Photo of Benjamin  Scher

Selected Expertise

  • Causation analysis
  • Damages estimation
  • Data analysis
  • Database development, management, and analysis
  • False Claims Act
  • Healthcare economics
  • Off-label marketing
  • Pharmaceutical economics
  • Pharmaceutical pricing and reimbursement
  • Reimbursement and claims data

Selected Industries

  • Biotechnology
  • Computer hardware and software
  • Gaming
  • Health insurance
  • Healthcare
  • Medical devices
  • Medicare and Medicaid
  • Pharmaceuticals

Benjamin Scher

Profile
News
Insight

Ben Scher is an expert in providing data-driven insights to help solve complex problems. He has extensive experience performing empirical analyses of large data sets, conducting statistical and economic analysis, and serving as lead consulting expert in government investigations and through all phases of litigation. Mr. Scher’s work has focused extensively on the healthcare and life sciences sectors. He has served as lead consulting expert for drug manufacturers, medical device manufacturers, and healthcare providers on numerous engagements—both litigation and government investigations—primarily involving alleged False Claims Act (FCA) violations. He also serves as a testifying expert for a large healthcare provider in a matter involving allegations of FCA violations. Many of the matters Mr. Scher has worked on involve hundreds of millions of dollars or more in controversy. Mr. Scher’s work in these matters involves providing insights on liability, causation, and damages based on empirical analysis of data. In addition, many of these matters have involved issues relating to the methods used to select, and extrapolate from, statistical samples. Finally, Mr. Scher has significant experience in other industries and matters, most notably a variety of antitrust disputes.

Selected Experience

  • In United States ex rel. George v. Fresenius Medical Care Holdings, Inc., served as testifying expert on behalf of Fresenius Medical Care. Analyzed several large internal databases and claims databases. Deposition taken January 2016. In late 2016, majority of opposing expert’s opinions excluded under Daubert and Fresenius granted summary judgment on FCA claims.
  • Serving as lead consulting expert for a large hospital chain facing a government investigation relating to allegations of FCA violations. Analyzing sampling and extrapolation methods used by the government and determining appropriateness and statistical validity of the approach. Evaluating potential economic damages. Presented analyses to counsel for DOJ.
  • Serving as lead consulting expert for a medical device manufacturer facing a government investigation regarding allegations of FCA violations for several products. Utilizing several large data sets pertaining to the products at issue and their clinical usage to perform statistical and empirical analyses of the allegations. Evaluating potential economic damages. Presented analyses to counsel for DOJ and OIG on several occasions.
  • Provided a report relating to statistical analysis of several data sets to a medical device manufacturer in support of its interactions with FDA regarding its manufacturing of a certain product.
  • Serving as lead consulting expert for a large provider of healthcare services. Analyzing several large internal data sets to gather insights on issues relating to the frequency and medical appropriateness of certain services. Assisting counsel in discussions with the government.
  • Served as lead consulting expert for a major drug manufacturer throughout a multiyear government investigation spanning several products and qui tam allegations. Provided consulting expertise on liability, causation, and damages. Allegations included off-label promotion, violations of the Anti-Kickback Statute, and violations of federal and state FCA laws. Analyzed hundreds of millions of claim records submitted to Medicare and state Medicaid programs. Also analyzed the manufacturer’s pricing patterns and medical providers’ prescription and drug administration patterns. Evaluated potential economic damages. Worked closely with counsel for several years throughout various phases of government investigations and litigation. Participated in settlement discussions with the government.
  • Served as lead manager supporting expert analyses of Dr. B. Douglas Bernheim on behalf of Amgen in Amgen, Inc. v. F. Hoffman-La Roche Ltd. The court was considering whether to grant a permanent injunction barring F. Hoffman-La Roche from selling and marketing a product that infringed Amgen’s patents. Analyses and testimony focused on the implications of recently introduced Medicare reimbursement policies on competitive dynamics among drug manufacturers and the impact of the potential entry of F. Hoffman-La Roche’s product on Amgen, healthcare providers, Medicare, and third-party payors. Evaluated discovery documents and data and provided advice to counsel throughout expert and fact witness depositions and the permanent injunction hearing. The court granted a permanent injunction in Amgen’s favor, barring F. Hoffman La-Roche from entering the US market with its competing drug.
  • Worked on behalf of AMD in the landmark microprocessor antitrust case AMD v. Intel. Led a team supporting Dr. B. Douglas Bernheim to review documents and depositions pertinent to understanding Intel’s and AMD’s relationships with their customers. Before the case was brought to trial, AMD and Intel agreed to a $1.25 billion settlement that included restrictions on certain business practices of Intel.
  • Supported expert testimony of Dr. Randal Heeb in United States v. Dicristina regarding econometric and game theoretical evidence. The case centered on the question of whether poker is a form of gambling, and therefore illegal under the Illegal Gambling Business Act (IGBA). Based on analyses conducted using a data set of more than 415 million hands of online No Limit Hold’em poker, Bates White demonstrated that poker is, in fact, predominantly a game of skill, not chance. Judge Jack B. Weinstein ultimately ruled that poker is “predominated by skill” and therefore does not fit the definition of gambling under the IGBA.

Education

BS, Policy Analysis and Management, Cornell University