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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

                                   Plaintiff,

                         v.

PHILIP MORRIS INCORPORATED,
          et al.,

Defendants.



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Civil Action
No. 99-02496 (GK)

Next scheduled court appearance:
November 2, 2000

 

 

UNITED STATES' MOTION TO LIMIT COURT'S ORDER DISMISSING COUNT ONE OF COMPLAINT TO CLAIMS FOR PAYMENTS UNDER MEDICARE AND FEHBA, AND INCORPORATED
STATEMENT OF POINTS AND AUTHORITIES

MOTION

     The United States hereby moves this Court for an Order amending that portion of its Memorandum Opinion and Order, filed September 28, 2000, that dismissed Count 1 of the Complaint in its entirety. The government asks the Court to reinstate Count 1 except to the extent that it seeks recovery under the Medical Care Recovery Act ("MCRA"), 42 U.S.C. § 2651 et seq., for health care payments under Medicare and the Federal Employees Health Benefits Act ("FEHBA"). The United States makes this motion pursuant to Rule 60 of the Federal Rules of Civil Procedure, on the grounds that such relief is required to conform the Court's Order of dismissal with the rationale of the Court's Memorandum Opinion, which acknowledged that other agencies, such as the Department of Defense and the Department of Veterans Affairs, "have, and have always had, an undisputed and established right to recovery under MCRA . . . ." Memorandum Opinion ("Opinion") at 22-23.

     This motion is based upon the Statement of Points and Authorities, incorporated herein, and upon all of the pleadings, records, and files in the above-captioned proceeding.

     WHEREFORE, the United States requests that the Court enter an Order limiting the Court's dismissal of Count 1 of the Complaint to the government's claims for payments under Medicare and FEHBA, and that the Court reinstate Count 1 to the extent it seeks recovery under MCRA for medical payments made under DOD, VA, and programs other than Medicare or FEHBA. Plaintiff is submitting a proposed order with this motion.

STATEMENT OF POINTS AND AUTHORITIES

A.   Introduction

     In Count 1 of its Complaint, the United States seeks recovery pursuant to MCRA of its expenditures under several healthcare programs. See Complaint ¶ 128 (seeking, inter alia, expenditures under DOD and VA programs, Medicare and FEHBA). The defendants moved to dismiss the Complaint, and, as to Count 1, argued that the government could not recover its Medicare and FEHBA expenditures under MCRA. Although the defendants challenged recovery for non-Medicare and non-FEHBA recovery insofar as the government did not name individuals who suffered smoking related injuries, they did not dispute that MCRA provides for the recovery of other, non-Medicare and non-FEHBA, health care costs. See Certain Defendants' Memorandum of Law in Support of Motion to Dismiss ("Defendants' Memorandum") at 8-9. In its Opinion, the Court noted that the government's expenditures under these other health care programs are properly recovered under MCRA. Opinion at 20, 21, 22-23. Nonetheless, the Court dismissed Count 1 of the government's Complaint in its entirety, even to the extent the government sought recovery of its non-Medicare and non-FEHBA expenditures. See Opinion at 28, 55; September 28, 2000 Order.

     In this motion, the government requests only that the Court amend its Order and Opinion to conform to the legal conclusion that, in addition to Medicare and FEHBA, there are expenditures alleged in the government's Complaint that are recoverable under MCRA. The government is not here challenging the Court's determination that Medicare and FEHBA expenditures may not be recovered pursuant to MCRA.

B. Discussion

     The Court may amend its order dismissing Count 1 in it entirety pursuant to Fed. R. Civ. P. 60. See Howard Sober, Inc. v. I.C.C., 628 F.2d 36, 41 (D.C. Cir. 1980). In seeking recovery under MCRA, the United States explicitly alleged that:

[e]ach year, the United States, pursuant to various statutory entitlement programs, furnishes and pays for hospital, medical, surgical, and dental care . . . for numerous current and former consumers of the Cigarette Companies' products. The statutes pursuant to which the United States furnishes and pays for such health care costs include, but are not limited to, . . . the Medicare statute . . . [; statutes] pursuant to which the Department of Veterans . . . provides and pays for . . . health care services for veterans . . .[; statutes] pursuant to which the Department of Defense . . .  provides and pays for health care services . . . for millions of current members and certain former members of the uniformed services [; ] . . . the Federal Employees Health Benefits Act . . . .

