Plaintiff brought a claim under 42 U.S.C. § 1395y(b)(3)(A) to recover funds for the Medicare program attributable to cigarette smoking. The trial court dismissed the claim. On appeal, the court found that “[u]ntil Defendants’ responsibility to pay for a Medicare beneficiary’s expenses has been demonstrated (for example, by a judgment), Defendants’ obligation to reimburse Medicare does not exist under the relevant provisions. … After the Medicare beneficiary obtains a favorable judgment or settlement of state tort claims, Medicare is entitled to reimbursement to the extent of its conditional payments” The decision was affirmed. Decided: August 14, 2006. See also United Seniors Ass’n v. Philip Morris USA, 2006 U.S. Dist. LEXIS 60729 (D. Mass. 2006).

Note: 42 U.S.C. § 1395y(b)(2)(A) creates a private right of action with double recovery where private parties bring actions to enforce Medicare’s rights. This case does not prevent a party from filing the MSP claim in their complaint. See Rule 18(a). However, bringing this claim would not confer federal jurisdiction unless and until the underlying liability is established because the claim is dormant until that time.