57:1-9 (basing his opinions on common sense and experience)). Commissioner Makin

argues Dr. Paulding’s conclusions based on common sense should be excluded as

simply beyond the scope of expert opinion testimony. Id. at 6.

Commissioner Makin next urges the Court to exclude Dr. Paulding’s

testimony, even if accepted as proffered expert opinion, for lack of reliable principles

or methodology. Id. (collecting federal cases regarding the requirements for expert

testimony to be admissible, including scientifically valid principles and methodology).

Addressing his alleged lack of methodology, Commissioner Makin argues Dr.

Paulding’s report “reaches a series of conclusions regarding comparability of risk, but

nowhere in his report does he explain how he reached those conclusions.” Id. at 6-7

(citing Paulding Rep. at 2-3) (internal citations omitted). While he attached a number

of medical articles to his report and stated he relied on them, id. at 7 (citing Paulding

Dep. Tr. at 7:22-8:10), Dr. Paulding also said at deposition that he “ha[d] not looked

at all of th[o]se documents in detail” and his report barely mentions them, explaining

that his opinions were based on his experience as a family practitioner. Id. (quoting

Paulding Dep. Tr. at 6:23-7:6, 18:24-19:9).

Commissioner Makin concedes Rule 702 permits expert opinions based on

experience but insists “[i]f the [expert] witness is relying solely or primarily on

experience, then the witness must explain how that experience leads to the conclusion

reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Id. (citing Brown v. Wal-Mart Stores, Inc.,

402 F. Supp. 2d 303, 308 (D. Me. 2005) (in turn quoting FED. R. EVID. 702 advisory

committee note)). Rule 702 does not permit admitting non-scientific expert testimony

based on ipse dixit. Id. at 7-8 (citing, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997); United States v. Gonyer, No. 1:12-cr-00021-JAW, 2012 WL 3043020, at *2 (D.

Me. July 24, 2012)). Here, Commissioner Makin contends Dr. Paulding’s conclusory

statements do not satisfy this requirement. Id. at 8-9 (collecting cases from the First

Circuit and the District of Maine which excluded conclusory expert testimony, and

citing Paulding Dep. Tr. at 44:10-12, 52:7-9, 57:3-4).

She adds that, while factual underpinnings usually go to the weight of an

expert’s opinion rather than its admissibility, an expert opinion must at minimum

present sufficient factual grounds to draw their conclusions. Id. at 9 (citing Damon

v. Sun Co., 87 F.3d 1467, 1475 (1st Cir. 1996)). Dr. Paulding’s report, she says, bases

its conclusions on only one specific fact: “the fact that one unvaccinated person is just

as likely to contract and spread a disease as another unvaccinated person, all other

things being equal,” id. at 10 (quoting Paulding Rep. at 3). Commissioner Makin

objects that this fact is only supported, by Dr. Paulding’s own admission, by “common

sense” and “his observations as a family practitioner,” not by any scientific evidence,

and is “at best, a theory.” Id. at 10 (for the former, quoting Paulding Dep. Tr. at 57:3-

19).

B. Dr. Fox’s Opposition

Dr. Fox opposes Commissioner Makin’s requested exclusion of Dr. Paulding,

first arguing that Dr. Paulding’s experience as a family practitioner rather than a

specialist in vaccines does not affect the admissibility of his expert testimony. Pl.’s

Opp’n at 1-2 (citing Payton v. Abbott Labs, 780 F.2d 147, 150 (1st Cir. 1985) (“The

fact that the physician is not a specialist in the field in which he is giving his opinion

affects not the admissibility of his opinion but the weight the jury may place on it”)).

Dr. Fox also responds to Commissioner Makin’s argument under Rule 26(a)(2)(B),

asserting Plaintiff did not dispute the report’s probative value or raise issues with

the alleged assistance of counsel during the discovery period, which ended on July 19,

2024, such that Commissioner Makin should not be permitted to raise a Rule 26

argument within a Daubert challenge to expert reliability. Id. at 2. Dr. Fox asserts

Dr. Paulding permissibly reached his conclusions with assistance of counsel based on

the law and factual elements of the case. Id. at 5.

Turning to Commissioner Makin’s challenge to Dr. Paulding’s expert opinions

under Rule 702, Dr. Fox claims she seeks to deny Dr. Paulding’s opinions based on

common sense as unreliable by asking the Court to “to apply a standard of scientific

certainty to the testimony beyond that which Daubert envisions or demands.” Id. at

3 (citing Daubert, 509 U.S. at 590 (“arguably, there are no certainties in science”)).

