In prior years, sampling has been at issue in FCA cases largely
in the context of damages. Specifically, where there were
allegations of a specific course of wrongful conduct that allegedly
impacted large volumes of claims, sampling could be used to
determine and extrapolate damages. However, a couple of recent
decisions have suggested an expanded use of sampling that would
also encompass issues of liability.
On September 29, 2014, a federal judge in the United States
District Court for the Eastern District of Tennessee ruled that the
Government could take extrapolations from a sample of billing
statements in order to determine and establish liability against
the defendants for submitting false claims. The case of U.S. ex rel. Martin v. Life Care
Centers, presented an issue of first impression in the FCA
context. Life Care Centers was accused of billing for medical care
that was not necessary over a period of several years. The
Government sought to use a random sample
