mass. proposed addendums

8/2/2019 Mass. Proposed Addendums

1/25

COMMONWEALTH OF MASSACHUSETTSEASTERN COUNTIES, SS.

IN RE: MASSACHUSETTS STATE COURTASBESTOS LITIGATION

SUPERIOR COURT) MASSACHUSETTS ASBESTOS) CASES CONSOLIDATED) DOCKET)

ADDENDUM TO PRE-TRIAL ORDER NO.9Regarding Requirements ofMMSEA Sec. 111

And Medicare's Right of RecoveryIn an effort to a) facilitate the compliance of the parties to this litigation with the

requirements of the Medicare, Medicaid and SCRIP Extension Act of2007, (PL 110-173)Section 111, (MMSEA Section 111 ), b) facilitate Medicare's (includes Centers for Medicare andMedicaid Services and Medicare Secondary Payer Recovery Contractor, Coordination ofBenefits Contractor, hereinafter collectively referred to as "Medicare") right of recovery under"Medicare Secondary Payer Act," 42 U.S.C. Sec. 1395y, et seq. ("MSP") and any rules andregulations promulgated thereunder, and c) facilitate the compliance of the parties to thislitigation with the requirements of the Massachusetts Data Privacy Act, with the understandingthat Plaintiffs shall mean injured person and/or authorized representative of injured person andloss of consortium claimant, and with the Court being fully advised of the premises for thepending motion:

IT IS HEREBY ORDERED that the Motion for Entry of this Addendum to Pre-TrialOrder No.9 (hereinafter "Order") is hereby GRANTED.

IT IS FURTHER ORDERED that the privacy policy adopted by entry of this Order shallbe subject to the following terms and conditions:

{JAW0223-1}


2/25

1. For Filings in Massachusetts State Court Asbestos Personal Injury Actions:a) Form A-1- Query Information

1) In cases tiled after the date of entry of this Order, within one yearof filing the complaint, each Plaintiff shall complete and serveupon Defendants, the attached Form A-1 in conjunction withserving a completed and executed Plaintiffs Disclosure Form. Inaddition to Plaintiffs Disclosure Form, Form A-1 shall be servedupon any new defendant sought to be added to a case by aplaintiffs motion to amend the complaint at the time of the initialfiling by Plaintiff and/or at time of filing Plaintiffs DisclosureForm.

2) In cases already filed, each Plaintiff shall complete and serve uponDefendants Form A-1 within 90 days of the entry of this Order ifthe date upon which Plaintiff is required to serve a completed andexecuted Plaintiffs Disclosure Form has passed. Otherwise, FormA-1 shall be served in conjunction with Plaintiffs DisclosureForm.

3) In any cases already scheduled for trial as of the date of entry ofthis Order, within 90 days of the date of entry of this Order, eachPlaintiff shall complete and serve upon Defendants Form A -1. Ifany cases are scheduled for trial within 90 days of the date of entryof this Order, then Form A-1 must be submitted immediately afterthe entry of this Order.

4) In cases where Plaintiffs counsel is seeking exigent case statusand an expedited trial date, each Plaintiff shall complete and serveupon Defendants Form A-1 together with Plainti ffs DisclosureForm, responses to standard discovery, and authorizations.b) Form B -Reporting Information: For cases involving a Medicareeligible plaintiff, as a condition of any settlement and prior to the issuance

of any payment, Plaintiff will promptly complete in full and return theReporting Form ("Form B") to settling Defendants along with the releaseor settlement agreement. No settlement is full, fmal or enforceable untilForm B is completed. If a Defendant and/or its insurers intends to reportICD-9 or ICD-10 Codes that are inconsistent with the informationprovided by Plaintiff on Form B, prior to doing so, Defendant willreasonably notifY Plaintiffof the information to be reported, and will agreeto meet and confer prior to the filing of the report in an attempt to resolveinconsistencies to the extent possible.

{JAW0223-1}2


3/25

c) Form B - Not Required: There is no obligation to provide Form B in thefollowing instances:

i) Claimant has provided to counsel for the settling party an executedAffidavit of Plaintiff regarding Medicare non-eligibility,incorporated herewith as Form D.

ii) The parties agree that evidence in the case establishes exposure toDefendant's product, premises, or conduct occurred beforeDecember 5, 1980 and there are no pending allegations thatexposure to Defendant's product, premises or conduct occurred onor after December 5, 1980.

2. Filing/Distribution of Forms Required by the Order: Except as provided inParagraph 6, below, filing/distribution of all forms required by this Order and allrelated correspondence to the parties shall be made so as to limit distribution ofSocial Security Numbers ("SSN") or other personal/private information to theparties, their attorneys, and their insurers;

3. Purpose: Plaintiff is to complete and provide Forms A-1 and B (the "DataForms") to the settling Defendant's counsel of record. Defendants may use theseForms for the limited purpose of facilitating compliance with MSP and MMSEASection 111 rules and regulations and not for any other purpose;

4. Other Data Forms: The Court is satisfied that these Data Forms are sufficient tofacilitate the determination of the status of a Plaintiff or Plaintiffs decedent asMedicare eligible-, thus precluding the use of any other such forms theDefendants might submit to Plaint iffs Counsel for this purpose. Plaintiff will notbe compelled to complete any forms submitted for this limited purpose other thanthe Data Forms attached, except upon order of the Court or as directed byMedicare. Completion of these forms will not eliminate any discovery

