In its partial motion for summary judgment, the government laid out the four essential elements for proving the defendant's were liable to the government under the Medicare Secondary Payer Act. The elements are:
1. Assertion and release of medical claims by Medicare beneficiaries in the underlying action.
2. Prove that Medicare made conditional payments related to claims asserted and released in the underlying action.
3. Prove that the defendants are responsible "primary plans" under the MSP statute.
4. Demonstrate that a "primary plan" made payment.
The motion for summary judgment excluded certain defendants and plaintiff counsel due to ongoing discovery. However, the government asserted as to "Monsanto", "Solutia", "Pharmacia" and "Abernathy" plaintiff counsel group that the four elements had been met and summary judgment on liability was appropriate.