In addition to common sense, Dr. Fox points out, Dr. Paulding based his conclusions

on “his medical knowledge, differential diagnosis skills, and experience” and thus

exercised his “medically reasonable judgment . . . in a valid and scientific manner

that a layperson cannot.” Id. at 4. Focusing on differential diagnosis, Dr. Fox asserts

“‘two unvaccinated individuals’ was the foundation he qualified the remainder of this

analysis ‘all things being equal’ in the differential consideration,” which

demonstrates Dr. Paulding’s reasoning skills and medical judgment. Id. Dr. Fox

submits Dr. Paulding’s use of differential judgment, which “rules in” all possible

causes before “ruling out” unlikely causes to identify the most likely, is supported by

caselaw of the First Circuit. Id. at 5 (citing, e.g. Milward v. Acuity Specialty Prods.

Grp., 639 F.3d 11, 19 (1st Cir. 2011); Granfield v. CSX Transp., Inc., 597 F.3d 474,

486 (1st Cir. 2010); Baker v. Dalkon Shield Claimants Tr., 156 F.3d 248, 253 (1st Cir.

1998)).

Dr. Fox argues the Defendants have neither argued nor provided any factual

data to support the claim that nonreligious exemptions pose a lesser risk of

transmission than unvaccinated religious observers. Id. He directs the Court to

Tandon v. Newsom, 593 U.S. 61 (2021), which he describes as holding that the free

exercise of religion must be given the same favored status as any comparable secular

activity and placing the burden on the state to justify any imposition on religious

exercise. Id. at 5-6 (citing Tandon, 593 U.S. at 63). Dr. Fox also quotes a passage

from Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023), in which the First Circuit declined

to dismiss an analogous claim based on the state of Maine’s argument that it did not

ground its decision to provide only medical exemptions on comparative risk and

concluded that the Supreme Court had directed courts to assess comparability of risk

in the public health context. Id. at 6 (citing Lowe, 68 F.4th at 714-15 (in turn citing

Tandon, 593 U.S. at 62)).

Dr. Fox argues further that the Defendant’s expert, Dr. Laura Blaisdell, when

asked about comparability of transmission risk, answered “the risk of transmission

is unknowable.” Id. at 6-7 (citing id., Attach. 3, Video Dep. of Dr. Laura Blaisdell at

21:21-25:10 (Blaisdell Dep. Tr.)). Dr. Fox tells the Court that he sought information

on the Defendant’s reasoning regarding risk comparisons of non-religious exemptions

to vaccination requirements and unvaccinated adults in public schools through

interrogatories and requests for admission, which Commissioner Makin responded to

on January 29, 2024 and again on April 18, 2024 by saying the State does not deny

diseases for which students are required to be vaccinated can be spread by adults.

Id. at 7-8 (citing Tr. of Proceedings 4:7-13, 8:6-19 (ECF No. 159) (Discovery Hr’g Tr.)).

Dr. Fox notes his second set of interrogatories also sought information on the

Defendant’s knowledge and applied criteria for risk analysis—specifically, “1)

Correlate of Protection (COP), 2) Relative Cor[r]elate, (3) Absolute Cor[r]elate, and

Co-Correlate of Protection”—and that Commissioner Makin did not object but

“denie[d] that any of these terms are [relevant] to the issues presented in this case.”

Id. at 8 (citing id., Attach. 6, Def. Pender Makin’s Answers to Pl. Gregory Fox’s Second

Set of Interrogs. at 5).

Based on the above, Dr. Fox asserts Defendants “had multiple opportunities to

provide facts and information in support of denial of comparability of risks,” and that

Dr. Paulding’s expert report accurately accounts for facts provided from Defendant’s

responses, which Dr. Fox claims “were deficient and problematic” despite those

answers being confirmed as sufficient by the Magistrate Judge. Id. at 8-9 (citing

Discovery Hr’g Tr. at 8:14-15). Dr. Fox contends Rule 702 and Daubert do not require

a proponent of expert testimony to prove the expert’s assessment is correct, merely

that it “rests upon ‘good grounds, based on what is known.’” Id. at 9 (quoting Daubert,

509 U.S. at 590). Plaintiff insists the Court should not assume Dr. Paulding would

not consider more facts if the Defendant had provided them in discovery, and argues

Commissioner Makin’s responses were “devoid of facts for the Plaintiff’s expert to

analyze.” Id. at 10. “Lack of certainty is not, for a qualified expert, the same thing

as guesswork,” he proffers. Id. (quoting Acuity Specialty Prods. Grp., 639 F.3d at 22

(in turn quoting Primiano v. Cook, No. 06-15563, 2010 U.S. App. LEXIS 8859 at *13-

14 (9th Cir. Apr. 27, 2010))).

