Because of MMSEA and possible amendments, it is wise to include language in releases and settlement agreements that require plaintiffs to affirm that no exposure occurred on or after Dec. 5, 1980, as well as some indemnity language.  While indemnity language is often resisted, in this circumstance it is particularly proper and should be included with minimal resistance, since this language merely restates plaintiff’s obligation to pay Medicare any reimbursement that would be required.  The following language is an example:

Plaintiff affirms that on or subsequent to Dec. 5, 1980, neither he/she nor Plaintiff’s decedent was exposed to any asbestos-containing product manufactured by Defendant and that no such claim was part of this lawsuit.  In the event Medicare seeks any reimbursement from Defendant, Defendant’s insurance carriers, and/or Defendant’s legal counsel for benefits provided to Plaintiff, Plaintiff hereby agrees to indemnify and hold harmless Defendant, Defendant’s insurance carriers, and/or Defendant’s legal counsel for any payments, costs, fees or penalties incurred relating to any such Medicare claim.