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• Seniors Group Girds for Next Round in Fight to Recover Billions From Tobacco Companies for Taxpayers 

Late yesterday, United Seniors Association, Inc. filed notice that it will appeal the August 28 dismissal by U.S. District Judge Richard Stearns in Boston of its lawsuit against American tobacco companies seeking recovery of damages on behalf of the Medicare program and the Treasury of the United States. United Seniors Association (USA) says its appeal will rely on a decisive finding of facts establishing tobacco companies' liability rendered in a judgment in a separate U.S. racketeering case issued a few days before Judge Stearns' decision.

The civil lawsuit, United Seniors Association, Inc. v. Philip Morris USA, et al, was filed August 4, 2005 under the authority of the "private attorneys general" provisions of the Medicare as Secondary Payer Act, a U.S. statute requiring Medicare to be repaid for healthcare expenses arising from work related accidents, medical malpractice, wrongdoing and other situations in which another party (the "primary payer") is determined to be responsible. The USA suit seeks recovery of at least $70 billion for federal taxpayers . . .

"While we have the utmost respect for Judge Stearns, this new development completely satisfies the standard Judge Stearns used to dismiss this case, and so his ruling should be reversed and USA given its day in court," explained Charlie Jarvis, chairman and chief executive of USA, a Virginia based conservative group advocating free-market solutions and defending taxpayers' rights. "By demonstrating factually that the tobacco industry defrauded the public and perpetrated a 'battery' upon smokers by intentionally deceiving them about the addictive properties of nicotine and adjusting the substance levels to maximize the number of addicts, Judge Kessler's judgment clearly demonstrates tobacco companies' responsibility to pay back Medicare and taxpayers for the expenses to treat tobacco related illnesses."

In her decision, Judge Kessler further described the tobacco companies as "an industry that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national healthcare system."

Under the principle of "collateral estoppel," when an issue of ultimate fact has been determined against a party by a valid court judgment, that issue cannot again be litigated by the same party in future litigation. Therefore, Mr. Jarvis says, the underlying facts in USA's federal civil suit against the tobacco companies have been established beyond challenge by Judge Kessler's judgment in the earlier federal civil suit against the same defendants.

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