Dr. Fox concludes that Dr. Paulding’s opinions are reliable and supported by

law. Id. at 10-11.

C. Commissioner Makin’s Reply

Commissioner Makin replies in support of her motion, reasserting her claims

that Dr. Paulding’s expert report was prepared by counsel, does not assist the trier of

fact, and is not the product of reliable principles and methods, such that it must be

excluded. Makin’s Reply at 1-5.

She first reiterates her arguments that Attorney Whiting drafted Dr.

Paulding’s report and provided all resources he relied upon in violation of Rule

26(a)(2)(B). Id. at 1-2 (citing Paulding Dep. Tr. at 6:12-8:10, 59:4-12). After collecting

federal caselaw in which courts have excluded expert testimony prepared by counsel,

Commissioner Makin notes Dr. Fox presents no countervailing authority regarding

preparation of an expert report by counsel, nor does he explain why this violation is

“substantially justified” or “harmless” pursuant to Federal Rule of Civil Procedure

37(c)(1). Id. Rather, Commissioner Makin says, Dr. Fox asserts without citing

authority that she should have challenged Dr. Paulding’s report on this basis at an

earlier stage of the proceeding. Id. at 2-3. Commissioner Makin directs the Court to

caselaw from other federal districts in which motions to exclude expert testimony for

lack of preparation were brought alongside Daubert motions. Id. at 3 (citing, e.g.,

James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, Civil. Action

No. 5:11-374-DCR, 2014 U.S. Dist. LEXIS 59689, at *18-19 (E.D. Ky. Apr. 30, 2014)

(citation amended); DataQuill Ltd. v. Handspring, Inc., No. 01 C 4635, 2003 U.S.

Dist. LEXIS 2981, at *4-5 (N.D. Ill. Feb. 28, 2003) (citation amended)).

Commissioner Makin next asserts that Dr. Paulding’s expert opinions do not

assist the trier of fact because his proposed testimony “easily can be derived from

common sense, common experience, the trier of fact’s own perceptions, or simple

logic.” Id. at 3 (quoting Zajanckauskas, 441 F.3d at 39). She also argues Dr.

Paulding’s proposed testimony satisfies none of the bases for admissible expert

testimony, which Rule 702 permits only “if (1) ‘the testimony is based on sufficient

facts or data,’ (2) ‘the testimony is the product of reliable principles and methods,’ and

(3) the witness has applied those principles and methods reliably to the facts of the

case.” Id. (quoting FED. R. EVID. 702 and citing Daubert, 509 U.S. at 597). She

reiterates her position that Dr. Paulding provided no reliable methodology or

description of the facts and data that formed the basis of his opinion. Id. at 3-4.

Responding to Dr. Fox’s assertion that the Defendants “are at fault for any

insufficiency in Dr. Paulding’s opinion” based on deficient discovery responses, id. at

4 (citing Pl.’s Opp’n at 5-9), Commissioner Makin insists his argument is inapposite

and flips the burden of persuasion by focusing on the Defendants rather than showing

that Dr. Paulding’s opinion is based on sufficient data and reliable methods. Id.

(citing Milward v. Rust-Oleum Corp., 820 F.3d 469, 473 (1st Cir. 2016) (“The party

seeking to introduce” expert opinion “has the burden of establishing both its

reliability and its relevance”) (in turn citing Daubert, 509 U.S. at 593 n.10; FED. R.

EVID. 702. advisory committee’s note to 2000 amendment) (citation amended)). She

adds that Dr. Fox errs by asserting Dr. Paulding was limited to facts disclosed by the

Defendants during discovery, directing the Court to the language of Federal Rule of

Evidence 703:

An expert may base an opinion on facts or data in the case that the

expert has been made aware of or personally observed. If experts in the

particular field would reasonably rely on those kinds of facts or data in

forming an opinion on the subject, they need not be admissible for the

opinion to be admitted.