Complaint ¶ 128.

     Indeed, in its September 28, 2000 Opinion, the Court recognized that CHAMPUS, the Air Force, the Navy, and the Coast Guard "have, and have always had, an undisputed and established right to recovery under MCRA . . . ." Opinion at 22-23; see also Opinion at 20 (MCRA enables government to recover expenses under DOD, Public Health Service, and VA); 20-21 (recovery under the Federal Employees' Compensation Act ("FECA")); 21 (FECA is covered by MCRA).

     Even the defendants repeatedly acknowledged in their motion to dismiss that the government may, pursuant to MCRA, recover its expenditures under the other programs asserted in the Complaint. See Defendants' Memorandum at 13-14 ("Both the 1962 House and Senate Reports go on to state explicitly that MCRA is to apply to recovery of costs under '[s]tatutes providing for care by the Department of Defense to military personnel and their dependents, the Public Health Service to Coast Guard personnel and other classes of persons, and the Veteran's Administration to veterans.'"). (1)

     Thus, despite the Court's conclusion that, besides Medicare and FEHBA, there are damages sought by the United States' Complaint for which the governmental agencies "have, and have always had, an undisputed and established right to recovery under MCRA," (Opinion at 22-23), the Court dismissed the MCRA count in its entirety. Pursuant to Rule 60, the government respectfully requests that the Court amend its Opinion and Order and conform it to the legal conclusions reached in the Court's Opinion. (2)

C. Conclusion

     For the foregoing reasons, the United States respectfully requests that the Court amend its September 28, 2000 Opinion and Order dismissing Count 1 of the Government's Complaint in its entirety, and limit the dismissal to claims for payments under Medicare (Complaint ¶ 128(1)) and FEHBA (Complaint ¶ 128(4)).

Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

(D.C. Bar #375951)

WILLIAM B. SHULTZ
Deputy Assistant Attorney General
(D.C. Bar #218990)

THOMAS J. PERRELLI
Deputy Assistant Attorney General
(D.C. Bar #438929)

 

 

 

Dated: October 13, 2000

_____________________________
SHARON Y. EUBANKS (D.C. Bar #420147)
Director, Tobacco Litigation Team

PAUL M. HONIGBERG (D.C. Bar #342576)
Deputy Director, Tobacco Litigation Team


_____________________________
ELIZABETH A. WELSH (Bar # 437469)
Senior Trial Counsel, Tobacco Litigation Team
Civil Division
United States Department of Justice
Post Office Box 14524
Ben Franklin Station
Washington, DC 20044-4524
Telephone: (202) 616-4185

Attorneys for Plaintiff United States of America


 

1. See also Defendants' Memorandum at 14 ("The courts have repeatedly ruled that MCRA is directed toward these separate direct-care programs for military personnel, veterans and other limited classes of Government personnel."); 17 (various Armed Forces "healthcare expenditures actually are covered by MCRA," and citing regulations in footnote) (emphasis in original); 20-21 (same); 30 ("Each of the regulations issued after the enactment of the 1996 [MCRA] amendment states that the rates pertain to recovery 'through three separate Federal agencies,' which the regulations then specify as the 'Department of Defense,' the 'Department of Health and Human Services, Indian Health Service,' and the 'Department of Veterans Affairs.'").

2. The government notes that neither the Complaint's recitation of some of the statutes pursuant to which the United States furnishes and pays for health care (Complaint at ¶ 128), nor the Court's enumeration of agencies that have a right to recover under MCRA (Opinion at 23) is exhaustive. As defendants' motion to dismiss notes, there are other programs, such as the Indian Health Service, through which the United States furnishes and pays for medical care and for which the government seeks recovery of its damages under MCRA. Defendants' Memorandum at 30.


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

                                   Plaintiff,

                      v.

PHILIP MORRIS INCORPORATED, et al.,

Defendants.



