“Falsity” is the hallmark of any False Claims Act (FCA) case. The government and FCA whistleblowers routinely bring FCA cases predicated upon underlying violations of the Anti-Kickback Statute, based on the theory that a kickback “taints” all claims and renders them all false. The “tainted claim” theory of FCA liability has proven attractive to the government and whistleblowers because it purportedly does not require proof of falsity on a claim by claim basis. A recent Eighth Circuit decision may upend all that and provide some protection to FCA defendants in cases based on Anti-Kickback Statute violations.

In U.S. ex rel. Cairns v. D.S. Medical LLC, the Eighth Circuit reversed an FCA trial verdict against a neurosurgeon and a medical device distributor based on underlying Anti-Kickback Statute violations.¹ The court focused on well-established 2010 amendments to the Anti-Kickback Statute that added a method to establish a false or fraudulent claim: “a claim that includes items or services resulting from a violation of this section [of the Anti-Kickback Statute] constitutes a false or fraudulent claim for purposes of [the FCA].”² Congress’s 2010 amendment led to more questions about the requisite level of causation the government or whistleblower must prove to show that an item or service is “resulting from” an Anti-Kickback Statute violation. In Cairns, the Eighth Circuit held that the phrase “resulting from” requires but-for causation.³

In Cairns, the trial court...

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