A federal trial court in Florida has ruled that qui tam or whistleblower plaintiffs can use statistical sampling to prove fraud in a False Claims Act lawsuit. The court explained: “[N]o universal ban on expert testimony based on statistical sampling applies in a qui tam action (or elsewhere), and no expert testimony is excludable in this action for that sole reason.…” The whistleblower in this case had brought claims against entities that operated facilities at which she had worked, claiming they defrauded the U.S. and Florida governments by upcoding or upcharging for services rendered in 53 medical facilities. Arguing that it was too difficult to provide individual analysis of claims from 53 facilities, the plaintiff asked the court to admit expert testimony about statistical sampling she planned to provide. The sampling had not yet been performed but the plaintiff wanted to determine if the court would accept such evidence to prove falsity of claims. History of the case. The defendants had previously succeeded in getting the claims dismissed because the alleged fraud wasn’t stated with sufficient particularity. Federal Rules of Civil Procedure require that fraud allegations be stated with particularity – that is, with specific detail. The plaintiff had claimed…
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