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Civil Action No. 99-02496 (GK)

 

 

 


 

ORDER

     UPON CONSIDERATION OF United States' Motion to Limit Court's Order Dismissing Count One of Complaint to Claims for Payments Under Medicare and FEHBA, any opposition thereto, and the entire record herein, it is this _____ day of ______________, 2000,

     ORDERED that the United States' Motion is GRANTED; and it is further

     ORDERED that the Court's September 28, 2000, Opinion and Order dismissing Count 1 of the Government's Complaint in its entirety, is amended. Only subsections (1) and (4) of ¶ 128 are dismissed.

  ____________________
Gladys Kessler,
U.S. District Judge

CERTIFICATE OF SERVICE

     I certify under penalty of perjury that on this 13th day of October, 2000, I caused to be served by First Class mail, postage prepaid, a copy of "United States' Motion to Limit Court's Order Dismissing Count One of Complaint to Claims for Payments Under Medicare and FEHBA, and Incorporated Statement of Points and Authorities" to the following:

Attorneys for defendants Philip Morris, Inc. and Philip Morris Companies, Inc.:

 

Timothy M. Broas, Esq.
WINSTON & STRAWN
1400 L Street, N.W.
Washington, D.C. 20005-3502

Herbert M. Wachtell, Esq.
Steven M. Barna, Esq.
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, New York 10019-6150

Daniel K. Webb, Esq.
Thomas J. Frederick, Esq.
WINSTON & STRAWN
35 West Wacker Drive, Suite 4200
Chicago, Illinois 60601

Attorneys for defendant R.J. Reynolds Tobacco Company:

Robert F. McDermott, Jr., Esq.
Paul S. Ryerson, Esq.
JONES, DAY, REAVIS & POGUE
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113

Robert C. Weber, Esq.
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190

Attorneys for defendant Brown & Williamson Tobacco Company
(individually, and as successor in interest to The American Tobacco Company):

David M. Bernick, Esq.
Stephen R. Patton, Esq.
KIRKLAND & ELLIS
200 East Randolph Drive
Chicago, Illinois 60601

Kenneth N. Bass, Esq.
KIRKLAND & ELLIS
655 15th Street, N.W., Suite 1200
Washington, D.C. 20005

Attorneys for defendant Liggett Group, Inc.:

Marc E. Kasowitz
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
1301 Avenue of the Americas
New York, NY 10019-6022

Fred W. Reinke
Kenneth A. Gallo
CLIFFORD CHANCE ROGERS & WELLS LLP
607 Fourteenth Street, N.W.
Washington, D.C. 20005-0736

Attorneys for defendant B.A.T Industries p.l.c.

Michael A. Schlanger
Sonnenschein Nath & Rosenthal
1301 K Street, N.W.
Suite 600, East Tower
Washington, D.C. 20005

Michael V. Corrigan, Esq.
Mary E. McGarry, Esq.
Demetra V. Frawley, Esq.
SIMPSON, THACHER & BARTLETT
425 Lexington Avenue
New York, New York 10017-3954

Attorneys for defendant British American Tobacco (Investments)
Limited (f/k/a British-American Tobacco Company Limited):

Garyowen P. Morrisroe, Esq.
CHADBOURNE & PARKE
30 Rockefeller Plaza, 34th Floor
New York, New York 10112

Attorneys for defendant the Council for Tobacco Research-U.S.A., Inc.:

Steven Klugman, Esq.
Dennis Hranitzky, Esq.
Bruce C. Merritt, Esq.
DEBEVOISE & PLIMPTON
875 Third Avenue
New York, New York 10022

Attorneys for defendant the Tobacco Institute, Inc.:

James A. Goold, Esq.
Keith A. Teel, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, D.C. 20044-7566

Attorneys for defendant Lorillard Tobacco Company:

J. William Newbold, Esq.
Richard P. Cassetta, Esq.
THOMPSON COBURN LLP
One Mercantile Center, Suite 3500
St. Louis, Missouri 63101-1693

Gene E. Voigts, Esq.
Richard L. Gray, Esq.
SHOOK, HARDY & BACON LLP
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105-2118

 

 

 

Updated October 20, 2014