Can Whistleblower Be the Expert?

Whistleblower actions, likewise referred to as qui tam suits, are a unique type of litigation, with various procedural actions and obstacles that are special to this kind of action.

When we found out about the SEC granting $4 million to a whistleblower for exposing securities misbehavior within the firm, we needed to question how when doing professional witnesses enter play in a qui tam action and who would make the very best specialist. As the most experienced person on the topic, the most likely response to that concern is the irs whistleblower awards himself. Can the whistleblower be the specialist?

” Not just did this whistleblower advance and report suspicious conduct, but continued to help after we opened our examination,” stated Jane Norberg, chief of the SEC’s Office of the Whistleblower, in a declaration about the current SEC qui tam action. Normally, the whistleblower, as the main supporter and begetter of the case, stays extremely included once an examination is started and the misbehavior revealed. Typically, the whistleblower in a qui tam action is somebody with industry-specific understanding and high-end proficiency on the conduct included and his help throughout the advancement of the case is not just useful, but regularly, important. As Norberg discussed,” [w] whistleblowers with specialized experience or knowledge can help us use up fewer resources in our examinations and bring enforcement actions more effectively.” That does make our blasting referee the “professional” on the matter, does it not? But, let’s speak about the advantages and disadvantages of permitting the whistleblower to act as the professional witness in a qui tam action.

You most likely had one instant con entered your mind – predisposition. That’s real with any complainant who takes the stand to inform his side of the story though. The single person who stands to get the most from a decision in the complainant’s favor is the complainant. He has an integrated reward to slash off a couple of rough edges and shine a lovelier light on his variation of the reality so it looks more attractive to the jury. It’s difficult to think anybody informing their side of anything can refrain from doing this, at least to some degree. It’s humanity. But, this is when the complainant is simply affirming as a reality witness. The jury needs the realities, even rose-colored ones, to make a choice. Exactly what about the complainant acting not as the purveyor of exactly what took place but, rather the teacher on how the jury is expected to process it? Exists still a worry for predisposition when the complainant is serving as the specialist, in a qui tam action, describing the misbehavior to the jury? For instance– in a medical False Claims Act qui tam action– envision the whistleblower takes the stand to teach the jury what “up-coding” is, i.e., where doctor designates easy treatments with an ICD-9 code for a more complex, more costly treatment to be paid a greater quantity by the federal government. Does this make the predisposition even worse because the complainant is not merely communicating realities, now teaching the jury what those realities indicate about exactly what is best and exactly what is incorrect? Likely, but we want to hear your ideas. Should the whistleblower be the professional witness? Should he even take the stand at all?

Exactly what if the misbehavior at issue does not need a skilled statement? It is frequently the case in qui tam actions that the real conduct forming the basis of liability is easy and does not need skilled statement for the jury to understand it. For instance, coding a laparoscopic medical treatment as an intrusive one to get more money is not something that needs clinical testament. Usually, because qui tam actions normally include hundreds, if not thousands, of incorrect claims to the federal government for settlement, typically the area where the professional statement is required is not the misbehavior itself, but, rather, ways to compute the damages. Where the incorrect claims are too prevalent to rebuild, an analytical specialist might be generated to affirm regarding the damages based upon a projection of audited claims. See United States Ex. Rel. Loughren v. Unum Provident Corp., 604 F.Supp.2 d 258 (D. Mass. 2009); United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., 2014 U.S. Dist. LEXIS 142660 (E.D. Tenn. Sept. 29, 2014). Remarkably, in the Life Care case, the incorrect claims were so widespread and differed, the court enabled the complainant to use analytical projection to show not just damages, but a liability.

While it is most likely the whistleblower because the action was an active player in the medical market, it is not likely he was a statistician. Often the person most educated about the misbehavior are not the very best person to show it. This is where professional witnesses can be found in.