Posted on Sep 25, 2006
Man who won penile-implant case may not be paid
Despite the $400,000 award, the insurance company argues that it cannot be held liable for the faulty device.
01:00 AM EDT on Saturday, September 23, 2006
BY EDWARD FITZPATRICK
Journal Staff Writer
PROVIDENCE -- Charles "Chick" Lennon, the North Providence man who sued over a defective penile implant, might not get a dime although a jury decided to award him $750,000.
After Superior Court Judge Edward C. Clifton lowered the jury award to $400,000, both sides appealed, and in June the state Supreme Court gave Lennon 20 days to accept the $400,000 or have a new trial on damages. Lennon decided to take the money, which would total nearly $1 million with interest. But the legal battle wasn't over yet.
The Supreme Court had said the implant manufacturer, Dacomed Corp., was no longer on the hook, so it had appeared Dacomed's insurer would pay Lennon. But the insurance company argued that there was no way it could be liable if Dacomed wasn't. And Judge Clifton agreed, granting a motion on Monday to dismiss the claim against the National Union Fire Insurance Company.
Lennon's lawyers filed an emergency motion Wednesday, saying the Supreme Court has already made clear that the insurer was to pay the $400,000 award. Arguing that the insurer had misrepresented the high court's ruling and that Clifton had committed a "clear error," Lennon's lawyers asked the Supreme Court to take steps necessary to enforce its prior ruling.
In an interview, Lennon, 68, said he has been dealing with pain and embarrassment from the Dura-II penile implant for a decade, and he doesn't know if he'll ever receive any of the jury award.
"All I know is my [penis] hurts 24 hours a day and they are the reason why," Lennon said of defendants in the case. "They are doing anything they can not to pay it. They are waiting for me to die."
Lennon, a retired handyman, said he is also disappointed with the legal system, saying working-class people like himself stand little chance of success. He said the insurance company tried to settle with him for as little as $7,800 because they figured he couldn't afford a legal battle.
"I'm just disgusted with the law," Lennon said. "I apologize to that wonderful jury. They're all very nice people -- not because they gave me money but because they understood what I was going through. The judge might not have gotten the message, but they got the message."
Lennon explained that the penile implant will not remain in the down position, so he wears a black fanny pack in front to conceal it. He recounted the embarrassment of having female acquaintances hug him, only to recoil when they notice the implant.
Also, Lennon said the device is painful. "I'm suffering with it right now," he said during an interview at Honey Dew Donuts on North Main Street. "It never stops. It's like a constant headache."
Lennon's lawyers, Albert R. Romano and Jules J. D'Alessandro, declined to comment on Monday's ruling. The lawyer representing the insurance company, Brooks R. Magratten, also declined to comment.
The ruling stems from a motion that the insurance company filed seeking, among other options, a judgment in its favor "as a matter of law."
In a legal brief, Magratten emphasized that the Supreme Court had said Dacomed couldn't be held liable because a case against Dacomed's parent corporation had already been dismissed in federal court.
Magratten argued that if Dacomed isn't liable, then neither is the insurance company. National Union would only provide coverage if Dacomed was found liable, he said. So, he stated, "As a matter of law, the Supreme Court's determination that Dacomed cannot be liable to [Lennon] disposes of [Lennon's] claim against National Union."
Also, Magratten argued that nothing in the Supreme Court order prohibited Judge Clifton from granting the insurance company's motion. He noted National Union was not even considered a party to the appeal that led to the Supreme Court's June 23 ruling.
In their legal brief, Lennon's lawyers called the insurance company's motion "an affront to the jurisdiction and decision of the Rhode Island Supreme Court." They said the high court has already issued the final judgment in the matter, and the only thing left for the Superior Court to do is "the clerk's ministerial act of entering the judgment."
Lennon's lawyers claimed National Union was simply trying to delay paying the jury award. "National would like to continue to protest this case until it wins," they wrote. "The fact that National does not agree with the decision, or would like a different decision, does not change the fact that the decision has issued and National is bound by it."
Magratten filed a reply brief, saying that no jury has found the insurance company liable and that the Supreme Court did not order a judgment against National Union.
Lennon "incorrectly characterizes this as a mandate for this court to blindly and unconstitutionally enter final judgment against a party who has not had its day in court," Magratten wrote. "While [Lennon] attempts to impugn National Union for 'continuing to protest this case until it wins,' [Lennon] wants this court to declare [Lennon] a 'winner' even after he lost his case against Dacomed and without having proven his case against National Union. This court should decline such an invitation."
In Wednesday's emergency motion, Lennon's lawyers emphasized that the Supreme Court had said "the judgment against National Union is modified in accordance with this opinion" -- meaning the jury award had been lowered from $700,000 to $400,000 -- and that Lennon had 20 days to accept the $400,000 or choose a new trial on damages.
The high court's decision was "clear and precise" and "did not authorize the court below to engage in any further, or other, proceedings expect as specifically mandated," Lennon's lawyers wrote. Therefore, they said, Monday's ruling by Clifton "cannot stand."