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| COURT OF COMMON PLEAS
BUTLER COUNTY, OHIO
JOE C. SMITH, JR. and : Case No. CV 2008 04 1994
ANNETTE SMITH, :
Plaintiffs,.20;, 2.7.>
¥ MAY 0 i
° 2008 ANSWER AND COUNTERCLAIM
DAVID LEE FOSTER, et al., ta OF THE UNITED STATES OF
AMERICA
Defendants.
Now comes the United States of America, acting on behalf of the Secretary of the
Department of Health and Human Services, by and through its counsel, Gregory G. Lockhart, the
United States Attorney for the Southern District of Ohio, and Assistant United States Attorney,
Donetta D. Wiethe, and for its Answer and Counterclaim to the Complaint states as follows:
FIRST DEFENSE
The Complaint fails to state a claim upon which relief can be granted against the United
States of America.
SECOND DEFENSE
The Court lacks jurisdiction over the subject matter of this action as it relates to the
United States, because it is in effect a suit against the United States to which it has not consented.
THIRD DEFENSE
Plaintiff's claims are barred by the doctrine of sovereign immunity.FOURTH DEFENSE
The United States of America answers the numbered paragraphs of the Complaint as
follows:
1.-4. The United States is without knowledge or information sufficient to form a belief as
to the truth of the averments of these paragraphs and therefore denies same.
5. The United States' answers to paragraphs 1-4 of the Complaint are hereby adopted by
reference as though they were fully set forth herein,
6.-8. The United States is without knowledge or information sufficient to form a belief as
to the truth of the averments of these paragraphs and therefore denies same.
9. The United States' answers to paragraphs 1-6 of the Complaint are hereby adopted by
reference as though they were fully set forth herein.
10.-12. Upon information and belief, the United States, acting through the Secretary of
the Department of Health and Human Services, admits that it has made or will make conditional
Payments under the Medicare program on behalf of the plaintiff, Annette Smith, the exact
amounts being unknown at this time. The United States is entitled to full reimbursement of these
conditional payments to the extent they are related to the injuries sustained in the incident that is
the subject of this action. The United States specifically states that its interest in this matter is
not limited to subrogation rights or by Ohio law and refers the Court to the applicable Medicare
statutes and regulations.
13. The United States' answers to paragraphs 1-12 of the Complaint are hereby adopted
by reference as though they were fully set forth herein.14.-18. The United States is without knowledge or information sufficient to form a belief
as to the truth of the averments of these paragraphs and therefore denies same.
The United States specifically denies all of the allegations of the Complaint not otherwise
answered.
WHEREFORE, the United States of America demands that the Plaintiff, Annette Smith,
be required to reimburse the United States of America for all amounts received under an
automobile or liability insurance policy or plan or under no-fault insurance for medical expenses
for which payment has been made by Medicare, including all amounts paid by the defendants to
the said plaintiffs as a result of the incident and injuries described in the Complaint.
Furthermore, the United States of America declares that it is not liable either for a damage award
or for an award of costs or attorneys fees or both.
COUNTERCLAIM
As and for a Counterclaim against the Plaintiff, Annette Smith, the United States of
America alleges as follows:
1. The United States of America administers the Medicare Program (42 U.S.C. § 1395, et
seq.), pursuant to which payments are made to eligible beneficiaries and providers of medical
services for covered services rendered to Medicare beneficiaries,
2. Upon information and belief, certain sums, the exact amounts of which are not
presently known to the United States of America, have been (and may be in the future be)
expended through the Medicare Program for the payment of medical and hospital expenses
incurred by Plaintiff, Annette Smith, as a result of the injuries sustained in the incident that is the
subject of this action.3. Under 42 U.S.C. § 1395y(b)(2), the Plaintiff, Annette Smith, is required to reimburse
the United States of America such amounts as may be recovered in this lawsuit under an
automobile or liability insurance policy or plan or under no-fault insurance for medical and
hospital expenses necessitated by injuries arising out of the incident that is the subject matter of
this action, and for which payment has been made under the Medicare Program; and the United
States of America has an independent right of action for such reimbursement under the statute, as
well as a subrogation interest in the proceeds of any policy or plan of insurance covering the
medical expenses paid by Medicare.
WHEREFORE, the United States of America demands that the Plaintiff, Annette Smith,
be required to reimburse the United States of America for all amounts received under an
automobile or liability insurance policy or plan or under no-fault insurance for medical expenses
for which payment has been made by Medicare, including all amounts paid by the defendants to
the said Plaintiff as a result of the incident and injuries described in the Complaint. Furthermore,
the United States of America declares that it is not liable either for a damage award or for an
award of costs or attorneys fees or both. The United States of America prays that it be awarded a
judgment for medical expenses conditionally paid on behalf of the Plaintiff, Annette Smith, and
necessitated by the injuries that are the subject of this action, said sums being unknown at this
time, and that the Court grant such other and further relief to the United States as may be
appropriate.Respectfully submitted,
GREGORY G. LOCKHART
United States Attorney
DONETTA D. WIETHE (0028212)
Assistant U.S. Attorney
221 East Fourth Street, Suite 400
Cincinnati, Ohio 45202
(513)684-371 1/fax (513)684-6972
Email: Donetta. Wiethe@usdoj.gov
CERTIFICATE OF SERVICE
Thereby certify that copies of the foregoing Answer and Counterclaim of United States of
America were mailed on May 7, 2008 to:
Gayle P. Vojtush, Esq.
