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On September 29, 2015, the Fourth Circuit agreed to hear an interlocutory appeal in U.S. ex rel. Michaels et al. v. Agape Senior Community, Inc. to address whether the statistical method of extrapolation may be used to prove liability, in addition to damages, under the False Claims Act. The Fourth Circuit will be the first appellate court to rule on this controversial issue.
Extrapolation, or statistical sampling, is a method in which a sample of data is used to draw inferences about a larger population. Litigators implement extrapolation in areas of complex litigation, including antitrust, employment discrimination, mass torts, and voting rights cases. In the FCA context, however, litigators have utilized extrapolation solely to prove damages. The use of extrapolation expanded in 2014, when the U.S. District Court for the Eastern District of Tennessee, in U.S. ex rel. Martin v. Life Care Centers, allowed plaintiffs to use statistical sampling not only to calculate damages, but also to establish the underlying FCA liability. Subsequent rulings by federal district courts reach divergent positions.
In “Extrapolation in FCA Litigation: A Statistical Anomaly or a Tactic Here to Stay?”, a Feature Comment published by The Government Contractor, C&M Attorneys outline the origins of extrapolation, examine the divergent federal district court rulings on whether it may be used to prove damages, explain the significance of extrapolation to contractors facing False Claims Act liability, and offer practice tips for litigating cases with statistical sampling.

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Photo of Jason Crawford Jason Crawford

When facing government investigations or high stakes litigation, clients trust Jason Crawford to evaluate allegations, identify risks, and formulate strategies to achieve the appropriate resolution. Jason advises and advocates for government contractors and companies from regulated industries in matters involving civil, criminal, and…

When facing government investigations or high stakes litigation, clients trust Jason Crawford to evaluate allegations, identify risks, and formulate strategies to achieve the appropriate resolution. Jason advises and advocates for government contractors and companies from regulated industries in matters involving civil, criminal, and administrative enforcement, with a particular focus on the False Claims Act (FCA).

As a litigator, Jason has defended government contractors, drug manufacturers, grant recipients, health care companies, importers, and construction companies sued under the FCA by whistleblowers and the Department of Justice (DOJ) in federal courts throughout the country. He also helps clients conduct complex internal investigations and respond strategically to Office of Inspectors General inquiries, grand jury investigations, search warrants, and civil investigative demands.

Jason previously served as a DOJ Trial Attorney in the Civil Division, Fraud Section where he investigated and litigated FCA cases involving government contractors, importers, and health care companies. He also previously worked with the U.S. Attorney’s Office for the District of Columbia where he prosecuted federal criminal cases.

A recognized thought leader on FCA developments, Jason has written and presented extensively on the fraud statute, and he is a co-host of the Let’s Talk FCA podcast.