The firm uses the United States False Claims Act to recover research grant funding that our investigative targets have misdirected through false and fraudulent scientific claims. The FCA authorizes whistleblowers of any citizenship to sue to recover funding for a defrauded U.S. government agency or department. These complaints are originally filed confidentially, but may later become public. A whistleblower can qualify for a share in the eventual recovery of up to 30% of the returned funds. The promise of such recoveries enables law firms like this one to advance the cost of our whistleblower representation and advice so that whistleblowers pay nothing unless and until their case progresses to a financial recovery.
The U.S. Congress passed the FCA initially to address the problem of military contractors selling the army defective products, such as guns that did not shoot or boots made of cardboard. Today, many U.S. government agencies are doing equally important work based on the integrity of the products, services and research they pay for. While some contractors cheat the government by billing for no work at all, it is more common to appear to be fulfilling obligations while taking unlawful shortcuts. Examples include mental health services provided by unlicensed therapists, drugs prescribed by bribed doctors, medical procedures that are unnecessary or unsafe, and technologies that do not work as advertised.
In science, funding agencies sometimes award grants, or continue to pay out on grants, based on misrepresentations of the science or of other circumstances to the scientific research. Payments after the date of the misrepresentation or the generation of recklessly prepared grant products can amount to fraud on the government. One important focus at my firm is to use the False Claims Act to “follow the money” associated with fraud in the scientific or medical literature that misleads federal agencies into awarding grants or other benefits for work that they might not otherwise choose to fund.
Do I have a case?
The False Claims Act requires us to show that the defendant made a claim for payment to the government, that was false, and recklesss.
To be false, a misrepresentation need not be an out-and-out lie or fabrication. In June 2016, the U.S. Supreme Court unanimously concluded that misleading half-truths can count as actionable false claims in United States ex rel. Escobar v. Universal Health Services, Inc.. This case defines the contours of civil fraud in the United States today. In a scientific fraud case, falsified data includes the presentation of data acquired in circumstances different to those described, the presentation of results omitting nonconfirmatory data, or the presentation of results that that the authors have good reason to know might have been a fluke or an artifact. Other grant fraud cases involve misrepresentations by PIs or institutions about their track records, methods, materials or equipment.
Reckless means that the defendant knowingly ignored a substantial risk of error. In scientific fraud cases, we look for evidence that the defendants have misrepresented necessary cross-checks, such as a control experiments or a replication data. Additionally, we look for whether the defendant has misrepresented data or other circumstances of their experiments multiple times, or over several years. Or, that they have done so in a high-profile article or when applying for a large grant. In practice, I rarely file cases unless the whistleblower(s) and I believe that at least some examples of misrepresentation have to be intentional or knowing. If the evidence for deception turns out to be weaker than we thought, or is strongly disputed, we may still be able to show the misrepresentation was at-least reckless.
Presentment of the false information to government to induce funding is also a necessary component of a case. Without access to a grant application, we can still sometimes draw reliable inferences that a grant PI almost surely relied on an article, presentation or press releases to influence the government.
The above examples are only a guide. We are often able to satisfy the above elements of the FCA using evidence other than these examples, or identify investigative approaches that lead to such evidence after discussions. Conversely, the law has technicalities that may bar a case that is intuitively as deserving as another one that turns out to be viable. If you think you have a case, it’s a good idea to reach out to me or another law firm before going public, or, if you have made some public disclosures already, to get in touch prior to publicizing further evidence.