You’ve seen the AP press coverage. Charles Lennon had a pre-Viagra surgery to install a prosthesis, but had trouble keeping it in a concealed position; the legal opinion reveals he also complained about the product’s discomfort and noise. He won $400,000 after a jury trial. I don’t know whether the jury was correct. On the one hand, the description is one of a bad product failure. On the other hand, Lennon had trouble meeting federal evidentiary standards, and dismissed with prejudice the case he filed in federal court, rather than face the results of a summary judgment motion; moreover, an Oklahoma case against the manufacturer also suggests that the manufacturer didn’t do anything actionable. (Lennon also sued his doctor and his hospital; they won below.)
What nobody has mentioned is that the case turned on a lawyer’s use of Latin. The reference in the notice of appeal was to “Dacomed Corp., et al.” But Rule 3(c) requires parties to be named with specificity in such a notice. Thus, co-defendant National Union Fire Insurance was not allowed to appeal—and the appeal may very well have been dispositive in its favor, because Dacomed’s appeal—based on res judicata because they had succeeded in a previous federal lawsuit after two First Circuit appeals—was successful. The ruling is correct: better to have a straightforward rule that can be neutrally applied than a vague multi-factor balancing test that essentially permits a judge to let sympathy into play, and the insurer was on the wrong side of the rule. But when so much turns on something so seemingly trivial, judges should not be surprised that appellate briefing costs so much. Lennon v. Dacomed Corp. (R.I. Jun. 23, 2006).
An interesting question now is whether this counts as legal malpractice. However, the fact that the insurer is a likely repeat player in litigation suggests that there will be market consequences even if there are not legal ones.
Interesting datapoint from the federal opinion:
Doe identified four experts who would testify. When Urohealth deposed them, none proffered an opinion about whether the Dura-II was defective or unreasonably dangerous. In fact, it turned out that none of them had agreed to serve as an expert on Doe’s behalf.
2 Comments
I don’t know why the press constantly misrepresents these awards. He did not get $400,000. His lawyer took a huge chunk of that, a low estimate of $200,000. Defense lawyes probably got another $300,000.
The headline shouldn’t be “Man gets $400k for . . .” it should be “Lawyers get $500k dragging injured man through years of litigation.”
People need to start analyzing these cases by looking at where the money goes.
On average, according to the much-misinterpreted “Harvard study” which determined that 40% of malpractice cases are groundless, plaintiffs receive only 46% of each award – so your estimate is close. Mr. Lennon likely received only $180,000, after experts and court costs were paid OUT OF HIS SHARE.
NB that the 46% figure includes defense costs. — TF