Id. at 4-5 (quoting FED. R. EVID. 703). Commissioner Makin also clarifies that her

motion does not ask the Court to choose among competing methodologies, as Dr. Fox

suggests, but rather argues Dr. Paulding has presented no methodology as the basis

for his opinions. Id. at 5.

Lastly, Commissioner Makin asks the Court to disregard Dr. Fox’s claim that

“Attorney Whiting provided Dr. Paulding with ‘facts that the expert relied on in

forming the opinions to be expressed,’” id. (quoting Pl.’s Opp’n at 10), as unsupported

by the evidence. Id. For all these reasons, Commissioner Makin asks the Court to

exclude Dr. Paulding’s proffered expert testimony. Id. at 5, 7.

III. LEGAL STANDARD

Federal Rule 26 requires expert witnesses to disclose “a written report—

prepared and signed by the witness,” which must contain:

(i) a complete statement of all opinions the witness will express and the

basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications

authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the

witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

FED. R. CIV. P. 26(a)(2)(B); accord Duval v. United States VA, 69 F.4th 37, 43 (1st Cir.

2023) (explaining the rule “requires expert witness reports to include a complete

statement of all opinions the witness will express and the basis and reasons for them”)

(internal quotation marks omitted)). If a party fails to provide information required

under Rule 26(a), “the party is not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1); accord, e.g., Klonoski

v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (excluding evidence under Rule 37(c)(1)

for violations of Rule 26(a)).

The admissibility of expert testimony is a question of law governed by Federal

Rule of Evidence 702 and by the United States Supreme Court in Daubert and its

progeny.5 Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert’s scientific, technical, or otherwise specialized

knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and

5 See, e.g., Daubert, 509 U.S. 579; Kumho Tire Co., 526 U.S. 137.

(d) the expert has reliably applied the principles and methods to

the facts of the case.

FED. R. EVID. 702. The First Circuit has “long entrusted federal trial judges to be

‘gate-keeper[s],’ empowered by Rule 702 and Daubert to ‘ensure that an expert’s

testimony “both rests on a reliable foundation and is relevant to the task at

hand.”’” United States v. Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting Daubert,

509 U.S. at 597).

In general, “[e]xpert testimony is admissible if ‘scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue’ and if the proposed witness is qualified as an expert by some

specialized ‘knowledge, skill, experience, training, or education.’” Liberty Mut. Ins.

Co. v. Broan-NuTone LLC, No. 21-cv-11986-DLC, 2024 U.S. Dist. LEXIS 76408, at

*5-6 (D. Mass. Apr. 26, 2024) (quoting Daubert, 509 U.S. at 588). “A district court

may exclude expert testimony where it finds that the testimony has no foundation or

rests on . . . speculative evidence.” Schubert v. Nissan Motor Corp. in U.S.A., 148

F.3d 25, 29-30 (1st Cir. 1998) (quoting Casas Office Machs., Inc. v. Mita Copystar Am.,

Inc., 42 F.3d 668, 681 (1st Cir. 1994)); accord Gonzalez-Arroyo v. Drs.’ Ctr. Hosp.

Bayamon, Inc., 54 F.4th 7, 14 (1st Cir. 2022) (“to provide admissible testimony, an

expert must render conclusions ‘in a scientifically sound and methodologically

reliable fashion’”) (quoting Acuity Specialty Prods. Grp., 639 F.3d at 15))

“Neither Daubert nor Rule 702 permits expert opinions grounded only in the

unsupported assertions of the expert.” Gonzalez-Arroyo, 54 F.4th at 14 (citing López-

Ramírez v. Toledo-González, 32 F.4th 87, 94 (1st Cir. 2022)). “[T]he overarching

concern is on the ‘evidentiary relevance and reliability’ of the proposed testimony,”

with speculative expert testimony often satisfying neither criterion. Seahorse Marine

Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 81 (1st Cir. 2002) (quoting Daubert,

509 U.S. at 595). Should a court determine an expert opinion is unsupported, the

First Circuit directs “a court may conclude that there is simply too great an analytical

gap between the data and the opinion proffered, provided that gap is not of the district

court’s making.” Gonzalez-Arroyo, 54 F.4th at 14 (citing López-Ramírez, 32 F.4th at

94) (internal citations and quotation marks omitted)).

