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PALMER v. STERLING DRUGS

May 5, 1972

Edward J. PALMER
v.
STERLING DRUGS, INC., Winthrop Laboratories Division


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the Court is the defendant's motion to strike and/or dismiss certain allegations in the plaintiff's Complaint.

 The Complaint was filed in this matter against defendant, Sterling Drugs, Inc., seeking recovery for personal injuries sustained as a direct result of the negligence of the defendant in manufacturing, advertising, selling, labelling, packaging, and distributing a certain drug named "Talwin", and as a result of defendant's breach of its express warranty of fitness and implied warranty of merchantability with regard to said drug. In addition to allegations of pain and suffering, loss of income and earning capacity, and proximately caused personal injuries, is the following allegation which forms the basis of defendant's Motion to Strike And/Or Dismiss a Portion of the Pleading:

 
". . . As a further result of said injuries the plaintiff has received and in the future will continue to receive medical and hospital care and treatment furnished by the United States of America. The plaintiff for the sole use and benefit of the United States of America under the provisions of 42 United States Code 2651-2653, and with its expressed consent, asserts a claim for the reasonable value of said past and future care and treatment."

 The incorporation of this allegation within the Complaint arises from an authorization contained within a letter from the Veterans' Administration Center, addressed to counsel for plaintiff, requesting that this allegation be included within the Complaint pursuant to the Federal Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653.

 The principal section of the statute is § 2651. Subsection (a) creates a "right" in the United States "to recover" from the tortfeasor the value of medical care it has furnished the injured person and provides that the government shall be subrogated to any claim of the injured person against the tortfeasor to the extent of the value of the care and treatment it has furnished. Subsection (b) prescribes the procedure for enforcement of the government's right of recovery. Since the issue presented in this case involves the construction of these provisions, we must set them out in full:

 
"§ 2651. Recovery by United States -- Conditions; exceptions; persons liable; amount of recovery; subrogation; assignment
 
Enforcement procedure; intervention; joinder of parties; State or Federal court proceedings
 
(b) The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone (in its own name or in the name of the injured person, his guardian, personal representative, estate, dependents, or survivors) or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors."

 The defendant contends that the statute creates a right of recovery which may be pursued by the United States in only two ways. The United States may (1) intervene or join in any action or proceeding brought by the injured person against the tortfeasor, or (2) if such action is not commenced within six months after the first day the care and treatment were furnished, it may institute its own legal proceeding against the tortfeasor.

 Simply stated, defendant seeks to strictly construe the Act as affording only two avenues of recovery for the United States Government. A reading of the Act however demonstrates that this intended construction is in opposition to the permissive language of the statute. § 2651(b), Enforcement Procedure, states that the United States may, to enforce such right . . . intervene or join in an action, or institute legal proceedings against the third person. (Emphasis supplied.) This language is not mandatory upon the United States, but merely directory and permissive. See United States v. Wittrock, 268 F. Supp. 325 (E.D. Pa. 1967); United States v. Merrigan, 389 F.2d 21 (3d Cir. 1968); United States v. Housing Authority of City of Bremerton, 415 F.2d 239 (9th Cir. 1969).

 The defendant claims that the plaintiff seeks to assert a claim for the government which, under the provisions of the Act, "does not reside in any private party." The defendant then claims that the right "exists solely as a claim by the government to be pursued by adhering to either of the two methods of enforcement. This exact point was raised in Conley v. Maattala, 303 F. Supp. 484 (D.C.N.H. 1969) wherein the Court was confronted with the plaintiff alleging, as here, an injury sustained as a result of the negligence of a third party tortfeasor. There, as here, the plaintiff sought recovery of "the reasonable value of medical care and treatment furnished and to be furnished [the plaintiff] by the United States . . ., for the sole use and benefit of the United States in accordance with . . . 42 U.S.C. §§ 2651-2652 . . ., with the consent of the United States." Id. at 485. (Emphasis supplied). This must be compared with plaintiff's allegation within paragraph 8 of its Complaint, the pertinent part of which states that: ...


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