The U.S. District Court for the Middle District of Florida issued yet another opinion endorsing the use of statistical sampling in FCA cases. In its April 28, 2015 opinion in United States ex rel. Ruckh v. Genoa Healthcare, LLC., the district court held that the relator could use expert testimony of statistical sampling to establish FCA violations concerning claims submitted by defendants' skilled nursing facilities.
The relator alleged that the defendants violated the FCA by falsifying reports summarizing patients’ medical conditions and the treatment provided to those patients. Relator further alleged fraud by the defendants who allegedly allowed unauthorized individuals to submit reports to CMS. After the defendants’ motions to dismiss the complaint were denied, the relator moved to admit expert testimony on statistical sampling due to the "voluminous discovery" and the impossibility of "producing and processing the relevant medical records at the fifty-three medical facilities and some fifty-three off-site storage locations within a reasonable time." DOJ, which did not intervene in the case, filed a statement of interest in support of statistical sampling.
Relying on U.S. ex rel. Martin v. Life Care Centers of America, Inc., and United States v. Robinson, the district court noted that statistical sampling is not only a reliable method, but is warranted in large-scale qui tam cases where "it would be impracticable for the Court to review each claim individually." Accordingly, the Court clarified that there is "no universal ban on expert testimony based on statistical sampling . . . in a qui tam action."
The district court's opinion is noteworthy for two reasons. First, the district court considered the issue of statistical sampling in response to the relator's motion in limine and over the defendants’ argument that the relator was seeking an advisory opinion on the use of statistical sampling. Second, this appears to be the first FCA action in which a district court has endorsed the use of statistical sampling by a relator, whereas previous cases considering the issue were in cases in which DOJ had intervened.
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