Exclusion of proposed expert witnesses often occurs in the run-up to trial;

however, the First Circuit has clarified that the same standard applies to motions

brought at the summary judgment stage. Alt. Sys. Concepts, Inc. v. Synopsys, Inc.,

374 F.3d 23, 31-32 (1st Cir. 2004) (“Evidentiary rulings have the potential to shape

and winnow the scope of the summary judgment inquiry, and a trial court should

have as much leeway in dealing with those matters at the summary judgment stage

as at trial”).

IV. DISCUSSION

After reviewing the parties’ filings and the record, the Court concludes Dr.

Paulding’s expert opinions do not comport with the well-established rules governing

federal practice and warrant exclusion. In particular, the Court concludes that Dr.

Paulding did not prepare the December 15, 2023 written expert report, see Paulding

Rep. at 2-4, as required by Federal Rule of Civil Procedure 26(a)(2)(B). Instead, Mr.

Fox’s then attorney Stephen Whiting prepared Dr. Paulding’s report, and Dr.

Paulding only signed it. 6 This highly unusual situation compels the Court to exclude

Dr. Paulding’s expert witness testimony.

A. The Record on Preparation of the Report

First, the Court considers Commissioner Makin’s complaint that Attorney

Whiting prepared Dr. Paulding’s report in violation of Federal Rule of Civil Procedure

26. The Court has carefully reviewed the record to determine whether it reveals who

wrote Dr. Paulding’s report, Dr. Paulding or Attorney Whiting. The Court concludes

that Attorney Whiting not only wrote Dr. Paulding’s report, but he also provided the

articles appended to the Paulding report. Unfortunately for Dr. Fox, the record

allows no finding other than the Paulding report was in fact the Attorney Whiting

report.

At his July 8, 2024 deposition, Assistant Attorney General (AAG) Kimberly L.

Patwardhan directly questioned Dr. Paulding about who authored his expert report:

Q. With respect to your opinion about the grace period, just talking

about that right now, did you review any documents in order to form

that opinion?

A. No.

Q. Did you talk to anyone in forming that opinion?

A. I believe that Mr. Whiting’s wording of this is - - he offered to me and

I agreed with it.

Q. Did you write this?

6 Attorney Whiting moved to withdraw as attorney for Dr. Fox on March 8, 2024, explaining Dr.

Fox had terminated him as counsel. Mot. to Withdraw as Counsel for Pl. Gregory Fox (ECF No. 100).

The Court granted Attorney Whiting’s motion that same day. Order (ECF No. 101). Since that date,

Dr. Fox has represented himself pro se in this matter.

A. Not specifically. I agreed with it after Mr. Whiting presented it to

me in this report.

Q. So to be clear, Mr. Whiting drafted this expert report?

A. Yes.

Paulding Dep. Tr. at 58:25-59:12. Thus, Dr. Paulding clearly conceded at his

deposition that Attorney Whiting drafted the expert report, and Dr. Paulding merely

agreed with the report as drafted.

Both Attorney Whiting and Dr. Fox questioned Dr. Paulding during his

deposition; however, neither Attorney Whiting nor Dr. Fox elicited any testimony to

contradict Dr. Paulding’s prior statements that the expert report was drafted by

Attorney Whiting and presented to Dr. Paulding. Id. 81:15-85:3 (Attorney Whiting),

85:18-104:8 (Dr. Fox), 108:12-109:20 (Dr. Fox). In fact, the phrasing of Attorney

Whiting’s own questioning implicitly supports Commissioner Makin’s contention that

Dr. Paulding’s involvement in the report was limited to signing it. Id. at 83:22-24

(“[Attorney Whiting:] And you took that into consideration when you signed this

report? [Dr. Paulding:] Yes”)

The colloquy at deposition also reveals that the medical articles appended to

Dr. Paulding’s report were entirely provided by Attorney Whiting, and further that

Dr. Paulding “ha[d] not looked at all of th[o]se documents in detail,” nor was he even

entirely sure of their contents:

[AAG Patwardhan:] Okay. So, again, I just want to be clear, do you have

any documents that were provided to you by Mr. Whiting or [Dr.] Fox

that you considered in forming your expert opinion?

[Dr. Paulding:] I have not looked at all of these documents in detail so,

no, I have not considered these documents. I thought they were just

evidence of the fact that there was a discussion and a disagreement

about vaccinations.