(JAW0223-1)3


4/25

obligations that otherwise exist under the Massachusetts Rules ofCivil Procedureand Massachusetts Asbestos Litigation Pre-Trial Orders;

5. Confidentiality: Plaintiffs, their Counsel, the Recipients of completed DataForms, meaning Defendants, Defendant's insurers, any person or entity defined asa Responsible Reporting Entity (RRE) under Section 111, and their authorizedrepresentatives and agents, shall not file the Data Forms with this Court, or in anyother state or federal judicial forum, except as provided in Paragraph 6 of thisOrder, without an order ofCourt;

6. Permissible Use/Distribution: Defendants' Counsel are allowed to distributecompleted Data Forms to their clients, their client's insurers, .their client's nationalcoordinating counsel, and any person or entity defined as an RRE and/or theirauthorized representatives and agents for their use in reporting under MMSEASec. 111 and for other purposes associated with facilitation ofMedicare's right ofrecovery under MSP, including providing the forms to Medicare. Attorneys forthe parties, the parties themselves, their insurers and agents are prohibited fromdisclosing or disseminating the Data Forms or the information obtained solelyfrom the Data Forms to any other person or entity other than Medicare, except asis reasonably required to a) determine Medicare eligibility status, b) report asrequired under Section 111, or c) commuuicate with the U.S. Government or itsdesignee or any other person or entity necessary for the defense of any claimrelating to the requirements ofMSP and MMSEA Section 111, subject to Federaland State privacy Jaw requirements.

{JAW0223-1)4


5/25

7. Impermissible Use or Distribution: Unauthorized use or unlawful distributionof the Social Security Numbers collected under this Order in violation of theMassachusetts Data Privacy Act will be subjectto the Court's contempt powers.

Procedures for Protection ofMedicare's Right of Recovery:

8. Notice to Medicare: If Plaintiff or Plaintiffs decedent is or was Medicareeligible, then Plaintiffs counsel shall notify Medicare no later thao 14 days after

the date that the case is assigned to a trial list. For cases that have been assignedto a trial list as of the date of this Order, Plaintiffs counsel shall notify Medicareno later thao 30 days after the date of this Order.

9. Settlement: Upon the settlement of a claim where Plaintiff/Plaintiffs decedent isMedicare eligible aod the exposure established, specifically or generallyclaimed/alleged or specifically released as to Defendaot's product, premises, orconduct was both before aod after or entirely after December 5, 1980 ("Mixed orPost-December 5, 1980 Claims"), the parties will proceed as outlined insubparagraphs 9(a) through (d) below. Upon settlement of a claim wherePlaintiff/Plaintiffs /decedent is not Medicare eligible or where there is no postDecember 5, 1980 exposure established, specifically or generally claimed/allegedor specifically released as to Defendaot's product, premises or conduct ("PreDecember 5, 1980 Claims"), the parties will proceed as outlined in paragraphs

{JAW0223-1}5


6/25

9(e) or 10 below. Claims will be determined to be Pre-December 5, 1980 Claimsat or prior to the negotiation and confirmation of a settlement.

a) Escrow/Trust Account: If Plaintiff or Defendants and/or their insurersdetermine that Plaintiff is or was, or Plaintiff's decedent was Medicareeligible, Plaintiffs counsel shall hold the settlement amount (less theprocurement costs, see 42 C.F.R. 411.37) in an escrow account, clienttrust account or other like account. If Plaintiff or Plaintiffs counselreceives a notice from Medicare demanding final payment that is in excessto the amount of funds held in an escrow account trust, then he/she/theyshall use his/her/their best efforts to resolve such a demand by Medicare.If Plaintiffs or Plaintiff's counsel fails to resolve a demand for paymentasserted by Medicare then he/she/they shall notifY Defendants within 30days. If Defendants receive a notice from Medicare demanding payment,then they shall notifY Plaintiffs counsel within 30 days and Plaintiff andPlaintiff's counsel shall use his/her/their best efforts to resolve such ademand by Medicare.

b) Payment ofMedicare Reimbursement; Release of Funds FromEscrow/Trust Account: Once Plaintiff's counsel has received a waiver,final demand, case closure letter, or other documentation from Medicareor, as agreed upon by the parties, its authorized entity, confirming thatPlaintiffs obligation to Medicare is satisfied for claims arising from orrelated to Plaintiffs asbestos-related personal injury or wrongful deathclaims, and Plaintiff's counsel has paid the Medicare recovery claim, ifany, Plaintiffs counsel may then pay the settlements to the client(s) uponproviding to settling defendants a copy of the waiver Jetter or case closureletter, and/or other documentation from Medicare or, as agreed upon bythe parties, its authorized entity, confirming that Plaintiff's obligation toMedicare is satisfied. If a lien has been satisfied but such documentationis not available, then Plaintiffs counsel may provide a copy of the finaldemand letter from Medicare along with proof of payment of the Medicarelien. Proof of payment pursuant to terms of the release and this Ordermeans a copy ofa check payable to Medicare or its recipient entity with anamount matching that of the final demand and the accompanying letter toMedicare enclosing the check. Plaintiffs counsel may redact the bankname, routing number, account number and signature from the check.When a case closure Jetter is available it shall be forwarded to theDefendants upon receipt.

