In United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., 2014 U.S. Dist. LEXIS 142660 (E.D. Tenn. Sept. 29, 2014)., a federal district court agreed with the United States Government that statistical evidence could be used to prove the nature and extent of the harm in the False Claims Act matter. It seems that the defense bar is up in arms about this logical application of already existing precedent. That is, economists and statisticians, have long been permitted to testify in a wide range of cases that lend themselves to statistical analysis: class actions, employment discrimination, wrongful death actions, actuarial disputes, and wage and income projections, to name a few. Just like other experts, they are required to explain their opinions and the basis for them, and face cross-examination. Moreover, in most of these cases, the jury and the court hear testimony from competing experts and then use their common sense to make a judgment about the relative strengths of the testimony. There is no reason why experts called in an FCA case should be treated any differently. As another court stated in a subsequent decision interpreting Life Care, there is “no universal ban on expert testimony based on statistical sampling applies in a qui tam action (or elsewhere), and [that] no expert testimony is excludable in this action for that sole reason[.]” See, United States ex rel. Ruckh v. Genoa Healthcare, LLC, No. 11-cv-01303 (M.D. Fla. Apr. 28, 2015).