[AAG Patwardhan:] Did Mr. Whiting provide you with any documents

that you relied on in forming your expert opinion?

[Dr. Paulding:] Yes.

[AAG Patwardhan:] What documents were those?

[Dr. Paulding:] These are a list of articles from medical journals which

pertain to the diseases that we had discussed, and I have been aware of

this -- these diseases for many years, and I have always been pro vaccine

with my patients.

[AAG Patwardhan:] So the articles that were attached to your expert

report, were all of those articles provided to you by Mr. Whiting?

[Dr. Paulding:] Yes.

[AAG Patwardhan:] And did you consider all of those documents in

forming your expert opinion?

[Dr. Paulding:] I did.

. . . .

[AAG Patwardhan:] Other than the documents that Mr. Whiting

provided to you that were attached to your expert report, did you

consider, rely or review any other documents in forming your expert

opinion?

[Dr. Paulding:] I think that these and my years of experience have

formed my opinions.

[AAG Patwardhan:] Did you rely on any other document or information

other than the ones that were attached to your expert report?

[Dr. Paulding:] No.

Id. at 6:23-7:21, 8:1-10. In fact, during Attorney Whiting’s examination of Dr.

Paulding, Attorney Whiting confirmed that he had provided Dr. Paulding with

seventeen articles, and Dr. Paulding agreed that he had relied on these seventeen

articles in coming to his conclusions. Id. at 82:8-83:2; 85:9-15.

Based on this evidence, the Court finds that Attorney Whiting wrote Dr.

Paulding’s expert report and supplied all the articles appended to the Paulding

report. Indeed, these conclusions seem compelled by Dr. Paulding’s frank responses

at his deposition.

B. The Law on Expert Reports Authored by Counsel

Unfortunately for Dr. Fox, the Court’s finding that Attorney Whiting, not Dr.

Paulding, authored Dr. Paulding’s expert report and supplied the corroborating

articles appended to the report compels the Court to exclude Dr. Paulding’s testimony

as an expert witness in this case. Not surprisingly, there is a dearth of First Circuit

caselaw on the degree to which counsel may draft an expert report. Of the two district

courts within the First Circuit to have considered the question, both recognized that

“it is generally accepted that the rule requires the expert to ‘substantially participate

in the preparation of his report.’” Flebotte v. Dow Jones & Co., Civil Action No. 97-

30117-FHF, 2000 U.S. Dist. LEXIS 19875, at *25 (D. Mass. Dec. 6, 2000) (quoting

Manning, 1999 U.S. Dist. LEXIS 7966, at *8); accord Inmusic Brands, Inc. v. Roland

Corp., No. 17-00010-MSM, 2023 U.S. Dist. LEXIS 101526, at *5 (D.R.I. June 12, 2023)

(“Rule 26 is violated when the expert is not involved whatsoever in the preparation

of his expert report”) (citing same).

Federal district courts in other circuits have uniformly disapproved of expert

testimony revealed to be the exclusive product of counsel. See, e.g., Best Process Sols.,

Inc. v. Blue Phx. Inashco USA, Inc., No. 1:21-cv-00622, 2023 U.S. Dist. LEXIS 205028,

at *8 (N.D. Ohio Nov. 16, 2023) (“Counsel may not prepare the report for the

witness”); Manning, 1999 U.S. Dist. LEXIS 7966, at *8 (“preparing the expert’s

opinion from whole cloth and then asking the expert to sign it if he or she wishes to

adopt it conflicts with Rule 26(a)(2)(B)’s requirement that the expert ‘prepare’ the

report”); Ask Chemicals, 593 F. App’x at 510 (6th Cir. 2014) (“Where an expert merely

offers his client’s opinion as his own, that opinion may be excluded”); Numatics, Inc.

v. Balluff, Inc., 66 F. Supp. 3d 934, 941 (E.D. Mich. 2014) (“An expert witness who is

merely a party’s lawyer’s avatar contributes nothing useful to the decisional

process”); Bekaert Corp. v. City of Dyersburg, 256 F.R.D. 573, 579 (W.D. Tenn. 2009)

(excluding proffered expert testimony because the expert report “was originally

prepared by Defendant’s counsel”); cf. Crowley v. Chait, 322 F. Supp. 2d 530, 544

(D.N.J. 2004) (declining to exclude an expert report where the witness “claim[ed] to

have offered substantial input into what was put into the report”).