c) Payment of Settlement Proceeds: The parties expressly agree paymentof settlement proceeds is not conditioned upon Plaintiff providing proofthat all Medicare reimbursement claims and obligations have been

(JAW0223-1)6


7/25

d)

e)

satisfied, subject to the provisions of Paragraphs l(b), 9(a) and 9(b) of thisOrder.Medicare Addenda: In cases where Plain tiff is Medicare Eligible, unlessmutually agreed upon by the parties and their insurers, the parties agree tothe use of uniform Medicare Addenda, incorporated herewith as Form C-1Only Pre-12/5/80 Exposure Specifically or Generally Claimed!Alleged,Established or Specifically Released and Form C-2 Exposure On Or After12/5/80 Specifically or Generally Claimed/Alleged, Established orSpecifically Released. The Medicare Addenda and this Order shall be theexclusive documents setting forth the rights and responsibilities of theparties regarding the settlement of Massachusetts Asbestos Litigationcases involving potential Medicare claims.Pre-December 5, 1980 Exposure Contest: Should the categorization of aclaim as involving Pre-December 5, 1980 exposure be contested, the basisof the disagreement shall be provided to the other party and after theparties have had the opportunity to meet and confer regarding thedisagreement, then either party may submit the disagreement to theSpecial Master. The Special Master shall determine whether there are anyallegations or evidence of exposure on or after December 5, 1980. Thedispute before the Special Master and the Special Master's determinationshall be on the record. The Special Master's determination shall bereviewable by the Superior Court.

10. Where Plaintiff Is Not Medicare Eligible: In cases where at the time ofsettlement it is established that Plaintiff or Plaintiff s decedent is not or was not Medicareeligible, The Reporting Information Form B shall not be required, the Medicare Addendum shallnot be required as part of the settlement documents, and the settlement proceeds do not need tobe held in escrow and may be distributed in accordance with the applicable provisions of Mass.Gen. Laws. In such a case, the Plaintiff will provide an executed Affidavit of Plaintiff regardingMedicare non-eligibility incorporated herewith, as Form D. In the event Defendant does notagree with the contention that Plaintiff is not Medicare eligible, Defendant will promptly notifYPlaintiffs counsel of such disagreement along with the basis of the disagreement and after theparties have had the opportunity to meet and confer regarding the disagreement then either party

{JAW0223-1}7


8/25

may submit the disagreement to the Special Master. The Special Master shall determine whetherthere is any evidence ofMedicare eligibility. The dispute and the Special Master'sdetermination shall be on the record. The Special Master 's determination shall be reviewable bythe Superior Court. If, after Superior Court review (if any), a final determination is made that aPlaintiff is not Medicare eligible, then no Medicare Addendum shall be required as a part of thesettlement documents. If, after Superior Court review (i f any), a final determination is made thatclaimant is Medicare-eligible, then the matter will be handled in accordance with the terms andconditions of this Order pertaining to resolving a case involving a Medicare eligible Plaintiff.

11. Settlement Payments: Any claims of untimely payment of settlement proceedsmay be submitted to the Court for resolution. Settlements must be paid in full to Plaintiffs'counsel within 60 days of the Defendant's receipt of an agreed executed Release, MedicareAddendum and all necessary information for reporting to Medicare.

12. Medicare Changes and Clarifications: The provisions of this Consent Orderare subject to revision with leave of court should the statutes, rules, regulations and practices ofthe federal government, including MMSEA Section 111, MSP and any rules and regulationspromulgated thereunder, change..

SO ORDERED THIS_____ day of____ 2011

Charles J. RelyJustice

{JAW0223-1}8


9/25

FORMC-2[INSERT TITLE OF RELEASE]MEDICARE ADDENDUMONLY PRE-12/5/80 EXPOSURE SPECIFICALLY OR GENERALLY CLAIMED/ALLEGED,ESTABLISHED OR SPECIFICALLY RELEASED

In further consideration for the Settlement Agreement and Release (Release) to whichthis Medicare Addendum is attached and incorporated therein, [DEFENDANT], itsattorneys and insurer(s) (hereafter inclusively "RELEASEES") rely on the followingrepresentations and warranties made by [Plaintiff] ("RELEASOR") and RELEASOR'sCounsel.

I. Representations and WarrantiesRELEASOR, RELEASOR's Counsel and RELEASEES agree that all representations andwarranties made herein shall survive settlement.A. Medicare Secondary Payer.RELEASOR and RELEASOR'S counsel acknowledge and agree that the parties heretohave taken reasonable steps from the beginning of this action to comply with therequirements of 42 U.S.C. 1395y(b) and related rules and regulations (hereinaftercollectively "MSP").B. MSP applicability.

1. RELEASOR represents and warrants that [Injured person] IS or wasMedicare eligible;2. RELEASOR represents and warrants, after consultation with counsel that[injured person] was exposed to asbestos-containing products used,manufactured, sold or supplied by Defendant/RELEASEES or wasotherwise exposed to asbestos on equipment or at sites or properties forwhich RELEASEES may be legally responsible from X date to Y date.RELEASOR makes no claim for any exposure outside of those dates as toRELEASEES. RELEASOR represents and warrants the foregoing to be

true and understands that RELEASEES have relied on these statements toconclude no reporting or reimbursement obligation exists within themeaning ofMSP.

