The allegations focused on fraud and false claims in a grant application submitted by a team of scientists from Harvard. These academics were alleged to have falsified research data in order to receive a $15 million grant from NIH so that they could further their scientific research — and if that sounds familiar to any of my Virginia readers I think you’ll know why. Although the opinion concerns false claims made as part of an academic grant request, it should be read by every lawyer thinking of bringing any kind of qui tam case. Why do I say that? As regular readers are aware, one of the on-going themes here at vaquitamlaw.com is the complexity of false claims act practice — these cases are nearly always factually complicated and the body of case law is correspondingly complex. The factual allegations in Brighan and Women’s Hospital involved fraud in a grant proposal to conduct research on Alzheimer’s Disease using NIH funds. Relator Kenneth Jones was the lead statistician on a team of scientists at Harvard University that had conducted alzheimer’s research for more than 20 years. A few choice words from the First Circuit Court of Appeals says it better than I could: So yes,Virginia, a difference of scientific opinion cannot be made into a false claims act case. In fact I’ll go one step further and say that a difference of scientific opinion isn’t even relevant to a Virginia Fraud Against Taxpayers Act case, with just one exception — if it negates scienter on the part of the defendant. 
New First Circuit Opinion Holds Important Lessons for Lawyers Interested in Bringing Qui Tam Cases…
An important new opinion was published this week by the U.S. Court of Appeals for the First Circuit — the caption is US ex rel. Jones v. Brigham and Women’s Hospital, et al., 2012 WL 1571232 (2nd. Cir. May 7, 2012).
This theme has been discussed for example in my post on FCA violations arising out of unclaimed property law, as well as posts discussing the factual allegations that a complaint needs to survive a motion to dismiss under Fed. R. Civ. P. 9(b).
Now that SCOVA dismissed Cuccinelli’s civil investigative demand to UVa, I have already heard people saying “You can’t bring a VFATA case if the false claims are predicated on a difference of scientific opinion.”
That argument is false and this week’s opinion from the First Circuit proves it.
At some point along the way Jones discovered that another scientist on the team had falsified his data — and had then used that false data to apply for a five year grant totalling nearly $15 million.
“We agree with the district court that “[e]xpressions of opinion, scientific judgments, or statements as to conclusions about which reasonable minds may differ cannot be false. … The dispute at the heart of this case is not about resolving which scientific protocol produces results that fall within an acceptable range of ‘accuracy.’ Nor is it about whether … the basis for the preliminary scientific conclusions reported in the Application, are “accurate” … Rather, the essential dispute is about whether Killiany falsified scientific data by intentionally exaggerating the re-measurements of the EC to cause proof of a particular scientific hypothesis to emerge from the data, and whether statements made in the Application about having used blinded, reliable methods to produce those results were true.
Like the federal FCA the VFATA focuses on the knowledge of the defendant and on the defendant’s efforts to deceive. So it is no defense to say that there is a difference of scientific opinion about whether part of a grant application is false if a defendant can be shown to have made a “knowingly false” claim or have made a claim with “reckless indifference” to the truth or falsity of the claim.