The False Claims Act contains numerous requirements that are designed to prevent meritless cases from proceeding to discovery and trial. Among these provisions is the rule that, to establish liability, the government or a relator must show that an actual claim was submitted to federal Medicare or state Medicaid for reimbursement. In some Circuits, such as the Eleventh, the government or a relator must identify claims at the pleading stage. Failure to do so will result in dismissal.
But what about cases in which tens of thousands of claims have been submitted? Should the government or a relator be required to identify the falsity of each and every claim to survive a dismissal? In cases such as these in which large volumes of false claims were allegedly submitted, False Claims Act plaintiffs have increasingly argued, sometimes successfully, in the affirmative—i.e., statistical sampling is a valid methodology for establishing liability. See, e.g., United States v. Life Care Centers of America, Inc., 114 F. Supp. 3d 549, 565-570 (E.D. Tenn. 2014) (rejecting defendant’s argument that statistical sampling cannot be used to establish liability); United States v. Robinson, 2015 WL 1479396, at *10 (E.D. Ky. Mar. 31, 2015) (admitting sampling evidence and collecting cases supporting the finding that “statistical sampling methods and extrapolation have been accepted in the Sixth Circuit and in other jurisdictions as reliable and acceptable evidence in determining facts related to [False Claims Act] claims as well as other adjudicative facts” (citing cases)). Plaintiffs, having...
