TOBACCO CONTROL LAWS

Nat'l Comm. to Preserve Social Security and Medicare v. Philip Morris USA, Inc.

In an action under the Medicare Secondary Payer Act, the plaintiffs, two taxpayer advocacy groups and a Medicare recipient, sought to recover twice the amount of Medicare costs advanced because of tobacco-related health issues.  The plaintiffs claimed the tobacco companies committed a battery against the users of their products by exposing them to the harmful and addictive properties of nicotine without their consent.  The case turned on the statutory interpretation of the requirement to reimburse Medicare if there is a “demonstration” that a primary carrier was responsible.  Ultimately, the court dismissed the case before trial based on the court’s interpretation of the statute and previous case law addressing the same issue.  The court also expressed trepidation towards to a possible watershed effect of accepting the plaintiffs’ interpretation.

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National Comm. to Preserve Social v. Philip Morris, 601 F.Supp.2d 505 (E.D.N.Y., 2009)

  • United States
  • Mar 5, 2009
  • UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Parties

Plaintiff

  • James Mokeler, on behalf of Medicare
  • Medicare RIghts Center
  • National Committee to Perserve Social Security and Medicare

Defendant

  • Liggett Group, LLC
  • Lorillard Tobacco Co.
  • Philip Morris USA, Inc.
  • RJ Reynolds Tobacco Co.
  • The American Tobacco Co.

Legislation Cited

Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)

Related Documents

None

Type of Litigation

Health Care Cost Recovery
Governments or insurance agencies may seek reimbursement from the tobacco companies for health care costs related to tobacco. The most famous example is the case brought by individual states in the U.S.A. that resulted in the Master Settlement Agreement.
Personal Injury
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.

Tobacco Control Topics

Liability
Measures dealing with criminal and civil liability, including compensation. (See FCTC Art. 19)

Substantive Issues

Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Consumer Protection Violation

Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.

Industry-Perpetrated Fraud
The tobacco industry may have perpetrated a fraud upon the public or the courts by presenting false information or deliberately hiding known-facts.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

None

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