{JAW02221} No Post-1980 Exposure Page I of3


10/25

c. RELEASOR'S potential responsibility for reimbursement of claims by Medicare.I. RELEASOR and RELEASOR'S Counsel represent and warrant that if thissettlement becomes subject to a claim by Medicare and/or its contractor(hereafter inclusively "Medicare"), despite paragraph B(2) above,RELEASOR and RELEASOR'S Counsel shall provide notice to

RELEASEES within 14 days of knowledge of the claim by Medicare.RELEASOR and RELEASOR'S Counsel acknowledge and agree that it istheir responsibility, not the responsibility of RELEASEES to reimburseMedicare for any claims made by Medicare related to this settlement asfurther set forth, but not limited to, the following paragraphs.2. RELEASOR's Counsel represents and warrants that if this settlementbecomes subject to a claim by Medicare in advance of payment of theSettlement Funds to RELEASOR, RELEASOR'S Counsel shall hold theSettlement Funds, less procurement costs, in an escrow account or clienttrust account without distributing the held funds to RELEASOR or anyother person or entity until the claim by Medicare, if any, arising from orrelated to the matters forming the basis of this settlement have beensatisfied or waived.3. RELEASOR and RELEASOR's Counsel represent and warrant that if thissettlement becomes subject to a claim by Medicare after payment of thesettlement funds to RELEASOR, RELEASOR and RELEASOR'SCounsel shall timely negotiate the claim by Medicare. RELEASOR willsatisfy the claim by Medicare whether through payment or obtaining awaiver.4. RELEASOR and RELEASOR'S Counsel represent and warrant that prooffrom Medicare of said resolution will be provided to RELEASEES'Counsel by RELEASOR or RELEASOR'S Counsel timely upon receipt.

II. IndenmificationIn addition to and without limiting any other language in the Release, RELEASOR agreesto indemnify and hold harmless RELEASEES from any and all claims by Medicare thathave been or may in the future be related to, arise out of or are in connection with MSPfor any breach or failure of the RELEASOR or RELEASOR'S Counsel to comply withthe representations and warranties in this Release and Medicare Addendum.Notwithstanding any other provision of the Release to the contrary, RELEASOR shallnot be obligated to indenmify RELEASEES or their attorneys in relation to any fines orpenalties which result from the actions of RELEASEES or their attorneys and not fromthe actions or omissions of RELEASOR or RELEASOR's Counsel for failure to complywith MMSEA Section I ll , if applicable to this matter.

{JAW0222-l} No Post-1980 Exposure Page 2 of3


11/25

III. Reliance on Representations and WarrantiesIn agreeing to the Release and funding the settlement, RELEASEES are relying on therepresentations and warranties of RELEASOR and RELEASOR'S Counsel regarding[injured person]'s Medicare status and the actions RELEASOR and RELEASOR'SCounsel have represented they have taken and/or will take to satisfy any and all claims byMedicare, should they arise, pertaining to the matters forming the basis ofRELEASOR'sclaims.In the event that the above representations are not correct or the above actions are notperformed, nothing contained in this release shall be construed to limit the rights ofRELEASEES to pursue all available remedies at law or in equity for breach of theRelease.RELEASOR has reviewed this release with advice of counsel and executes it as his/herown free act and deed and signed under the pains and penalties of peljury.Executed in__________County,____ his__ day of20_.RELEASOR

WITNESS

{JAW0222-1} No P o s t ~ 1 9 8 0 Exposure Page 3 of3


12/25

FORMC-1[INSERT TITLE OF THE RELEASE]MEDICARE ADDENDUMEXPOSURE ON OR AFTER 12/5/80 SPECIFICALLY OR GENERALLY CLAIMED/ALLEGED,EVIDENCED OR SPECIFICALLY RELEASED

In further consideration for the Release and Agreement (hereinafter "Release") towhich this Medicare Addendum is attached and incorporated therein, [Defendant name]and all persons, companies and firms now or previously affiliated with or under thecommon ownership of said corporation, or for whose conduct [Defendant name] is, was,or hereafter could be liable, and each of their respective officers, directors, agents,servants, employees, predecessors, successors, assigns, subsidiaries, affiliates, divisionsand insurers (hereinafter "RELEASEES"), and their attorneys rely on the followingrepresentations and warranties made by [Plaintiff name(s)] (hereinafter "RELEASOR")and RELEASOR's Counsel.

I. Representations and WarrantiesRELEASOR, RELEASOR's Counsel and RELEASEES agree that allrepresentations and warranties made herein shall survive settlement.

A. Medicare Secondary Payer.RELEASOR acknowledges and agrees that the parties hereto have takenreasonable steps from the beginning of this action to comply with the requirementsof 42 U.S.C. 1395y(b) and the rules and regulations promulgated thereunder(hereinafter collectively "MSP").

B. [Insert the Name of Plaintiff or Injured Person/Loss of Consortium Claimant("LOC'') if applicable] is/are or was/were Medicare eligible; and

C.

