FCA Litigation: Leveraging Statistical Sampling and Extrapolation to Prove or Disprove Liability

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, February 1, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance on the use of statistical sampling and extrapolation in False Claims Act (FCA) litigation. The panel will examine how courts are treating the issue and offer best practices for addressing sampling issues.

Description

In fiscal year 2015, the DOJ recovered over $3.5 billion from False Claims Act (FCA) cases, a majority of which came from the healthcare industry. The government’s focus on FCA enforcement in the healthcare context remains steadfast as demonstrated by DOJ’s announcement on Oct. 24, 2016, that it reached a $145 million settlement agreement with Life Care Centers of America Inc. and its owner to resolve allegations of FCA violations for submitting false claims to Medicare and TRICARE.

The use of statistical sampling and extrapolation evidence to demonstrate proof of liability in FCA cases is an important and timely issue. For example, in the Life Care case, the district court held the government could use statistical sampling and extrapolation to prove FCA liability where over one hundred thousand individual claims were at issue.

The law on the use of sampling in FCA cases continues to evolve. Attorneys for the government, relators, and healthcare companies should consider how sampling could be used in different kinds of FCA cases, especially those involving liability and issues of medical judgment. Further, the role of experts and Daubert challenges will be important when the parties rely on sampling.

Listen as our authoritative panel of healthcare attorneys examines how statistical sampling and extrapolation are used to (dis)prove liability in FCA litigation. The panel will also examine how different courts have treated statistical sampling and extrapolation and offer best practices for leveraging sampling or combating it in the determination of liability and damages.

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Outline

  1. How statistical sampling and extrapolation are used
    1. Cases involving liability
    2. Cases involving medical judgment
    3. In off-label cases—showing falsity vs. causation
  2. Court treatment
  3. Best practices for leveraging sampling or combating it

Benefits

The panel will review these and other key issues:

  • How are the courts treating statistical sampling and extrapolation in FCA cases?
  • How can statistical sampling be used to demonstrate falsity versus using it to show causation in an off-label case?
  • What role will Daubert challenges play in FCA cases where a party seeks to offer expert testimony that relies on sampling?
  • How can parties use statistical sampling and extrapolation to prove liability?

Faculty

Matthew D. Benedetto
Matthew D. Benedetto

Counsel
Wilmer Cutler Pickering Hale and Dorr

Mr. Benedetto’s practice focuses on complex civil litigation and government investigations. He has extensive...  |  Read More

Jeanne A. Markey
Jeanne A. Markey

Partner
Cohen Milstein Sellers & Toll

Ms. Markey co-chairs the firm’s Whistleblower/False Claims Act practice. She has extensive experience in Qui...  |  Read More

Raymond M. Sarola, Esq.
Raymond M. Sarola, Esq.

Cohen Milstein Sellers & Toll

Mr. Sarola is a member of the firm’s Whistleblower/False Claims Act Practice and the firm's Ethics and...  |  Read More

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