Vermont § 1911 - Tobacco manufacturers; liability for Medicaid expenditures

§ 1911. Tobacco manufacturers; liability for Medicaid expenditures

• (a) After the State has paid medical assistance benefits to eligible persons for tobacco-related
  health conditions under this chapter, the State may recover from tobacco manufacturers
  the amount paid or likely to be paid for medical assistance to such persons, plus
  punitive damages, costs, reasonable attorney’s fees, and other appropriate relief. (b) The cause of action created in this section shall be a direct cause of action and
  not a subrogated cause of action. Affirmative defenses relating to subrogated causes
  of action shall not apply to this direct cause of action. (c) In order to recover under subsection (a) of this section, the State shall prove: (1) that the tobacco manufacturers were either negligent or produced a defective product
  unreasonably dangerous to the user or consumer who received or will receive medical
  assistance; (2) that the tobacco product caused the health conditions for which the State seeks reimbursement;
  and (3) the amount of compensatory damages and the appropriateness of any other relief sought. (d) The right of the State to bring a cause of action against a tobacco manufacturer under
  this section shall be independent of and not construed to affect any rights or causes
  of action by an individual Medicaid benefits recipient to recover damages or other
  relief as a result of a tobacco-related health condition. In the event that recovery
  of Medicaid expenditures has been achieved and the individual recipient thereafter
  recovers damages from a tobacco manufacturer, then the tobacco manufacturer shall
  be entitled to a setoff for the amount of any such Medicaid recovery which represents
  the expenditure on behalf of the individual recipient. (e) Existing common law and statutory actions available to recover Medicaid expenditures
  from a tobacco manufacturer, including direct action, are expressly preserved. An
  action brought pursuant to this section may be brought in addition to any existing
  common law or statutory action, or both, and shall not preempt, limit, or extinguish
  those actions. (f) In any action brought pursuant to this section: (1) Joint and several liability applies to any judgment in favor of the State, except
  as provided in subdivision (2) of this subsection. (2) The State may proceed under the market share theory for allocation of damages between
  or among tobacco manufacturers, provided that the tobacco products involved are substantially
  interchangeable among brands, and substantially similar factual and legal issues are
  involved in seeking recovery against each individual tobacco manufacturer. In the
  event the State elects to proceed under the market share theory, joint and several
  liability shall not apply. (3) Sums paid to all recipients may be recovered in a single action. (4) If the number of recipients is sufficiently large so that it is impracticable to identify
  the recipients, the court may require the State to release information on individual
  recipients including individual Medicaid and medical records that are in the possession,
  custody, or control of the State, to the extent necessary for the defendant to establish
  its defenses, subject to such orders as are necessary to maintain the privacy of the
  recipients and to prevent Medicaid fraud. (5) Evidence of statistical analysis may be admissible to prove or rebut the elements
  of subdivisions (c)(2) and (3) of this section. (g) Before the State enters into a contract with an attorney to represent the State in
  an action brought pursuant to this section, the contract shall be reviewed and approved
  by the Joint Fiscal Committee. The Joint Fiscal Committee shall approve the contract
  if it determines that the contract is reasonable under the circumstances. (Added 1997, No. 142 (Adj. Sess.), § 3, eff. April 23, 1998.)