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United States v. Philip Morris Inc.

July 27, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PHILIP MORRIS INCORPORATED, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler U.S. District Judge

MEMORANDUM OPINION - ORDER # 71

I. Introduction

The United States of America ("Plaintiff" or "the Government") brought suit against nine tobacco companies and two related entities (collectively "Defendants") *fn1 to recover health care expenditures the Government has paid for or will pay for to treat tobacco-related injuries allegedly caused by Defendants' tortious conduct, and to disgorge the proceeds of that unlawful conduct.

On September 28, 2000, the Court dismissed Count One (the Medical Care Recovery Act or "MCRA" Count) and Count Two (the Medicare Secondary Payer provisions or "MSP" Count) of the Government's original four-count complaint, United States v. Philip Morris, 116 F. Supp.2d 131 (D.D.C. 2000) ("Philip Morris" or the "Memorandum Opinion"), and dismissed Defendant B.A.T. Industries p.l.c. ("BAT Ind.") for lack of personal jurisdiction, United States v. Philip Morris, 116 F. Supp.2d 116 (D.D.C. 2000). *fn2 The Government subsequently filed the present "Motion to Limit Court's Order Dismissing Count One of the Complaint to Claims for Payments Under Medicare and FEHBA," in which it requested the Court to "reinstate Count 1 except to the extent that it seeks recovery under [MCRA] for health payments under Medicare and the Federal Employees Health Benefits Act ("FEHBA")." *fn3 Motion to Amend at 1. *fn4 Defendants oppose this Motion, contending that the MCRA Count was properly dismissed in its entirety. *fn5 Upon consideration of the Motion, the Opposition, the Reply, and the entire record herein, the Government's Motion to Amend [#171] is denied.

Neither this ruling nor the companion ruling on Defendants' Motion to Dismiss Count Two of the Amended Complaint changes the current posture of this case. The parties are proceeding with extensive discovery and are preparing for trial.

II. Analysis

A. Posture of Present Motion

The Medical Care Recovery Act ("MCRA") provides in pertinent part:

In any case in which the United States is authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment . . . to a person who is injured or suffers a disease, . . . under circumstances creating a tort liability upon some third person . . . to pay damages therefore, the United States shall have a right to recover (independent of the rights of the injured or diseased person) from said third person, or that person's insurer, the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for and shall, as to this right be subrogated to any right or claim that the injured or diseased person . . . has against such third person . . 42 U.S.C. § 2651(a), Pub. L. No. 87-693, § 1, 76 Stat. 593 (1962), as amended.

Stated in general terms, if the Government is "authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment" (collectively "health care services") to a person injured by a wrongdoer, it may recover from the wrongdoer the "reasonable value" of the health care services it provided or will provide. See Philip Morris, 116 F. Supp.2d at 139.

In Count One of its complaint, at Paragraph 128, the Government alleged that, "pursuant to various statutory entitlement programs," it furnishes and pays for health care services of "numerous current and former consumers of the [Defendants'] products" (i.e., cigarette smokers). Compl. ¶ 128. Specifically, it alleged that the "statutes pursuant to which [it] furnishes and pays for such health care costs include, but are not limited to," the following four major areas:

(1) Medicare, 42 U.S.C. § 1395 et seq., under which the Health Care Financing Administration ("HCFA") pays for the health care services of individuals over 65, individuals with disabilities, and others;

(2) Veterans benefits, 38 U.S.C. § 1701 et seq., under which the Veterans Health Administration ("VHA") and the Civilian Health and Medical Programs for Veterans Affairs ("CHAMPVA") pays for certain health care services for veterans and their dependents and survivors;

(3) Military benefits, 10 U.S.C. ยง 1071 et seq., under which the Department of Defense ("DOD") pays for the health care services of current (and certain former) members of the uniformed services, through the Civilian Health and Medical Program ...


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