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

This CLE course will guide counsel 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.

2023 was the 15th consecutive year in which the government recovered more than $2 billion through FCA settlements and judgments. The government's focus on FCA enforcement in the healthcare context remains steadfast, as healthcare cases made up over two-thirds of FCA recoveries in 2023. For example, in July an EHR vendor settled FCA and AKS charges for $31 million. The agreement resolved allegations that the vendor misrepresented its software's capabilities and falsely obtained HHS certification under an incentive program.

The use of statistical sampling and extrapolation evidence to demonstrate proof of liability in FCA cases is an important and timely 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 prove or disprove 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 to determine liability and damages.