The District of Massachusetts dismissed an action under the False Claims Act brought by Dr. Kenneth James Jones, the “relator,” against Brigham and Women’s Hospital, Massachusetts General Hospital, and a couple of scientists, alleging that they submitted a grant application containing allegedly false statements to the National Institute on Aging, an organization under the National Institutes of Health, requesting funding for research relating to Alzheimer’s Disease. See United States ex rel. Jones v. Brigham & Women’s Hospital, Civil Action No. 07-11481-WGY, 2010 WL 4502079 (D. Mass. Nov. 10, 2010). The court rejected the relator’s theories under factual falsity, legal falsity under an express certification theory, and legal falsity under an implied certification theory.
Under the first theory – factual falsity – the court held that there was no evidence of any factually false statements in the Defendants’ grant application. Notably, the court held that because there was a scientific dispute over the accuracy of “subjective measurements,” the relator did not have a claim that one set of data was “factually false” because another set of data was allegedly “more accurate.”
The second theory, legal falsity under an express certification theory, arises when the party submits a claim that explicitly, but falsely, certifies compliance with a precondition of payment. The allegedly false certification was Defendants’ certification in its grant application that they would “comply with Public Health Service terms and conditions if a grant is awarded.” The relator argued that this express certification incorporated certain regulations concerning the responsibilities of applicants for funding. The court rejected this argument for two reasons. First, the obligation to comply with “Public Health Service terms and conditions” did not arise until after the applicant received funding; however, all of the alleged non-compliant conduct occurred prior to funding. Second, the certification was “too vague” and “overly broad.” The court held:
Where an express certification claim relies on failure to comply with a statute, regulation, or some other process, the certification language must explicitly require compliance with that specific statute, regulation, or process.
Finally, the court denied the third theory – legal falsity under an implied certification theory. The court held that a claim can be legally false under an implied certification theory “when a claimant makes no express statement about compliance with a statute or regulation, but by submitting a claim for payment implies that it has complied with any preconditions to payment.” In support of this theory, the relator relied on allegations that would effectively amend his complaint almost four years after the original complaint. The court held that this would be unfairly prejudicial, and in any event, there was insufficient evidence to support the theory.