A question that I have been asked is whether a qui tam action can proceed if a whistleblower (known as the “relator”) dies. The answer is YES.
Generally, a regular civil case will have to be dismissed if the plaintiff dies because he or she is the only party that has an interest in the outcome of the case and has the ability to sue. This is legally referred to as “standing.” This is not so in a federal whistleblower case. The case can survive, even if the relator dies.
The specific facts of each case ultimately determine whether a case is likely to survive the whistleblower’s death. The following scenarios illustrate some of these issues:
John works for a government defense contractor that builds replacement parts for military vehicles used overseas. Although all of the parts are required to be tested, only about 1 of every 100 parts is actually tested. John is responsible for testing at the plant and knows that most of the parts that are tested fail, but the contractor still sold the parts to the government. John has complained to his boss, who says there is no safety risk to the soldiers because the worst that can happen is that the vehicle will just stop.
John has all of the test records for the parts that failed on his office computer. He has notified the government that the documents are stored there, but he has not yet given the documents to the government. John filed a lawsuit, but is killed in a plane crash before he gets the documents from his office computer.
In Example One, the government may still be able to access the records from John’s computer. Without John to interpret them and testify about what actually occurred, however, the case will be far more difficult to prove. If John was the person responsible for completing the documents and they could not be verified without him, although the law would allow the case to proceed, the government may not believe it can prove its case without him. In this situation, the estate would probably not litigate the case alone.
Mary is a nurse at a hospital where they have a rule that every emergency room patient on Medicare must be held for “observation” for 48 hours. The intake personnel place a unique code on every Medicare patient’s admission records (“MPH”), which is a signal to the nurses that the patient must be admitted and held for 2 days.
Mary has complained to her supervisors but nothing is done. Mary notifies the government about the scheme and provides the FBI with several patient charts with the MPH notification (although she blacks out the names of the patients). Mary files a whistleblower complaint and attaches these documents to her “disclosure memorandum,” but gets pneumonia and dies before she can meet with the government attorneys.
In Example Two, since Mary has filed a qui tam action and has given the government important evidence about the illegal scheme – which will likely lead investigators to more proof of the false claims filed by the hospital – the government will likely elect to continue the case. If Mary gave the evidence to a government investigator as a “good citizen” but without legally filing a False Claims Act case, even if the government investigates the case and recovers millions of dollars from the hospital, Mary’s estate would not receive a reward.
Echoing other court decisions, a recent case decided in the District of Columbia concluded that a qui tam (False Claim Act) case could continue after the death of a relator. The court reminded us that the False Claim Act’s “chief purpose … is to prevent the commission of fraud against the federal government and to provide for the restitution of money that was taken from the federal government by fraudulent means.”
Fortunately, this issue does not come up often, but it is worth knowing that some courts have held that the family of a deceased whistleblower may recover the whistleblower’s reward. (U.S. v. NEC Corp., 11 F.3d 136 (11th Cir. 1993); (U.S., ex rel. Hood v. Satory Global, Inc., 2013 WL 2274798, *9+ (D.D.C. May 23, 2013)). This is not to say that it will be an easy road; the successful litigation of a qui tam action is never easy, and the death of the relator makes it much more difficult.
Many courts have little or no experience with a relator dying in a False Claims Act case, and the government will want to be convinced that it can prove the case without the whistleblower. An experienced qui tam attorney can help the estate of the deceased navigate through these complex legal and evidentiary issues. If you know that a loved one or relative was a whistleblower and filed a lawsuit, try to contact their lawyer as soon as possible after his or her death. If you cannot find the lawyer or lawsuit, the Estate should hire an experienced Qui Tam lawyer to represent the estate and protect the interests of the whistleblower’s heirs.