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A legal theory allowing bounty hunters to sue tobacco companies first dreamed up by a Washington lawyer and a Baltimore law professor is “imaginative,” but ultimately does not hold water, Eastern District of New York Judge Jack B. Weinstein has ruled. Weinstein on Friday rejected a class action brought by four firms that sought to use a bounty provision of a 1980 amendment to the federal Medicare statute to achieve a double recovery from the tobacco companies. The firms claimed the statute allowed them to recover double any amounts expended by the Medicare program for the treatment of smoking-related illnesses. Under the statute, the government, if successful, would receive any amount it had spent on health care, and the class members bringing the “bounty” action would get an equal amount. The lawsuit, Mason v. American Tobacco Co. et al., 00-04442, had the vigorous backing of the federal government, which is pursuing its own action for recovery of sums spent through the Medicare program to treat smoking-related illnesses. That lawsuit, U.S. v. Philip Morris, 99-2496, is pending before Judge Gladys Kessler in the U.S. District Court for the District of Columbia. The idea of using the Medicare amendment as the legal predicate for a lawsuit against the tobacco industry originated with Jonathan Cuneo, a commercial class action lawyer at the Cuneo Law Group, and Baltimore Law School Professor Charles Tiefer, according to Robert J. Cynkar of Cooper & Kirk, one of the four firms representing the plaintiffs. The four firms pressing the suit were the Cuneo group and Cooper & Kirk, both in Washington, D.C.; Hutton & Hutton in Wichita, Kan.; and Ronald D. Wells of Dallas. The 1980 amendment, known as the Medicare Secondary Payor statute, 42 USC � 1395y(b)(3)(A), authorized bounty lawsuits against insurance companies, such as health insurers or automobile liability carriers, who had the primary obligation to cover a person’s medical expenses ahead of the Medicare program, but had failed to make required payments. To bring the tobacco companies within the reach of the statute, the putative plaintiff class in Mason contended that cigarette makers were self-insurers for the purpose of covering any injuries caused by their products. Plaintiffs’ novel claim fell short on that point, Judge Weinstein concluded. “Defendants’ status as accused tortfeasors, standing alone,” he wrote, “does not convert them under the statute into primary plans or self-insured plans for Medicare beneficiaries using their products.” To adopt the plaintiffs’ argument, Weinstein noted, “would distort the federal-state tort balance by creating a harsh (double recovery) shadow federal tort action in any case where medicare payments were made on behalf of any person injured by almost any delict.” Six tobacco companies were named as defendants in the suit. Brown & Williamson was represented by Sedgwick, Detert, Moran & Arnold; Kirkland & Ellis; and Goodwin, Proctor & Hoar. R.J. Reynolds was represented by Jones, Day, Reavis & Pogue, and Womble Carlyle Sandridge & Rice. Representing Lorillard Tobacco was Greenberg Traurig, and Shook, Hardy & Bacon. Philip Morris was represented by Arnold & Porter; Dechert Price & Rhoads; Collier, Shanon, Rill & Scott; and Goodwin Proctor. Representing U.S. Tobacco was Skadden, Arps, Slate, Meagher & Flom. And the Liggett and Brooke Group was represented by Kasowitz Benson Torres & Friedman.

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