TOBACCO: Feds May Need Congress’s Help in Suit

      While determined to proceed with a federal lawsuit against the tobacco industry to recover costs for treating sick smokers, Justice Department officials are doubtful "they can do so in a single, massive lawsuit unless Congress intervenes." The Wall Street Journal reports that outside attorneys have encouraged a suit under the Medical Care Recovery Act, which allows the government to make a claim against a third-party that has made health care costs rise. But DOJ lawyers said "MCRA doesn't specifically mention Medicare, and expenditures in that insurance program amount to roughly $10 billion of the estimated $20 billion the federal government spends every year on tobacco-related illness." Also, the law does not provide "for aggregating individual claims into one massive lawsuit in which the federal government has standing to seek recovery."

Helping Congress Out?
      Justice officials have prepared draft legislation for Congress that would not only remove these problems, but lower the federal government's burden of proof in any potential case. The draft bill is modeled after similar legislation in Florida that paved the way for Florida's successful Medicaid-recovery suit. One department official said, "We know we can sue. The question is: What is the most efficacious way? This would remove any doubt." In the absence of a legislative remedy, however, the DOJ "might have to file suits in individual states, lessening the companies' potential liability." Other options would be to sue under the Medicare Secondary Payer Act, antitrust laws or the Racketeer Influenced and Corrupt Organizations law (Cloud, 1/27).