In a case in which it chose not to intervene, DOJ has stepped in to defend the relator’s attempt to use statistical sampling to prove FCA liability.

The relators allege that a nation-wide healthcare provider violated the FCA by making medically unnecessary admissions and false diagnoses to increase reimbursements at a facility in Indiana. They proposed using statistical sampling to establish FCA liability based on evaluation of a subset of medical records from facilities throughout the country. The magistrate judge rejected the relators’ claim on the grounds that “fraud will have to be proved on a claim-by-claim basis.”

However, the DOJ has submitted a Statement of Interest arguing that the judge’s dismissal should be set aside, “because it is contrary to long-established precedent recognizing statistical sampling as an admissible and valid method of proof in complex cases involving large numbers of claims, including cases brought under the FCA.”

More at Sidley Austin