Torts – False Claims Act

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Where plaintiffs in a qui tam action failed to come forth with evidence that forms contained false certification or evidence of precisely how many of the forms contained false certifications, the verdicts in favor of the plaintiffs must be vacated.

“At best, a reasonable jury might be able to say that some of Momence’s claims were false. But that is not enough to satisfy the relators’ burden of proof. Of course, the relators’ difficulty in coming forward with evidence supporting even an approximate finding regarding how many of Momence’s claims were false may be partly attributed to Momence’s wrongdoing. But, under the FCA, the plaintiff must “prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.” 31 U.S.C. § 3731.16 A defendant’s wrongdoing does not shift the burden of proof to the defendant under the FCA. Crews, 460 F.3d at 857; see also Bigelow, 327 U.S. at 264.”

“In conclusion, the relators’ false certification theory fails as a matter of law either based on the lack of evidence at trial or on waived theories of materiality (that is, whether the certification is a condition of payment). Because, as explained above, the relators’ ‘worthless services’ theory also fails as a matter of law, the relators’ cross-appeal regarding the district court’s set-aside of the $19 million in fines necessarily fails.”

Vacated and Remanded.

13-1886 & 13-1936 U.S. ex rel. Absher v. Momence Meadows Nursing Center, Inc.

Appeals from the United States District Court for the Central District of Illinois, Baker, J., Manion, J.

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