Federal Bar Association

Complexities in Using Experts in Qui Tam Cases

Whistle blower or whistleblower concept as a symbol of a secret informer agent posing as an employee with his cast shadow of a whistle as a metaphor for inside infoermation on misconduct in a 3D illustration style.

Join the Federal Bar Association’s Qui Tam section as it provides new analysis on the rapidly changing landscape of False Claims Act (“FCA”) enforcement. This two-day conference in Washington, D.C. will feature experienced FCA litigators from a variety of perspectives who will dive into advanced topics and discuss the latest developments, practices, and pitfalls pertaining to the FCA. Take the opportunity February 27-28, 2018 to interact with leading practitioners while earning CLE credit and enjoying multiple networking events. Register now at http://www.fedbar.org/quitam18.

Fluency in qui tam/whistleblower law has become increasingly important in recent years due to an expansion of whistleblower reward and protection laws.  While the FCA is a powerful tool to combat fraud, it is constrained by rules of evidence and the limited resources of litigation.

Whistleblower actions a.k.a. qui tam lawsuits are complex and a unique breed of litigation, with many different procedural steps and hurdles. “Using Experts in Qui Tam Cases: When, Where, Why, How?” will be moderated by Dawn E. Stern (Associate, DLA Piper).  In qui tam actions, the most knowledgeable person on the subject matter of the lawsuit is usually the whistleblower.

How and when do expert witnesses come into play in a qui tam action? Who would make the best expert in a qui tam case? Can the whistleblower serve as an expert? How do you qualify the whistleblower as an expert? Is the whistleblower an effective communicator? How do you determine which experts are persuasive and trustworthy?

Panelists at the 2018 Qui Tam Conference will discuss best practices for pursuing or defending whistleblower cases, including such issues as using experts, navigating procedural challenges, calculating or disputing damages, and negotiating settlements.

After the qui tam complaint is filed, often the government will seek to interview the whistleblower. Then the government investigates the case by interviewing other witnesses and retaining experts for consultations on complex issues.

Typically, the whistleblower, as the primary proponent of the case, remains involved once an investigation into the misconduct is initiated and uncovered. Usually, the whistleblower in a qui tam action is someone with industry-specific knowledge and expertise on the behavior involved. His or her assistance during the development of the case is not only helpful but also critical. As such, panelists at the Qui Tam Conference will talk about the pros and cons of allowing the whistleblower to serve as the expert witness.

There are instances where the misconduct at issue doesn’t require expert testimony, as the actual conduct forming the basis of liability is straightforward and obvious. In such cases, the area where expert testimony is needed is not the misconduct itself, but rather how to calculate the damages. A statistical expert may be brought in to testify as to the amount of damages.  In instances where the false claims are so rampant, the court may allow the plaintiff to use statistical extrapolation to prove not only damages, but also liability.

Register today to take advantage of reduced registration rates for the Qui Tam Conference. Sign up at http://www.fedbar.org/quitam18.


Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.