1. RELEASOR is aware of Medicare's interest in this settlement to theextent Medicare has made any conditional payments for medical servicesor items received by [Insert the N arne of Plaintiff or Injured Person!LOC(i f applicable)], pursuant to MSP, and related to the accident, injury, orillness giving rise to this settlement, and/or arising from or related to thematters forming the basis of the claims by RELEASOR;

2. RELEASOR has provided, through RELEASOR's counsel, the requisiteinformation to RELEASEES and their counsel necessary to comply withthe mandatory reporting obligations ofMSP.

RELEASOR's Responsibility for Reimbursement of Medicare's ConditionalPayments:

{JAW022J.I} On or Post-12-5-80 Exposure 1


13/25

1. RELEASOR and/or RELEASOR's counsel has notified Medicare and/orits contractor (hereinafter inclusively "Medicare") of the accident, injury,or illness giving rise to this settlement.2. RELEASOR, within a time frame specified by Medicare, shall

compromise, satisfY or obtain a waiver for any conditional payments, ifany, related to the accident, injury, or illness giving rise to this settlement,and/or arising from or related to the matters forming the basis of the claimsasserted by RELEASOR.3. RELEASOR acknowledges and agrees, in exchange for RELEASEE'ssettlement funds that it is RELEASOR'S responsibility, not theresponsibility of RELEASEES or their counsel to reimburse Medicare forany conditional payments made by Medicare on behalf of [Insert the Name

of Plaintiff or Injured Person] if applicable.4. RELEASOR's Counsel shall hold the Settlement Funds, less procurementcosts, in an escrow account or client trust account without distributing toRELEASOR until the claims by Medicare, if any, arising from or related tothe matters forming the basis of RELEASOR's claims has been satisfied,waived, or that its case is closed, as demonstrated by written documentationfrom Medicare or, as agreed upon by the parties, its authorized entity.5. Prior to distributing any of the Settlement Funds to RELEASOR or anyother person or entity, RELEASOR's Counsel will provide toRELEASEES' Counsel written documentation from Medicare or, as agreed

upon by the parties, its authorized entity proving waiver, case closure, orsatisfaction and release of any claim by Medicare arising from or related toprior conditional payments, if any, made in connection with the mattersforming the basis of RELEASOR's claims.

II. IndemnificationIn addition to and without limiting any other language in the Release andAgreement, RELEASOR agrees to indemnifY and hold harmless RELEASEES from anyand all claims by Medicare that have been or may in the future be related to, arise out of

or are in connection with MSP for any breach or failure of the RELEASOR orRELEASOR'S Counsel to comply with the representations and warranties in this Releaseand Medicare Addendum.

Notwithstanding any other provision of the Release to the contrary, RELEASORshall not be obligated to indemnifY RELEASEES in relation to any fmes or penaltieswhich result from the actions of RELEASEES or their attorneys and not from the actions{JAW0221-l} On or Post-12-5-80 Exposure 2


14/25

or ormsstons of RELEASOR or RELEASOR's Counsel tor failure to comply withMMSEA Section Ill .

III. Reliance on Representations and WarrantiesIn agreeing to the Release, RELEASEES and their counsel are relying on therepresentations and warranties of RELEASOR and RELEASOR's Counsel regarding[Insert the Name ofPlaintiff or Injured Person/LOC (ifapplicable)]'s Medicare status andthe actions RELEASOR and RELEASOR's Counsel have represented they have takenand/or will take to satisfy any and all claims by Medicare and interests pertaining to thematters forming the basis of RELEASOR's claims.In the event that the above representations are not correct or the above actions arenot performed, nothing contained in this release shall be construed to limit the rights ofRELEASEES to pursue all available remedies at law or in equity for breach of the

Release.RELEASOR has reviewed this release with advice of counsel and executes it ashis/her own free act and deed and signed under the pains and penalties of petjury.

Executed in_______________ his__ day o f 2 0 ~ .

RELEASOR

LOC RELEASOR

WITNESS

{JAW02211} On or Post-12-5-80 Exposure 3


15/25

[NAME(S)], et al * IN THEPlaintiffs * [COURT]

v. * FOR[NAME(S)], et al * [LOCATION]

*

Defendants * CASE NO.* * * * * * * * * * *

AFFIDAVIT OF PLAINTIFF(S)

1. I(We), [ PLAINTIFF(S) ], am over the age of eighteen (18) and am competent tobe a witness in this matter. I have personal knowledge of the facts set forthherein.

2. I(We) understand that in reaching a settlement, the parties have consideredMedicare's interest in recovering conditional payments made for medicaltreatment rendered as a result of the claim that is the subject of my( our) abovecaptioned lawsuit

3. I(We) have provided my(our) Social Security Number. I understand that ifl(We)am( are) a Medicare beneficiary(ies) and I(We) do not provide the requestedinformation, including a Health Insurance Claim Number, I(We) may be violatingobligations as a beneficiary to assist Medicare in coordinating benefits to paymy(our) claim(s) correctly and promptly.

4. I(We) hereby make the following representations and warranties:(a) I(We) have not applied for Medicare benefits.(b) Medicare has made no conditional payments for any medicalexpense or prescription expense related to the claimed injury.(c) I(We) am(are) not, nor have I( we) ever been Medicarebeneficiaries.(d) I(We) am(are) not currently receiving Social Security Disability

Benefits.(e) I(We) have not applied for Social Security Disability Benefits.(f) I(We) have not been denied Social Security Disability Benefits.

