68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2787
Senate Bill 1018
Sponsored by Senator SORENSON; Senators BAKER, BRADBURY, CEASE,
SPRINGER, Representatives BRIAN, BROWN, CARTER, CORCORAN,
EIGHMEY, FEDERICI, HAYDEN, LEHMAN, NAITO, PARKS, PIERCY,
SHIELDS, WOOTEN
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows Department of Human Resources to recover from
manufacturers costs of medical assistance for recipients under
medical assistance program harmed by use of, or exposure to,
tobacco products.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to recovery of medical assistance; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 7 of this Act are added to and
made a part of ORS chapter 414. + }
SECTION 2. { + As used in this 1995 Act:
(1) 'Department' means the Department of Human Resources.
(2) 'Tobacco products' means tobacco products as defined under
ORS 323.500, cigarettes as defined under ORS 323.010 and the
component ingredients, parts or raw materials thereof.
(3) 'Manufacturer' has the meaning provided under ORS 323.010
and includes any corporation that owns a controlling share of the
outstanding stock of the manufacturer, but does not include a
distributor or seller of tobacco products if:
(a) The distributor or seller did not manufacture tobacco
products at any time; and
(b) A controlling share of the outstanding stock of the
distributor or seller has not been owned by a corporation that at
the same time owned the controlling shares of outstanding stock
of a manufacturer. + }
SECTION 3. { + The Department of Human Resources has a cause
of action against a manufacturer of tobacco products to recover
the full amount of medical assistance provided to a recipient
under the medical assistance program established by this chapter
for the treatment of disease, illness or addiction caused by the
use of or exposure to tobacco products. The cause of action is
independent of any rights or causes of action of the
recipient. + }
SECTION 4. { + (1) In the event that medical assistance has
been granted under this chapter to more than one recipient, and
the Department of Human Resources elects to seek recovery from a
manufacturer of tobacco products due to actions by the
manufacturer of tobacco products or circumstances that involve
common issues of fact or law, the department may bring an action
in one proceeding to recover sums paid to all such recipients for
the treatment of disease, illness or addiction caused by the use
of or exposure to tobacco products. In any action brought under
this subsection, the Oregon Evidence Code shall be liberally
construed regarding the issues of causation and of aggregate
damages. The issues of causation and damages in any such action
may be proven by use of statistical analysis.
(2) In any action under subsection (1) of this section, the
department shall not be required to identify the individual
recipients for whom payment has been made, but rather can proceed
to seek recovery based upon payments made on behalf of an entire
class of recipients.
(3) In any action brought under subsection (1) of this section
in which a manufacturer is liable due to the manufacture of
tobacco products, the department shall be allowed to proceed
under the theory established in subsection (4) of this section,
provided that the department is unable to determine the identity
of the manufacturer of the tobacco products used by the
recipient, that the tobacco products are substantially
interchangeable among brands and that substantially similar
factual or legal issues would be involved in seeking recovery
against each manufacturer individually.
(4) If the conditions in subsection (3) of this section are
met, the department may bring the action against all
manufacturers who manufacture a substantially similar tobacco
product and whose sales constitute a substantial part of all
sales of the tobacco product. In any action under this
subsection, each manufacturer of tobacco products may be held
jointly and severally liable with all other manufacturers of
tobacco products. Unless a defendant against whom an action is
brought under this subsection can establish that the defendant
could not have been the manufacturer of the tobacco product, the
defendant is liable for a percentage of any monetary judgment
entered in the action that is equal to the defendant's share of
the market in this state for the product.
(5) The department need not notify a recipient of an action
brought under this section, and a recipient has no right to
become a party to any action brought under this section.
+ } { + SECTION 5. + } { + Notwithstanding ORS 30.905 or
any other statute of limitation provided for by law, an action by
the Department of Human Resources under sections 3 and 4 of this
1995 Act must be commenced within five years after the date on
which the last payment of medical assistance is made to a
recipient under this chapter. + }
SECTION 6. { + Section 5 of this 1995 Act applies to all
causes of action, whether arising before, on or after the
effective date of this 1995 Act, and operates to revive a cause
of action barred by the operation of ORS 30.905 or any other
statute of limitation before the effective date of this 1995 Act
if an action is commenced within the time provided by section 5
of this 1995 Act. + }
SECTION 7. { + As provided in ORS 180.140, the Attorney
General may employ the services of private counsel in bringing an
action pursuant to sections 3 and 4 of this 1995 Act. + }
SECTION 8. { + This Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this Act takes effect on its
passage. + }
----------