1014 Vine Street, Ste. 2200
Cincinnati, Ohio 45202
David Lee Foster
891 Fiesta Court
Carlisle, Ohio 45005
State Farm Insurance Companies
CSC-Lawyers Incorporating Services
16 E. Broad Street
Columbus, Ohio 43215
Dn
DONETTA D. WIETHE
Assistant U.S. Attorney
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| COURT OF COMMON PLEAS BUTLER COUNTY, OHIO JOE C. SMITH, JR. and : Case No. CV 2008 04 1994 ANNETTE SMITH, : Plaintiffs,.20;, 2.7.> ¥ MAY 0 i ° 2008 ANSWER AND COUNTERCLAIM DAVID LEE FOSTER, et al., ta OF THE UNITED STATES OF AMERICA Defendants. Now comes the United States of America, acting on behalf of the Secretary of the Department of Health and Human Services, by and through its counsel, Gregory G. Lockhart, the United States Attorney for the Southern District of Ohio, and Assistant United States Attorney, Donetta D. Wiethe, and for its Answer and Counterclaim to the Complaint states as follows: FIRST DEFENSE The Complaint fails to state a claim upon which relief can be granted against the United States of America. SECOND DEFENSE The Court lacks jurisdiction over the subject matter of this action as it relates to the United States, because it is in effect a suit against the United States to which it has not consented. THIRD DEFENSE Plaintiff's claims are barred by the doctrine of sovereign immunity.FOURTH DEFENSE The United States of America answers the numbered paragraphs of the Complaint as follows: 1.-4. The United States is without knowledge or information sufficient to form a belief as to the truth of the averments of these paragraphs and therefore denies same. 5. The United States' answers to paragraphs 1-4 of the Complaint are hereby adopted by reference as though they were fully set forth herein, 6.-8. The United States is without knowledge or information sufficient to form a belief as to the truth of the averments of these paragraphs and therefore denies same. 9. The United States' answers to paragraphs 1-6 of the Complaint are hereby adopted by reference as though they were fully set forth herein. 10.-12. Upon information and belief, the United States, acting through the Secretary of the Department of Health and Human Services, admits that it has made or will make conditional Payments under the Medicare program on behalf of the plaintiff, Annette Smith, the exact amounts being unknown at this time. The United States is entitled to full reimbursement of these conditional payments to the extent they are related to the injuries sustained in the incident that is the subject of this action. The United States specifically states that its interest in this matter is not limited to subrogation rights or by Ohio law and refers the Court to the applicable Medicare statutes and regulations. 13. The United States' answers to paragraphs 1-12 of the Complaint are hereby adopted by reference as though they were fully set forth herein.14.-18. The United States is without knowledge or information sufficient to form a belief as to the truth of the averments of these paragraphs and therefore denies same. The United States specifically denies all of the allegations of the Complaint not otherwise answered. WHEREFORE, the United States of America demands that the Plaintiff, Annette Smith, be required to reimburse the United States of America for all amounts received under an automobile or liability insurance policy or plan or under no-fault insurance for medical expenses for which payment has been made by Medicare, including all amounts paid by the defendants to the said plaintiffs as a result of the incident and injuries described in the Complaint. Furthermore, the United States of America declares that it is not liable either for a damage award or for an award of costs or attorneys fees or both. COUNTERCLAIM As and for a Counterclaim against the Plaintiff, Annette Smith, the United States of America alleges as follows: 1. The United States of America administers the Medicare Program (42 U.S.C. § 1395, et seq.), pursuant to which payments are made to eligible beneficiaries and providers of medical services for covered services rendered to Medicare beneficiaries, 2. Upon information and belief, certain sums, the exact amounts of which are not presently known to the United States of America, have been (and may be in the future be) expended through the Medicare Program for the payment of medical and hospital expenses incurred by Plaintiff, Annette Smith, as a result of the injuries sustained in the incident that is the subject of this action.3. Under 42 U.S.C. § 1395y(b)(2), the Plaintiff, Annette Smith, is required to reimburse the United States of America such amounts as may be recovered in this lawsuit under an automobile or liability insurance policy or plan or under no-fault insurance for medical and hospital expenses necessitated by injuries arising out of the incident that is the subject matter of this action, and for which payment has been made under the Medicare Program; and the United States of America has an independent right of action for such reimbursement under the statute, as well as a subrogation interest in the proceeds of any policy or plan of insurance covering the medical expenses paid by Medicare. WHEREFORE, the United States of America demands that the Plaintiff, Annette Smith, be required to reimburse the United States of America for all amounts received under an automobile or liability insurance policy or plan or under no-fault insurance for medical expenses for which payment has been made by Medicare, including all amounts paid by the defendants to the said Plaintiff as a result of the incident and injuries described in the Complaint. Furthermore, the United States of America declares that it is not liable either for a damage award or for an award of costs or attorneys fees or both. The United States of America prays that it be awarded a judgment for medical expenses conditionally paid on behalf of the Plaintiff, Annette Smith, and necessitated by the injuries that are the subject of this action, said sums being unknown at this time, and that the Court grant such other and further relief to the United States as may be appropriate.Respectfully submitted, GREGORY G. LOCKHART United States Attorney DONETTA D. WIETHE (0028212) Assistant U.S. Attorney 221 East Fourth Street, Suite 400 Cincinnati, Ohio 45202 (513)684-371 1/fax (513)684-6972 Email: Donetta. Wiethe@usdoj.gov CERTIFICATE OF SERVICE Thereby certify that copies of the foregoing Answer and Counterclaim of United States of America were mailed on May 7, 2008 to: Gayle P. Vojtush, Esq. 1014 Vine Street, Ste. 2200 Cincinnati, Ohio 45202 David Lee Foster 891 Fiesta Court Carlisle, Ohio 45005 State Farm Insurance Companies CSC-Lawyers Incorporating Services 16 E. Broad Street Columbus, Ohio 43215 Dn DONETTA D. WIETHE Assistant U.S. Attorney