{JA W0224-l ) 1

*


16/25

(g) I(We) have not appealed from a denial of Social SecurityDisability Benefits.(b) I(We) are not in End Stage Renal Failure.(i) I (We) have not been diagnosed with amyotrophic lateral sclerosis

(ALS), also known as Lou Gehrig's Disease.G) No liens, including but not limited to liens for medical treatmentby hospitals, physicians, or medical providers of any kind, havebeen filed for the treatment of injuries sustained in the Accident.

5. I(We) assume all responsibility for all liens related to the treatment of the claimedinjury, including those asserted by Medicare or any other entity pursuant to theMedicare, Medicaid and SCHIP Extension Act and/or the Medicare SecondaryPayer Act.

I(We) solemnly affirm under the penalties of perjury and upon personalknowledge that the contents of this affidavit are true.

Date [ PLAINTIFF ]

Sworn and subscribed before me this day of , 2011- - - - - - - - - - - - - - - - - - -Notary PublicMy Commission expires: __________

2196!90_5

{JAW0224-I}2


17/25

DRAFTPage 1 of2

The Centers for Medicare & Medicaid SeNices (CMS) is the federal agency that oversees the Medicareprogram. Many Medicare beneficiaries have otner insurance in addition to their Medicare benefits. Sometimes,Medicare is supposed to pay after the other insurance. However, if certain other insurance delays payment,Medicare may make a "conditional payment" so as not to inconvenience the beneficiary, and recover after theother insurance pays. Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA), a new federal lawthat became effective January 1, 2009, requires that liability insurers (including self-insurers), no-fault insurers,and workers' compensation plans report specific information about Medicare beneficiartes who have otherinsurance coverage. This reporting is to assist CMS and other insurance plans to properly coordinate paymentof benefits among plans so that your claims are paid promptly and correctly.We are asking you to the answer the questions below so that we mav comply with this law.

Please review this picture of theMedicare card to determine if youhave, or have ever had, a similarMedicare card.

Section Itx:t t..OI ~ " " l i J t:'i.-,I.JM!; I ' Q I ~ lt,L'fUI/U!'tW

U ~ D l C : J I J l E ~ E N E f i T S lOHIIS :.1.) A C . o t l t : ~

Are you presently, or have you ever been, enrolled in Medicare Part A or Part B? I oYesIf ves, please complete the followinq. If no, proceed to Section II.FUll Name: (Please print the name exaCt/ as# a p ~ Iars on vour SSN or Medicare carrJ ifavailable.!II II J I I I I I I I II J J II I'

I oNo

1 Medicare Claim Number: II : 11 I I Date of Birth I I -! (Mo/Da /Year.

!Social Security Number: =I I " I I Sex oFemale oMaleI Uf Medicare Claim Number is Unavailable) -Section III understand that the information requested is to assist the requesting insurance arrangement to accuratelycoordinate benefits with Medicare and to meet its mandatcry reporting obligations under Medicare law.

Claimant Name (Please Print) ----,-----------Claim Number

Name of Person Completing This Form If Claimant is Unable (Please Print)

Signature of Person Completing This Form DateIfyou have completed Sections I and If above, stop !Jere. Ifyou are refusing to provide the informationrequested in Sections I and II, proceed to Section Ill.


18/25

Page2of2Section Ill

Claimant Name (Please Print) Claim NumberFor the reason(s) listed below, I have not provided the information requested. I understand that if I am aMedicare beneficiary and Ido not provide the requested information, Imay be violating obligations as abeneficiary to assist Medicare in coordinating benefits to pay my claims correctly and promptly.Reason(sl for Refusal to Provide Requested Information:

Signature of Person Completing This Form Date


19/25

Medicare Confidential Reporting Information*Pursuant to Section 111 of the Medicare, Medicaid and SCHIP Extension Action of 2007 (Rev 10-11)

Name: I Case Number: 117. State of Venue:(USPS Abbreviation)nt Name:the injured party presently or has he/she ever qualified for or been enrolled in Medicare Part A, B, Cor D?

Yo. r NoALLEGED INJURED PARTY INFORMATION {If a party is DECEASED, also complete Sectwn D. if l!vtng, prov1de address tSect/On G)Medicare Claim Number:

as HICN)Social Security Number: J. Injured Party Last Nameo

{Please print name as it appears on Social Security card.)Injured Party First Name: 18. Injured Party Middle Nameo

print name exactly as it appears on Social Security card.) (Please print name exactly as it appears on Social Security card.)10. Date of Birth: Deceased? Date of Death: (MM/DD/YYYY)o

Male r Female (MM/DD/YYYY) rYes r NoALLEGED INCIDENT INFORMATION

CMS Date of Incident: Please state the date of the accident or date of first exposure, ingestion, or implantation with respect to settling defendant's productIndustry Date of Incident: Please state the date of accident or date of last exposure, ingestion, or implantation with respect to settling defendant's

Cause of Injury, Illness or I codes only- no "v" codes):ICD-9 Diagnosis Code 1 (no decimal):

Diagnosis

. Claimant Representative Type (please check one):r A=Attomey r P=Power of Attorney

. Claimant Representative Lastif Firm Entity; SSN. if

r G=Guardian/Conservator r 0'-'0ther86. Claimant Representative FirstName:

