Evidence and Proof in Qui Tam Cases

May 15, 2015 — When we discuss cases with individuals who are seeking counsel, they often have witnessed purposeful and illegal billing to a government agency, but often the evidence is unavailable to the individual, or the individual has few documents and proof compared to the documentation in the fraudster’s possession. This article aims to respond to a common question raised by potential clients: What if I do not have all of the proof in my possession? Can I still pursue a qui tam lawsuit? The short answer is likely yes.

By way of background, it is important to note that although there are many types of whistleblowers as that term is used in the media, in the qui tam context, it refers to an individual prepared to fight for justice within specific types of litigation. Generally, we represent individuals that have relevant and detailed information about a scheme or tactics used to purposefully and fraudulently engage in illegal conduct against the government. Among the more commonly recognized frauds include the following examples:

• Billing for products or services not provided to the government
• Billing for defective, sub-par, or mislabeled products or services, or otherwise different from the products or services agreed upon in the government contract
• Billing for over-payments and failing to report over-payments by the government
• Acquiring government funds using fraudulent means
• Using kickbacks to promote medical drugs or devices to health care professionals in violation of the Anti-Kickback Statute
• Selling or marketing off-label drugs (meaning outside of FDA approved uses)

Again, this list merely provides examples since those who intend to defraud the government are often creative with the means used to obtain undue government funds.

With that said, these examples demonstrate the variety of evidence and proof that a whistleblower may use to bring a case: documents that help prove payments by the government that amount to false claims. The actual evidence and proof necessary is dependent upon the industry and the type of fraud that the whistleblower intends to reveal. These documents can be voluminous, but if some representative documents are presented with her case, this helps pique the government’s interest and assists in understanding the fraudulent scheme. Understandably, many companies have policies that prevent employees from taking home documents, and in the age of electronic data, many companies no longer have paper files. But generally, if the whistleblower recalls where the data, documents, and evidence are stored, to the extent that her recollection is accurate, a detailed description of where documents or the data are located may be sufficient. The bottom line is that if the whistleblower has witnessed illegal conduct and she is able to amply describe the conduct in detail, even without proof in her possession, she may still pursue a qui tam lawsuit.

********************
Louisa Kirakosian is an attorney at Waters, Kraus & Paul, in the firm’s Los Angeles office. She represents whistleblowers who have uncovered fraud against the government in the pharmaceutical, Medicare/Medicaid, and government contracting industries.