Relators filed suit against the defendants related to an alleged violation of the False Claims Act. Relators hired an Actuary – Actuarial Expert Witness to provide testimony. Defendants filed a motion to exclude this expert from testifying. The court denied the motion to exclude.
Facts: This case (United States of America et al v. Supervalu Inc et al – United States District Court – Central District of Illinois – May 24th, 2019) involves the False Claims Act. The relators allege that the defendant pharmacies submitted false or fraudulent claims to obtain federal funds from Government Healthcare Programs (GHP). The Relators have hired Actuary – Actuarial Expert Witness John Bertko to provide expert witness to provide expert witness testimony. The defendants have filed a motion to exclude the expert witness testimony of Mr. Bertko.
Discussion: The court notes that Mr. Berkto has 40 years of experience as an actuary in the GHP industry, which includes consulting for health insurance companies, state and federal governmental units, and private employers. The defendants argue that Mr. Bertko’s report does not have any actuarial analysis and that he is not providing any actuarial opinions in this case. Thus, they argue, Mr. Bertko’s qualifications as an actuary are not relevant to his report and his opinions are not supported by his expertise. The court opines that upon considering Mr. Bertko’s extensive experience and the nature of the opinions contained in his report, the court opines that he is qualified to provide his opinions to the jury. The court further opines that Mr. Bertko’s employment at Humana includes experience which touches on the opinions which form the basis of his testimony. In addition, the court notes that Mr. Bertko has remained active in the general field. Thus, the court rules that Mr. Bertko is qualified to offer an opinion in this case.
The defendants also argue that Mr. Bertko’s opinions are not reliable as his methodology cannot be independently tested, is not supported by peer authority, is not based on any standards, and is not accepted within the relevant discipline. The court opines that it is unable to conclude that any of the defendants’ critiques warrant excluding his expert testimony based on reliability. In addition, the court opines that Mr. Bertko’s methodology is reliable to present to the jury.
The court also opines that the matters in this case are complex and not within the typical juror’s scope of knowledge. The court also opines that any arguments related to the relevance of Mr. Bertko’s opinion is best addressed at cross-examination.
Conclusion: The motion to exclude the expert opinion of John Bertko is denied.