United Seniors Association, Inc. v. Philip Morris USA, et al.

United Seniors Association brought action against five tobacco companies, seeking reimbursement for the costs incurred by the federal Medicare program since 1999 from the medical treatment of persons suffering from smoking-related illnesses.  The lower court had dismissed the case, holding that United Seniors Association could not file for compensation before the alleged damage was determined. The court affirmed the dismissal, but on a different ground.  The Court held that United Seniors Association did not have standing under Medicare Secondary Payer statute because it had failed to allege that it represented Medicare beneficiaries "who received unreimbursed Medicare payments for treatment of smoking-related injuries" and because MSP does not provide for a qui tam (whistle blower) action and therefore, the companies could not be penalized. 

United Seniors Association, Inc. v. Philip Morris USA, et al., 500 F.3d 19 (1st Cir. 2007).

  • United States
  • Aug 20, 2007
  • United States Court of Appeals, First Circuit
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Parties

Plaintiff United Seniors Association, Inc.

Defendant

  • Brown & Williamson Tobacco Corporation
  • Liggett Group, Inc.
  • Lorillard Tobacco Company
  • PHILIP MORRIS USA
  • R.J. Reynolds Tobacco Company

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"By contrast to FCA § 3730(b), MSP § 1395y(b)(3)(A) reads, in its entirety: "There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A)." No mention is made of any jointly-held cause of action by the government and the private plaintiff, or of the private plaintiff's right to sue solely in behalf of the government. Indeed, the MSP contemplates that the government has its own independent causes of action, either direct or in subrogation. See 42 U.S.C. § 1395y(b)(2)(B)(iii), (iv); supra note 2. Tellingly, Congress created the causes of action in FCA § 3730(b) and MSP § 1395y(b)(3)(A) during the same month in 1986,6 and if it had meant unambiguously to create a qui tam action in the latter section, it readily could have used—but did not—the same explicit assignment language it employed in § 3730(b) (viz., "a person may bring a civil action . . . for the person and for the United States") in § 1395y(b)(3)(A). See Mullane v. Chambers, 333 F.3d 322, 331 (1st Cir.2003) (consulting other statutes to ascertain that Congress knew how to include an express exclusion "and could have done so clearly and explicitly"); accord Wood v. Spencer, 487 F.3d 1, 6 (1st Cir.2007) ("Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.") (citation omitted)."