Patterson et al v. Covidien Inc. et al

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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
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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 	(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).
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“[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.”
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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
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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
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