87. Claimant Representative Firm Name:89-90. Representative Mail ing Address:

93-94. Zip Code +4: 96. Ext. (if any):

{80069444-1


20/25

Medicare Confidential Reporting Information*Pursuant to Section 111 of the Medicare, Medicaid and SCHIP Extension Action of 2007 {Rev 10-11)

Section I LOSS OF CONSORTIUM PLAINTIFF INFORMATION-LOC THIS SECTION MUST BE COMPLETED ONLY IF THE NON-EXPOSED PLAINTIFF(S) ALLEGES LOSS OF CONSORTIUM,

MEDICARE ELIGIBLE AND EFFECTIVELY RELEASES MEDICAL CARE/TREATMENTPROVIDE ESTATE INFORMATION IN SECTION D

4-LOC. Medicare Claim Number:(also known as HlCN)5-LOC. Social Securi ty Number: 6-LOC. Last Name:

{Please print name exactly as it appears on Social Security card.)7-LOC. First Name: 8-LOC. Middle Name:(Please print name exactly as it appears on Social Security card.} {Please print name/initial exactly as it appears on Social Security card.)9-LOC Gender: 10-LOC. Date of Birth: Deceased? Date of Death: (MM/DD/YYYY):r Male r Female (MM/DD/YYYY) rYes r No15-LOC. Alleged Cause of Injury, Illness or Incident ("e" codes only- no "v" codes):{Use "NOINJ" code if LOC claimant did not have treatment nor submit medical expense to Medicare, if NOINJ is used here, it must be used in Field 19-LOC)19-LOC. ICD-9 Diagnosis:

(Use "NOINJ" code if LOC claimant did not have treatment nor submit medical expense to Medicare, if NOINJ is used here, it must be used in Field 15-LOC)

of Attorney representing Plaintiff/Ciaimant(s) Date Printed Namethe attorney hereto constitutes a certificate by him/her that he/she has read the information supplied in this form and that aU information stated here

well grounded in fact to the best of his/her knowledge, informati on and belief formed after reasonably inquiry.*Numbers reflect claim input file field numbers, as se t forth in Version 3.2 of the Official NGHP User Guide by CMS

{80069444-


21/25

Medicare Confidential Reporting Information*Pursuant to Section 111 of the Medicare, Medicaid and SCHIP Extension Action of 2007 (Rev 10-11)

Name: Case Number:

F CLAIMANT'S (found in Section D) ATTORNEY OR OTHER REPRESENTATIVE INFORMATIONClaimant Representative Type (please check one):r P=Powt:r of Attorney r G=Guardian!Conservator 0-0ther

if Firm Entity; SSN. if121. Claimant Representative First 122. Claimant Representative Firm Name:Name:- 124. Representative Mailing Address:128. Zip Code +4: 129. Phone: 130. Ext. (i f any):

ALLEGED INJURED PARTY'S ADDRESSMailing Address:

Zip Code +4: Phone: Ext. (i f any):

D cont . ADDITIONAL CLAIMANT INFORMATION (Use only if Alleged Injured Party 1n Section A IS deceased}Relation to Alleged Injured Party (please check onel:

E=Estate (Individual) r X ~ E s t a t e (Entity) r F=Family (Individual) r F"'Family (Entity) r O=Other (Individual) r Z=Other (Entity)if individuals): I Claimant Last Name:I Claimant Middle Initial:

ng Address: I State: I Zip Code +4: I Phone: I Ext. (i f any):Representative Type (please check one):r A=Attorney r P ~ P o w c r of Attorney r G=Guardian!Conservator _C_o=OI.her

t Representat ive Last Name: I Claimant Representative First I ClaimantName:

Representative Firm Name:IN/EIN, if Firm Entity; SSN. if Individual: IRepresentative Mailing Address:I tate: I ip Code +4: IPhone: l Ext. (i f any):

Bcont. Additional ICD-9 fields, if necessary33.1CD-9 Diagnosis 35 ICD-9 Diagnosis 37.1CD-9 Diagnosis 39. ICD-9 Diagnosis

Code 7: Code 8: Code 9: Code 10: Code 11:43.1CD-9 Diagnosis 45.1CD-9 Diagnosis 47.1CD-9 Diagnosis 49. ICD-9 Diagnosis

Code 12: Code13: Code 14: Code 15: Code 16:I 53. ICD-9 Diagnosis I 55. ICD-9 DiagnosisCode 17: Code 18: Code 19:

l f . ~ c l c j i t i o n a l Section D C l a i l l l . e m s e x i s ~ a g e 3 a n d . c l . u p J i ~ ~ t e page, i f necessary.

