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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

In re: COVIDIEN HERNIA MESH PRODUCTS LIABILITY LITIGATION; Larry Patterson and Tammy Patterson v. COVIDIEN, INC., et al.

District Court, D. Massachusetts

• Citations: None known
• Docket Number: 1:22-cv-10153

• Precedential Status: Unknown Status

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (751)

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Trial Court Document

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

                          )                                      

IN RE: COVIDIEN HERNIA MESH )

PRODUCTS LIABILITY LITIGATION ) MDL

NO. II, ) No. 22-md-03029-PBS

__________________________________ )

)

LARRY PATTERSON and TAMMY )

PATTERSON, )

)

Plaintiffs, )

) Civil Action

v. ) No. 22-cv-10153-PBS

)

COVIDIEN, INC., et al., )

)

Defendants. )

)

                     ORDER                                       
               February 26, 2026                                 

Saris, J.

Defendants Covidien LP and Sofradim Production SAS (together,

“Covidien”) move to strike the declaration of Dr. Lucian Newman

III and briefing in reliance on this declaration submitted by

Plaintiffs Larry and Tammy Patterson in opposition to Covidien’s

motion for summary judgment and motion to exclude the expert

testimony of Dr. Stephen Ferzoco. Covidien argues that Plaintiffs

failed to disclose Dr. Newman’s declaration before the close of

discovery, that the declaration offers expert testimony even

though Dr. Newman was not disclosed as an expert, and that the

declaration is a sham affidavit. After hearing, the Court denies

Covidien’s motion to strike.

Covidien first argues that Dr. Newman’s declaration should be

stricken because its production after the close of discovery

violates the Court’s scheduling orders. So long as a witness is

properly disclosed under Federal Rule of Civil Procedure 26,

however, a party may obtain an affidavit or declaration from that

witness to support or oppose summary judgment without having

previously produced that document to the opposing side during

discovery. See, e.g., Frosch v. Alsobrook, No. 24-40662, 2025 WL

1566587, at *2 (5th Cir. June 3, 2025) (per curiam); Benoit v.

City of Lake City, 343 F. Supp. 3d 1219, 1223-24 (M.D. Fla. 2018);

Brantley v. Ferrell Elec., Inc., 112 F. Supp. 3d 1348, 1357 (S.D.

Ga. 2015); Russo v. Estée Lauder Corp., 856 F. Supp. 2d 437, 447

n.4 (E.D.N.Y. 2012); Rivot-Sanchez v. Warner Chilcott Co., [707 F.

Supp. 2d 234, 259](https://www.courtlistener.com/opinion/2541711/rivot-sanchez-v-warner-chilcott-co-inc/#259) (D.P.R. 2010); Dupee v. Klaff’s, Inc., 462 F.

Supp. 2d 233, 235 n.2 (D. Conn. 2006); SEC v. Poirier, 140 F. Supp.

2d 1033, 1041-42 (D. Ariz. 2001). Plaintiffs’ failure to produce

Dr. Newman’s declaration during discovery does not justify

disregarding that declaration at the summary judgment stage.

Nor is exclusion of Dr. Newman’s declaration warranted on the

basis that Plaintiffs did not timely disclose Dr. Newman as an

expert witness under Rule 26. See Fed. R. Civ. P. 26(a)(2) (listing

disclosure requirements for witnesses offering expert testimony).

“[A] treating physician, testifying as to his consultation with or

treatment of a patient, is not an expert witness for purposes of

Rule 26.” Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir.

2003). In his declaration, Dr. Newman asserts in relevant part

that he would not have used the Symbotex mesh for Mr. Patterson’s

hernia repair had he known “that the collagen barrier could be

resorbed within seven days or anything substantially less than

thirty days.” Dkt. 95-12 ¶ 9. This assertion is based on his

treatment of Mr. Patterson and, thus, is not expert testimony

requiring disclosure under Rule 26. See In re C.R. Bard, Inc., 948

F. Supp. 2d 589, 616-17 (S.D. W. Va. 2013) (deeming treating

physicians’ testimony about whether they “would have used

the . . . products if they were given the warnings that the

plaintiffs contend should have been given” to be “fact testimony”);

In re Levaquin Prods. Liab. Litig., 726 F. Supp. 2d 1025, 1036 n.4

(D. Minn. 2010) (deeming a treating physician’s “responses to

hypothetical questions about what he would have done if he had

received adequate warnings” to be lay witness opinions).

Finally, Dr. Newman’s declaration does not violate the sham

affidavit rule. That rule provides that “where a party has given

clear answers to unambiguous questions in discovery, that party

cannot create a conflict and resist summary judgment with an

affidavit that is clearly contradictory unless there is a

satisfactory explanation of why the testimony has changed.”

Calderón-Amézquita v. Rivera-Cruz, 158 F.4th 54, 74 (1st Cir. 2025)

(quoting Escribano-Reyes v. Pro. Hepa Certificate Corp., 817 F.3d

380, 386 (1st Cir. 2016)). The First Circuit has applied the sham

affidavit rule to an “interested” non-party witness on at least

one occasion. Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13,

16, 20-21 (1st Cir. 2000) (quoting Colantuoni v. Alfred Calcagni

& Sons, Inc., 44 F.3d 1, 4 (1st Cir. 1994)) (affirming the striking

of an affidavit of the plaintiffs’ client), while the Third Circuit

has affirmed a decision to strike a treating physician’s affidavit

on this basis, see In re Avandia Mktg., Sales Pracs. & Prods. Liab.

Litig., 639 F. App’x 874, 877-78 (3d Cir. 2016).

The Court need not decide whether the sham affidavit rule

applies to Dr. Newman because, even if it does, the rule does not

support striking his declaration. Most of Dr. Newman’s declaration

does not clearly contradict his deposition testimony. The only

clear contradiction -- whether, looking back, Dr. Newman would

still use Symbotex for Mr. Patterson’s procedure -- is readily

explained by Dr. Newman’s post-deposition review of evidence

indicating that Symbotex’s collagen barrier may resorb within

seven days. See Hernandez-Loring v. Universidad Metropolitana, 233

F.3d 49, 54 (1st Cir. 2000) (“[N]ew sources of information . . .

can often explain a revision of testimony.”). While Dr. Newman’s

declaration “[c]learly . . . serves as a direct rebuttal to the

arguments and theories presented by [Covidien] in [its] summary

judgment motion,” the Court cannot strike the declaration solely

on that basis without identifying a clear and inadequately

explained contradiction with earlier testimony. Selfridge v. Jama, 172 F. Supp. 3d 397, 413 (D. Mass. 2016).

Accordingly, Covidien’s motion to strike (Dkt. 104) is

DENIED.

SO ORDERED.

/s/ PATTI B. SARIS__________

Hon. Patti B. Saris

United States District Judge