Article Summary

Qui Tam 2019 is the second annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.

Here Scott discusses statistical sampling under the FCA with Ashley Hardin of Williams & Connolly LLP, who will moderate a panel on the topic at the conference.

This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on January 18, 2019.

Qui Tam 2019 Panel Preview: Statistic Sampling and Algorithms



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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: [Addressing camera] Hello everyone. We are here with Ashley Hardin, who is a partner at Williams and Connolly. She is going to be moderating one of our panels at this year’s Qui Tam Conference on February 28 and March 1, 2019.

Ashley, your panel is on statistical sampling.

Ashley W. Hardin: Yes!

Oswald: Tell us a little bit about what statistical sampling is — and for those who are mathematically challenged, how it applies to our cases in the False Claims Act arena.

Hardin: Sure. Well, I’m also mathematically challenged and that’s why I think this is an interesting topic. It’s a really hot topic in FCA litigation — and not just FCA litigation, but in other types of mass cases where there are lots of claims at issue, [where] there might have been lots of alleged misconduct. If you’re talking about a Medicare or Medicaid [case], you might be talking about multiple claims, sometimes thousands or millions.

Statistical sampling is a way to take a smaller subset of those claims, analyze those, present evidence to the jury of those, and then extrapolate the findings regarding those claims to the broader universe. That’s controversial, as you might imagine, depending on what side of the side of the “v” you’re on.

Oswald: I’ll bet. And so from being on the defense side of the “v,” how do you feel about statistical sampling?

Hardin: Generally, we’re quite opposed to statistical sampling on the defense side because from a False Claims Act perspective — [how] we view [it] in the defense bar — it can be a due process violation. And it’s the plaintiff’s burden — [that’s] usually the defense argument — to prove every single claim is false, to prove that there was intent to defraud with every single claim. And you can’t always take a small subset and extrapolate it.

So again, going back to the Medicare or the Medicaid example, if you’re talking about claims that [some treatment was] alleged to be medically unnecessary, you can’t take what may have been necessary or unnecessary for one patient and extrapolate it to what may have been the case for a different group of patients — especially if you’re talking about different groups of people, different groups of doctors, perhaps over different time periods, widely different time periods. So it can be a real challenge to defend against that.

Oswald: So how do courts deal with that due process conundrum? Where do the courts come out?

Hardin: Well, there has been an allowance for statistical sampling to prove damages — not in all cases, but in some. There are certainly some district courts that have allowed that.

There has been much more reluctance to allow sampling to be used to prove liability. No court of appeals has actually weighed in on that. There was a case a couple of years ago in the Fourth Circuit that I think the bar on both sides had hoped would provide some guidance. The Fourth Circuit ended up not reaching the question — and so it remains really an open issue, and there’s not a lot of guidance on either side on whether that’s allowable.

That’s really much where the debate is: Damages, it’s much more accepted that that can be allowed. Liability, that’s where the due process issues really come into play.

Oswald: So if I’m sitting in the audience and I’m getting ready to watch the panel, what can I expect? What am I going to see?

Hardin: Well, I hope that there’ll be a background about the legal landscape, talking about what cases have said. Where have courts allowed [sampling] for damages? Where have courts allowed it for liability? Where have courts not allowed it for either of those things? Sort of a background.

Also, we have a statistician or an economist on the panel [who] I hope can explain, for those of us who are mathematically challenged: What is a sample, what types of samples are there, what makes a good one?

And then, for the lawyers: How do you challenge the other side’s expert who is putting forth the sample — and what do you want to look for, and where are the weak spots, and what do you want to make sure you have in your expert? And then, perhaps, avenues for attack[ing] the other side’s experts.

Oswald: And maybe even a little bit about how to best work with experts in a case like this?

Hardin: Sure, sure. That’s great in terms of — because there’s lots of different types of samples, and having someone be able to sit down at the beginning of your case and talk to you about what might be useful. If you’re the plaintiff, what you might want to try to do, [or] if you’re the defense, what you might expect the plaintiff is trying to do, so that you can build your case really from the start — and try to build your damages case and your liability case around, you know, what the claims may be and what the defenses may be.

Oswald: Tell us a little bit about you. You’re a partner at Williams & Connolly. That takes up, I’m sure, an enormous amount of time. When you’re not lawyering, where do you spend your time?

Hardin: I spend my time mostly with my four young children, so there isn’t much room for anything other than them. I have two boys and two girls. My two boys are big athletes, and so we spend lots of our Saturdays and Sundays at various games of some sort, traveling here and there.

My daughters are four, so we are doing all kinds of fun preschool activities and they’re really developing — they’re twins and coming into their own little personalities.

So it’s busy, but lots of fun.

Oswald: Ashley, thank you.

Hardin: Thank you!

Oswald: [Addressing camera] I want to thank all of you that have signed up for the annual conference already. If you haven’t done so, you can do so at the Federal Bar Web site, which is at We look forward to seeing you in 2019 on February 28 and March 1.


R. Scott Oswald is managing principal of The Employment Law Group, P.C. Ashley W. Hardin is a partner at Williams & Connolly LLP.


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