{80069444-1


22/25

Medicare Confidential Reporting Information*Pursuant to Section Medicaid and SCHIP Extension Action of 2007

State: Zip Code +4: Phone: Ext. (i f any):(please check one):r A=Attomey r P=Power of Attorney r G=Guardian/Conservator r O=Other

Claimant Representative Claimant Representative Firm Name:IN/EIN, if Firm Entity; SSN. if

First Name:Representative Mailing Address:

Zip Code +4:

State: Zip Code +4: Phone:Representative Type (please check one):r A=Attomey r P=Power of Attorney r G=Guardian/Conservator

Ext. (i f any):

Z=Other (Entity)

Ext. (i f any):

Claimant RepresentativeFirst Name:

Claimant Representative Firm Name:IN/EIN, if Firm Entity; SSN. if Representative Mailing Address:

Zip Code +4:

State: Zip Code +4: Phone:(please check one):r A=/\ttomcy r P=Power of Attorney r G=Guardian!Conservator r O=Other

Z=Other (Entity)

Ext. (i f any):

Representative Last Claimant RepresentativeFirst Name:

Claimant Representative Firm Name:TIN/EIN, if Firm Entity; SSN. if Representative Mailing Address::ity: Zip Code +4: Phone: Ext. (i f any):

{80069444-1


23/25

12

DATE OF INCIDENT

15 ALLEGED CUASE OF INJURY,ILLNESS OR INCIDENT

19-55

84

Medicare Confidential Reporting Information*I Action of

ON or

Foran

{80069444-1


24/25

Medicare Confidential Reporting Information*ursuan JcaJ X "110 MAILING ADDRESS Provide mail iMaddress for c l a i m ~ n t . P t to Section 111 of the Medicare Med d and SCHIP E tension Action of 2007 (R 10 11)

112 CITY Provide mailing address city of the claimant.113 STATE Provide mailing address state of the claimant.114 ZIP CODE +4 Provide mailing address zip code for the claimant. Include Zip +4 code if available.116 PHONE Provide telephone number of the claimant117 PHONE EXTENSION, IF ANY Provide telephone extension of claimant, if extension is available.119 CLAIMANT REPRESENTATIVE Indicate the type of representative the claimant has by selecting from the option types provided:

TYPE A= Attorney G =Guardian/Conservator P =Power of Attorney 0 =Other Blank= Not applicable (rest of the section will beignored

120 CLAIMANT REPRESENTATIVE Provide the last name of the Claimant's Representative.LAST NAME

121 CLAIMANT REPRESENTATIVE Provide the first name of the Claimant's Representative.FIRST NAME

122 CLAIMANT REPRESENTATIVE Provide the Name of the Claimant's Representative's Firm or Entity.FIRM NAME

123 TIN/EIN, IF FIRM/ENTITY; Claimant's Representative's Federal Tax Identification Number {TIN). If representative is part of a firm, supply the firm'sSOCIALSECURITY NUMBER, IF Employer Identification Number (EIN), othe rwise supply the representative's Social Security Number (SSN).INDIVIDUAL

124 CLAIMANT REPRESENTATIVE Provide mailing address fo r the claimant's representative.MAILING ADDRESS

126 CLAIMANT REPRESENTATIVE Provide mailing address city fo r the claimant's representative.CITY

127 CLAIMANT REPRESENTATIVE Provide mailing address state fo r the claimant's representative.STATE

128 CLAIMANT REPRESENTATIVE Provide mailing address zip code fo r the claimant's representative.ZIP CODE +4

130 CLAIMANT REPRESENTATIVE Provide telephone extension of claimant's representative, if extension is available.PHONE

131 CLAIMANT REPRESENTATIVE Provide telephone extension of claimant's representative, if extension is available.PHONE EXTENSION, IF ANY

{80069444-1


25/25

Section XIII ESTABLISHMENT OF TRIAL MONTHS AND TRIAL LISTSC. Pre-Trial Preparation Schedule and Deadlines

7. Further Pre-Trial Preparation Scheduleo) Bankruptcy Trust Claims Discovery.

1) Limitations and Effect.In recognition of the confidentiality provisions of the various bankruptcy trusts and trustdistribution procedures, and in recognition of the existence of differing standards of proof in

bankruptcy claims versus civil litigation, the information produced pursuant to this provisionmay be used only for purposes related to the litigation of cases under the Massachusetts AsbestosLitigation docket, and shall not be disclosed or used for any other purpose without Order of theCourt, which should not be granted absent extraordinary circumstances. Unauthorized disclosureof this information shall be subject to sanctions. Further, admissibility and weight of anydocument or information produced hereto shall be determined on a case-by-case basis, and shallnot be introduced at trial except as specifically directed by the Court.

2) Procedure.a) Plaintiffs will produce, within 90 days of the trial date, the productexposure section of bankruptcy claim forms that have been filed onbehalfof the plaintiff. Plaintiffs have a continuing duty to supplementthis information through trial. The amount received will be redactedfrom the documents provided to defendants;b) Any payment made to a plaintiff by an asbestos bankruptcy trust actsas a dollar-for-dollar set-off of any damages awarded to a plaintiff in atort trial in those cases in which MA law is applied;c) Upon payment of a verdict in favor of a plaintiff, Plaintiff(s) willassign to defendant all asbestos bankruptcy trust claims to which aplaintiff is entitled. Plaintiff agrees to cooperate in good faith with adefendant(s) against whom a verdict is rendered in determining andfiling any asbestos bankruptcy trust claims to which a plaintiff isentitled to compensation;d) Notwithstanding the foregoing, nothing in this Pre-Trial Order shallpreclude any party from seeking the disclosure, after jury empanelment,of the amounts Plaintiff has received in connection with the bankruptcyclaims;e) No later than thirty days before the trial date, Plaintiff will serve acertification in Court that all known bankruptcy claims have been filed.

mass. proposed addendums

Documents