As analyzed in detail in Manning, the 1993 advisory committee notes to Rule

26 permit some degree of participation by counsel in the preparation of an expert’s

report. Manning, 1999 U.S. Dist. LEXIS 7966, at *4-5 (citing FED. R. CIV. P.

26(a)(2)(B) advisory committee’s notes to 1993 amendment). After considering other

court’s analysis of the requirements of Rule 26(a)(2)(B), the Manning Court concluded

that “[the other court decisions], as well as the advisory committee notes to Rule

26(a)(2), stand for the proposition that some attorney involvement in the preparation

of an expert report is permissible, but that the expert must also substantially

participate in the preparation of the report.” Id. at 8. The Manning Court

distinguished “an attorney’s assistance with the preparation of documents required

by Rule 26, such as a list of cases in which the expert has testified, or fine-tuning a

disclosure with the expert’s input to ensure that it complies with the rules” from

“[p]reparation [which] implies involvement other than perusing a report drafted by

someone else and signing one’s name at the bottom to signify agreement.” Manning,

1999 U.S. Dist. LEXIS 7966, at *8-9. The Manning Court thus summarized its

holding as: “[i]n other words, the assistance of counsel contemplated by Rule

26(a)(2)(B) is not synonymous with ghost-writing.” Id. at 9. This Court agrees with

the Manning Court’s analysis of Rule 26(a)(2)(B) and considers Dr. Paulding’s report

and testimony under this framework.

After reviewing the record, the Court agrees with Commissioner Makin that

the preparation of Dr. Paulding’s purported expert report by Attorney Whiting, as

well as his providing Dr. Paulding with all the resources appended to his report, is

deeply problematic and inconsistent with the requirements of Rule 26. Makin’s Mot.

at 3-5. The plain language of Rule 26 requires, inter alia, the disclosure of “a written

report—prepared and signed by the witness.” FED. R. CIV. P. 26(a)(2)(B) (emphasis

added by Court). Based on this Court’s finding that Attorney Whiting authored Dr.

Paulding’s expert report and supplied the attached articles, the Court must conclude

that Dr. Paulding’s report does not comply with Rule 26(a)(2)(B) because Dr. Paulding

did not prepare it as the Rule requires. The Court observes that there is no evidence

in this record that Attorney Whiting’s involvement fell inside the permissible edges

of an attorney’s involvement with an expert report allowed under the caselaw. There

is an obvious difference between an attorney editing an expert report for form or

clarity and an attorney writing the report for the expert. Here, Attorney Whiting

wrote Dr. Paulding’s report.

To the extent that Dr. Fox’s response insists that Dr. Paulding, not Attorney

Whiting, wrote the expert report, see Pl.’s Opp’n at 10, the Court must reject his

contention as unsupported by the record. Dr. Fox also raises another defense, placing

dispositive weight on his argument that Commissioner Makin’s challenge under Rule

26(a)(2)(B) was not brought during the discovery period. Id. at 2. The Court is not

persuaded by this claim. First, as Dr. Fox notes, the discovery period concluded on

July 19, 2024, and Dr. Paulding’s deposition at which Attorney 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. Id.; Makin’s Reply at 3 n.1. Second,

moving to exclude Dr. Paulding’s report at the Daubert stage is appropriate as a

challenge to whether the proffered testimony is “the product of reliable principles and

methods” and has been permitted by numerous federal district courts. FED. R. EVID.

702; see, e.g., Flebotte, 2000 U.S. Dist. LEXIS 19875, at *21-25 (granting a motion to

exclude proffered expert testimony based on Rule 26(a)(2)(B) violations); Inmusic

Brands, Inc., 2023 U.S. Dist. LEXIS 101526, at *5 (same); James T. Scatuorchio

Racing Stable, LLC, 2014 U.S. Dist. LEXIS 59689, at *18-19 (same).

Based on Dr. Paulding’s uncontroverted testimony that Attorney Whiting

drafted the expert report and provided all appended sources, the Court concludes the

record evidences Dr. Paulding’s lack of substantial participation in production of his

expert report and thus grants Commissioner Makin’s motion to exclude Dr.

Paulding’s testimony.

V. CONCLUSION

The Court GRANTS Defendant Pender Makin’s Motion to Exclude Opinion

Testimony of Dr. Stephen Paulding (ECF No. 170).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 10th day of March, 2025