After waiting over a year to hear what the Fourth Circuit would say about statistical sampling in False Claims Act cases, the court of appeals recently chose to keep us in suspense. Despite initially granting the relators’ petition to appeal the district court’s ruling that statistical sampling was not an appropriate means of demonstrating liability, the Fourth Circuit ultimately declined to decide the issue in United States ex rel. Michaels v. Agape Senior Community Inc., because it was not a “pure question of law” and, therefore, not appropriate for interlocutory review. Thus, the Fourth Circuit dismissed the relator’s appeal regarding statistical sampling as “improvidently granted.”

Statistical sampling and extrapolation involve identifying a representative sample of claims and using that sample to draw inferences and make conclusions about the larger pool of claims. The use of statistical extrapolation is not new, and though governing statutes specifically authorize its use in certain types of cases, such as administrative agency actions, the FCA is silent with respect to the use and appropriateness of statistical sampling. This silence has left lower courts and practitioners alike with little guidance regarding the appropriate parameters of the practice in FCA cases.

Originally published in Law360 on March 22, 2017.