The extent to which statistical sampling can be used to establish FCA liability remains a hotly disputed topic among federal courts. In a closely watched case, the Fourth Circuit last week declined to become the first circuit court directly to address the issue. See United States ex rel. Michaels v. Agape Senior Cmty., Inc., No. 15-2145 (4th Cir. Feb. 14, 2017).
The district court had held that the government could not use sampling to establish FCA liability because liability hinged on highly fact-intensive questions relating to medical necessity and the direct medical record evidence was available for review (as discussed further here). Having granted an interlocutory appeal on that issue, however, the Fourth Circuit ultimately concluded that the appeal had been improvidently granted. The court observed that district courts have significant latitude to rule on admissibility of evidence. Furthermore, the district court’s conclusion that statistical sampling can be appropriate in some circumstances, but not in this particular case, underscored that the district court’s ruling did not involve a pure question of law appropriate for interlocutory appeal, and therefore could be better addressed, if at all, following an appeal on the merits of the underlying case. Importantly, however, the Fourth Circuit’s ruling leaves intact (for now) the district court’s determination that the federal government’s use of statistical sampling to establish liability was not appropriate. A copy of the Fourth Circuit’s opinion can be found here.
Sidley Austin and the Analysis Group will be presenting a webinar on “Everything You Wanted to Know About the Use of Statistical Sampling to Establish FCA Liability (But Were Afraid to Ask)” (CLE pending). The event takes place on March 2 from 12:00-1:00 PM ET. The event will explain and attempt to de-mystify statistical sampling, provide an overview of key FCA cases involving the use of sampling, and offer practice pointers when dealing with attempts to use sampling in FCA cases. If you would like to participate, click here to RSVP.