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Medalie v. Bayer Corporation: CIVIL PROCEEDURE - Medicare law not qui tam; no expert>no injury>no standing>dismiss

United States Court of Appeals
No. 07-1126
Richard J. Medalie, *
Plaintiff Appellant, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Bayer Corporation; Bayer AG; *
GlaxoSmithKline PLC; SmithKline *
Beecham Corporation, *
Defendants Appellees. *
Submitted: October 18, 2007
Filed: December 28, 2007
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge.
The plaintiff, Richard J. Medalie, brought suit under the Medicare Secondary
Payer statute (the MSP) against the drug companies that developed, manufactured,
and marketed the drug Baycol. See 42 U.S.C. 1395y(b)(3)(A) (establishing a private
cause of action). Medalie sought to recover all of Medicares expenditures made to
diagnose and treat the personal injuries and adverse effects to Medicare beneficiaries
resulting from use of Baycol. Medalie alleged in his complaint that he took Baycol,
suffered injuries, and incurred medical costs that Medicare covered. Medalie did not
seek damages on his own behalf, but only for the United States.
1The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
The Judicial Panel on Multidistrict Litigation transferred Medalies case to the
district court1 for coordinated pretrial proceedings along with thousands of other cases
involving injuries caused by Baycol. In a pretrial order applicable to all the cases, the
district court required that each plaintiff submit a case-specific report from a medical
expert attesting that Baycol caused injury or damage. If a plaintiff did not comply
with the order by the stated deadline, the district court dismissed that plaintiffs case
with prejudice. Twice Medalie requested clarification that the order did not apply to
his claim under the MSP statute. In the alternative, Medalie sought to amend his
complaint to delete any reference to his personal injuries. Medalie received no
response from the district court and filed no experts report. The district court
dismissed his case. This appeal followed.
Standing is a threshold inquiry and jurisdictional prerequisite that must be
resolved before reaching the merits of a suit. City of Clarkson Valley v. Mineta, 495
F.3d 567, 569 (8th Cir. 2007) (internal quotation omitted). The constitutional
minimum of standing requires an injury in fact, a causal connection between the
injury and the conduct complained of, and a likelihood the injury will be redressed
by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992) (internal quotations omitted). Since [the standing elements] are not mere
pleading requirements but rather an indispensable part of the plaintiffs case, each
element must be supported in the same way as any other matter on which the plaintiff
bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation. Id. at 561.
Medalie failed to comply with the discovery order to submit an experts report
attesting personal injuries from use of Baycol. He also requested leave to amend his
complaint to remove any allegations of personal injuries. If we were addressing the
threshold issue of standing based only on the complaint, we might conclude that
Medalie has standing. As quoted above, however, standing must be proved with the
manner and degree of evidence required at the successive stages of the litigation. Id.
Here, the litigation has progressed, and the district court ordered the submission of
experts reports attesting to the presence of injury caused by Baycol. Because
Medalie failed to submit such a report, he failed to meet the evidentiary burden
necessary to show standing during the discovery stage of the litigation.
Medalie argues that no showing of injury is required because the MSP is a qui
tam statute. We rejected this argument in Stalley v. Catholic Health Initiatives, Nos.
06-3884, 06-4121, 2007 WL 4165751 (8th Cir. Nov. 27, 2007), when we held that
the private right of action provided by 42 U.S.C. 1395y(b)(3)(A) is not a qui tam
statute, and [a plaintiff], who is a volunteer and who lacks any injury in fact, does not
have standing to pursue such an action. Id. at *8. The MSP allows a private
plaintiff to assert his own rights, not those of the government. Id. at *4.
We affirm the district courts dismissal of the complaint.


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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