                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0682n.06

                                        No. 16-6353

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                        FILED
UNITED STATES OF AMERICA,                             )            Dec 11, 2017
                                                      )        DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                            )
                                                      )
                                                            ON APPEAL FROM THE
              v.                                      )
                                                            UNITED STATES DISTRICT
                                                      )
                                                            COURT FOR THE EASTERN
DR. PHILIP ROBINSON,                                  )
                                                            DISTRICT OF KENTUCKY
                                                      )
       Defendant-Appellant.                           )
                                                      )



BEFORE: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.

       GRIFFIN, Circuit Judge.

       In this False Claims Act case, the jury returned a verdict in the government’s favor.

Defendant moved for a new trial. The district court denied his motion, and he now challenges

that denial. We affirm.

                                             I.

       From January 1, 2007, to January 31, 2012, Dr. Philip Robinson submitted more than

25,000 claims to Medicare seeking reimbursement for optometry services he provided to nursing

home patients. Medicare reimbursed more than $1.4 million for those claims. The government

then sued Robinson under the False Claims Act, alleging that many of the claims were for

medically unnecessary services.
No. 16-6353
United States v. Robinson


       At trial, the government relied on statistical sampling and extrapolation to establish

liability and to prove damages. A statistical expert testified that she used computer software to

select a random 30-claim sample representative of the larger universe. A medical expert then

identified 25 of those 30 claims as medically unnecessary. And the statistical expert testified that

she could estimate the government’s damages by multiplying the average overpayment on each

sample claim by the total claims. Because this method produced estimates, the statistical expert

testified that she could conclude with a 90% degree of confidence (rather than with certainty)

that the government’s damages were between $974,000 and $1.1 million.

       The jury ultimately concluded that Robinson had submitted 11,085 false claims and

awarded the government $419,075.81 in damages.

       Robinson moved for a new trial, challenging the jury’s damages award. Specifically, he

argued that for the jury to conclude he submitted 11,085 false claims, it must have found that

only 13 of the 30 sample claims were false. With fewer than 25 false claims in the sample, he

contended, the average overpayment would have differed significantly from the figure the

statistical expert used to estimate damages. He emphasized that the government had provided

the average amount it thought Medicare had overpaid on each sample claim, but never gave the

jury the individual reimbursement amounts.        Thus, Robinson asserted, the jury lacked the

numbers it needed to duplicate the government’s damages calculation in accordance with its own

conclusion that fewer than 25 of the sample claims were false.

       The district court denied the motion. It noted that the jury had been instructed—without

objection from Robinson—that damages need not be proven with mathematical certainty, but

could be based on evidence supporting a reasonable estimate of loss. And it observed that

Robinson failed to rebut the government’s expert testimony on damages and presented no

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No. 16-6353
United States v. Robinson


damages evidence of his own.        The district court concluded that the jury determined the

percentage of false claims in the universe—43%—and awarded the government that proportion

of the damages it sought: an approach the district court deemed reasonably supported by the

evidence.

       Robinson now appeals, arguing the district court erred in denying his new trial motion.

                                                II.

       Robinson argues the district court erred for two reasons. He contends that calculating

damages through statistical sampling and extrapolation is improper in FCA cases. And he claims

that the jury’s damages calculation was unreasonable. We review a district court’s denial of a

new trial motion for an abuse of discretion, and reverse only if we have “a definite and firm

conviction that the trial court committed a clear error of judgment.” Armisted v. State Farm Mut.

Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012).

       As a preliminary matter, we will not consider Robinson’s first argument because he raises

it for the first time on appeal. We “review the case presented to the district court,” not “a better

case fashioned after a district court’s unfavorable order.” Barney v. PNC Bank, 714 F.3d 920,

925 (6th Cir. 2013). Robinson raised a similar argument in his summary judgment motion, in

which he challenged the use of statistical sampling and extrapolation to establish FCA liability.

But in his new trial motion, he never challenged the validity of using statistical sampling and

extrapolation to calculate FCA damages. Instead, he argued only that “the jury did not know

how to calculate a finding for damages from the evidence and produced a damage finding not

based upon any testimony in the record.”

       Turning to Robinson’s second argument, our “review of a jury’s damage award is

extremely deferential”; we will not order a new trial “unless the award is contrary to all reason.”

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No. 16-6353
United States v. Robinson


Advance Sign Group, LLC v. Optec Displays, Inc., 722 F.3d 778, 787 (6th Cir. 2013). Here,

Robinson has not shown that the award was unreasonable. He simply reasserts the argument he

made to the district court: he walks through the statistical expert’s calculation, alleges the

government never provided the jury with the individual reimbursement amounts, and contends

the jury therefore lacked the numbers needed to calculate damages in accordance with its own

conclusion that fewer than 25 of the sample claims were false.

       But Robinson is incorrect; the government provided the jury with the individual

reimbursement amounts. And, in any event, this argument sidesteps the real issue on appeal:

whether the district court abused its discretion by concluding the jury’s actual damages

calculation was reasonable. Robinson does not address the district court’s finding that “the

jury’s award of damages in this case was logically consistent with its determination of liability

and corresponded to the mathematical calculations about which evidence was presented.” And

he does not attack the jury’s actual calculation other than by stating: “the jury cannot determine

a damage finding by simply using a ratio of false sample claims over total sample claims.”

Because Robinson provides neither an explanation of his position nor any legal support for it, he

has not shown an abuse of discretion.

                                               III.

       For these reasons, we affirm the district court’s judgment.




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