toxic tort litigation

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Companies and their attorneys risk monetary penalties and DOJ enforcement if they fail to ensure that toxic tort and personal injury plaintiffs reimburse Medicare.

By Christine Rolph, Taiga Takahashi, and Holly Bainbridge

The US Department of Justice (DOJ) has filed numerous enforcement actions against defendant companies and law firms based on an alleged failure to reimburse the government for its share of personal injury and toxic tort settlements, pursuant to the Medicare Secondary Payer Act (MSP Act), as amended by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007.[1] Medicare now seeks to enhance its enforcement of penalties for non-compliance, proposing a rule that implements the MSP Act’s reporting requirements. Under the MSP Act, inaccurate reporting of settlements, judgments, or other payments made to Medicare beneficiaries may result in a civil monetary penalty up to US$1,000 per day per Medicare beneficiary.

The new rule, if finalized, would provide guidance on how and when penalties should be assessed, as well as facilitate increased government monitoring of compliance. The clear message to all parties in toxic tort and personal injury litigation is to investigate whether any plaintiffs are Medicare recipients and, if so, to ensure full compliance with the reporting and reimbursement requirements in the MSP Act.

Recent decisions have excluded plaintiffs’ expert opinions that fail to estimate actual exposure and prove it was sufficient to cause injury.

By Christine G. Rolph and Laura J. Glickman

Recent federal court rulings in toxic tort litigations have stressed the importance of the dose-response relationship and the need to carefully evaluate the level of exposure to pass the Daubert standard for expert witness admissibility under the Federal Rules of Evidence 702. Under the Daubert standard, courts must assess whether the reasoning or methodology underlying the expert testimony is scientifically valid and whether those reasons or methodologies can be properly applied to the facts at issue. Dose-response methodology studies the relationship between the quantity of a substance (dose) and its overall effect (response) on a person, and is “the hallmark of basic toxicology.”[1] The courts continue to scrutinize experts’ dose-response analysis to determine the reliability of that testimony on specific causation. The following three cases highlight the importance of a thorough dose-response analysis in any expert opinion that evaluates a plaintiff’s exposure and harm.