Earlier this month, Judge Karen Bowdre ordered a new trial in the United States v. AseraCare Inc., No. 2:12-CV-245-KOB (N.D. Ala. Nov. 3, 2015). Judge Bowdre’s decision to do so sua sponte marks yet another unusual turn of events in this qui tam action in which the government intervened, which is the largest brought against hospice care providers thus far. Our colleagues Robert Rhoad, John Brennan, and Jason Crawford recount all of the twists and turns of this case in their piece on the Whistleblower Watch blog.
AseraCare was already famous because (1) the judge allowed the government to use of statistical sampling to establish falsity for FCA liability and for potential damages and (2) the trial proceedings had been bifurcated to force the government to bring separate cases to address the elements of falsity and scienter under the FCA. Judge Bowdre’s recent order may indicate that the second trial phase will never occur, especially since she found that her own jury instructions did not “accurately reflect the law” with respect to how falsity may be proven under the FCA. The Whistleblower Watch post provides additional details about the important implications of this case on the use of statistical sampling as well as the potential for future bifurcations of FCA proceedings.