A Tale of Two Falsities: Objective Falsity and Common-Law Falsity in the False Claims Act

Abstract

On February 22, 2021, the Supreme Court of the United States issued an order list denying certiorari in two cases below seeking to define truth. There exists within the False Claims Act (“FCA”) context a question of whether the statutory element of “falsity” in making out an FCA claim extends to medical “opinions.” Some courts have adopted the objective-falsity standard, which posits that only hard indicia, such as empirical data, are subject to falsifiability. Other courts have adopted legal, or common-law, falsity which includes objective falsity but adds liability for misrepresented legal compliance. Unsurprisingly, this is a niche issue with virtually no scholastic development. The manuscript makes the following findings: (1) the common law clearly supports that medical opinions are subject to falsifiability on broader grounds than objective falsity posits; (2) medical “opinions” are actually more characteristic of statements of fact; (3) comparative litigation in other realms of medicine routinely invite the falsifiability of medical opinions by factfinders; and (4) that advocates’ concerns of legal falsity increasing liability under the FCA thus amounting to nonstop bet-the-business litigation are unfounded. The Supreme Court must eventually provide guidance, and given the high stakes of FCA litigation, the few parties who do go to trial are heavily incentivized to appeal ad infinitum. This area of law is scholastically anemic, and this manuscript seeks to end that by walking through the required path of the law for judges, practitioners, and would-be defendants to ensure greater congruence between conduct and the rule of law.