Federal courts across the country are grappling with litigants’ use of statistics to prove their False Claims Act (FCA) cases. The FCA allows private whistleblowers who uncover fraud against the government to bring a lawsuit and share in any recovery. These cases can often involve countless incidents of false claims; therefore, whistleblowers and the government increasingly rely on statistics to support their cases.
Courts’ acceptance of statistics varies widely and is significantly impacted by how whistleblowers seek to utilize statistics. For example, the use of statistical sampling to calculate damages is widely accepted. United States v. Fadul, 2013 WL 781614, at *14, 2013 U.S. Dist. LEXIS 27909, at *47 (D. Md. Feb. 28, 2013). However, courts are split on whether statistics can be used to prove the actual elements of a claim. Compare United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., 114 F. Supp. 3d 549, 565–68 (E.D. Tenn. 2014), with United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 58 (1st Cir. 2017). Some courts are open to proving elements with statistics, while others only allow it if other methods of proof have been destroyed by the defendant.
Until higher federal courts definitively decide how statistics may be used in FCA cases, whistleblowers should err on the side of caution when using statistics. However, the Fourth Circuit recently suggested in dicta that it would allow the use of statistics in some instances. See United States ex rel. Michaels v. Agape Senior Community, Inc., 848 F.3d 330 (4th Cir. 2017).