Jury trials are required for federal false claims cases unless both the plaintiff and defendant agree to proceed without a jury. An unanswered question is whether a qui tam plaintiff, where the government has intervened, may object to an agreement between the government and the defendant to waive a jury. One exception to the right to a jury trial may exist when the original qui tam lawsuit arises as a counterclaim in the U.S. Claims Court. (See Cital Engineering vs. United States, 19 CL Ct. 774 (1990).) While most trials allow the jury in a false claims case to resolve factual disputes, such as a determination of domesticity of a defendant’s products, some do not. This was so even though there were complex issues of fact. However, as to “original source” (what the relator must be to have standing to bring the qui tam or false claim suit), it has been argued that the court should decide this factual issue since the court is essentially determining its own jurisdictional issue. (See cf, Thornill Pub Co. vs. General Telephone, 594 F2d 730 (9th Cir. 1993).) For other case examples, see our dedicated FCA Blog Page.
Once the trial is underway (assuming not decided in prior summary adjudication motions), the plaintiff must prove liability and damages. In a recent case, the relator relied on an expert’s estimates of damages based solely on the summaries provided by the relator. These had not been exchanged beforehand. If an expert does not conduct an investigation or review objective data in support of the claim, then it is likely not sufficient to support a damages claim.
A defendant may not destroy or render uncertain evidence regarding damages, and if it does, it will be liable for any resulting judgment. In a recent case involving kick-backs based on over-billing for 1,100 mobile homes, the court held that “the most elementary conceptions of justice and public policy requires that the wrongdoer shall bear the risk of the uncertainty which its own wrong has created.” (See US vs. Kilough, 152 F. Supp 84.) However, as the treble damages and penalties of the FCA are considered punitive in nature, sample methodology is generally frowned upon. This is because false claims are exactly that–false claims, and the damages must be proven by a preponderance of the evidence. Sampling has been held to be too unreliable to support a false claim. (See US ex rel Loughren vs. Unumprovident Corp, 604 F. Supp 2d 259. See also, US ex rel Barron vs. Deloitte & touche, LLP, Civ No. SA-99-CA-1093-FB) (expert report on sampled paid claims was unreliable and therefore excluded).
All Los Angeles Employment Attorneys are aware of Dukes vs. Wal Mart, 131 S. Ct 2541 (2011), which held, in an employment class action context, that statistical and anecdotal evidence of discrimination fell short of the required level of proof needed because there was no showing of a discriminatory corporate policy as the cause of the alleged discrimination, as opposed to actions by individual managers. This reasoning appears applicable to many FCA cases. See our dedicated Class Action page here.
As always, this blog provides educational materials only and legal advise may only be given by an attorney focused on false claims and familiar with your facts. As California’s leading employee-only law firm with an active FCA practice and team, we welcome your questions. Never a consultation charge, give us a call now at 877 789-9707.