Full opinion text
MEMORANDUM OPINION AND ORDER LEINENWEBER, District Judge. Relator Cleveland Tyson (hereinafter, “Tyson”) filed this qui tarn action under the False Claims Act (the “FCA”), 31 U.S.C. § 3729(a)(1) & (2), and the Illinois Whistleblower Reward and Protection Act (collectively, “the FCAs”), 740 ILCS 175/1, et seq., against Defendants Amerigroup Illinois, Inc. (hereinafter, “AI”) and Ameri-group Corporation, Inc. (hereinafter, “AC”). Tyson alleged that Defendants defrauded the United States and the State of Illinois by engaging in discriminatory marketing practices in the course of conducting a Medicaid HMO. After several weeks of trial, a jury found for Plaintiffs. I. BACKGROUND Only a very basic factual background will be set forth here. Additional facts will be provided as necessary. A. The False Claims Acts The FCA permits private persons to file a form of civil action against, and recover damages on behalf of the United States, from any person who: (1) knowingly presents or causes to be presented, to an officer or employee of the Unites States Government ... a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government. 31 U.S.C. §§ 3729(a)(l)-(2). To state a claim under the FCA, plaintiffs must show that (1) defendants presented a claim for payment; (2) the claim was false; and (3) defendants knew the claim was false. 31 U.S.C. §§ 3729(a)(l)-(2). The Illinois Whistleblower Act is virtually identical. 740 ILCS 175/1 et seq.; see also U.S. ex rel. Humphrey v. Franklin-Williamson Human Services, Inc., 189 F.Supp.2d 862, 867 (S.D.Ill.2002). B. Facts At trial, Plaintiffs presented two liability theories. Under the first theory, Plaintiffs argued that Defendants fraudulently induced the IDPA to enter into contracts by promising not to discriminate based on the need for health services, even though it had no intention of keeping that promise. This misrepresentation made Defendants ineligible to contract with the IDPA and receive Medicaid funds. As such, all contracts at issue violated the FCAs. Under the second theory, Plaintiffs argued that Defendants submitted false claims for payment, the enrollment applications (containing implied certifications), causing the State of Illinois to submit forms CMS-37 and CMS-64 (containing false express certifications) to the Federal Government. Because capitation rates were based on Defendants’ promise that they would not discriminate, Defendants’ discrimination undermined the actuarial basis for the capitation rates that IDPA paid to Defendants. By misrepresenting that it would not discriminate, Defendants knew that it would receive inflated capitation payments. As such, each enrollment form constituted a false claim because it sought the payment of capitation rates that Defendants knew were inflated. When the IDPA submitted the CMS-37 and CMS-64 forms, it certified that the expenditures were in compliance with federal laws and regulations; these certifications were likewise false. The jury found for Plaintiffs in the amount of $48 million in government damages. Additionally, the jury’s responses to special verdict forms evidenced agreement with both liability theories. The jury also found that there were 18,130 false claims; this interrogatory was asked purely for purposes of determining the applicable civil penalties. This interrogatory was not “upon one or more issues of fact the decision of which is necessary to a verdict,” as the jury need not determine the number of false claims to return a verdict under the FCA. See Fed. R. Civ. P. 49(b). Thus, it was not a special interrogatory. Id. II. STANDARD Judgment as a matter of law must be granted where “no reasonable jury could have found for [plaintiffs] on each essential element of their claim.” Harper v. Albert, 400 F.3d 1052, 1061 (7th Cir.2005). This is a stringent standard, Christie v. Foremost Ins. Co., 785 F.2d 584, 586 (7th Cir.1986); “any conflicts in the evidence must be resolved in favor of the resisting party, and every permissible inference favoring that party which can be drawn from the evidence must be drawn.” Pieczynski v. Cerda, 1988 WL 67646 at *1 (N.D.Ill. June 20, 1988). When a motion for judgment as a matter of law is based on an insufficient evidence argument, a court must decide whether the jury was presented with a “legally sufficient amount of evidence from which it could reasonably derive its verdict.” Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 924 (7th Cir.2000). The motion must be denied if “the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed.” Mathur v. Board of Trustees of Southern Illinois University, 207 F.3d 938, 941 (7th Cir.2000). If a rational jury could have found for the plaintiff, then the court must uphold the verdict. Id. at 941. This Court must grant a new trial where “the clear weight of the evidence is against the jury verdict, the damages are excessive or for some other reason the trial was not fair.” Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 1293 (7th Cir.1993). This standard requires a court to accord “the jury’s verdict great deference.” Calusinski v. Kruger, 24 F.3d 931, 936 (7th Cir.1994). A jury’s verdict cannot be overturned if a reasonable basis exists in the record to support the verdict, viewing the evidence in the light most favorable to the prevailing party, and leaving issues of credibility and weight to the jury. Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir.2004). Where a jury instruction is at issue, a party is entitled to a new trial if the Court finds that “(1) the instruction inadequately states Seventh Circuit law; and (2) the error likely confused or misled the jury causing prejudice to the movant.” Gile v. United Airlines, Inc., 213 F.3d 365, 375 (7th Cir.2000). III. AMERIGROUP ILLINOIS’ MOTION FOR JUDGMENT AS A MATTER OF LAW/MOTION FOR NEW TRIAL A. Fraudulent Inducement Theory Under their first liability theory, Plaintiffs contended that AI fraudulently induced the IDPA to enter into a contract by (1) signing the 2000 MCO Contract (which included a marketing restriction against health-based discrimination) and (2) stating in a letter that “AMERICAID will not discriminate against clients with health issues which includes pregnant women.” 1. Actionable False Statements Initially, AI asserts that its express (but false) assurances that it would comply with the non-discriminatory marketing requirements are not actionable under the FCA. As this Court held in the summary judgment opinion, U.S. ex rel. Main v. Oakland City University, 426 F.3d 914, 917 (7th Cir.2005) precludes AI’s argument. Under Oakland City, Plaintiffs must show that (1) the non-discrimination provisions were prerequisites to participation in the Medicaid HMO program under federal law; (2) AI knew when it signed the 2000 MCO Contract with the IDPA that discriminatory marketing practices were forbidden; and (3) AI planned to utilize discriminatory marketing practices. AI argues that Plaintiffs attempt to premise FCA liability on the mere breach of contract or violation of regulations, but this is not the case (as made perfectly clear in Oakland City). “[Mjaking a promise that one intends not to keep is fraud” and actionable under the FCA; an after-the-fact breach of a contract — that was not planned at the time the contract was entered into — is just that: a breach. Oakland City, 426 F.3d at 917. AI’s attempts to distinguish Oakland City are likewise misguided. AI also asserts that the false statement needed to have been a “condition to payment” and that this Court should read a “directness” requirement into the FCA which “demand[s] some direct relation between the injury asserted and the injurious conduct alleged,” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). A condition to participation is a condition to payment, U.S. ex rel. Hendow v. University of Phoenix, 461 F.3d 1166, 1174 (9th Cir.2006) (reasoning based on Seventh Circuit’s opinion in Oakland City), and Plaintiffs presented sufficient evidence for a reasonable jury to have found that the non-discrimination provisions were conditions to participation. “If a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among layers of paperwork.” Oakland City, 426 F.3d at 916. The requested “directness” requirement, furthermore, has been drawn by AI from case law outside the FCA context. See, e.g., Anza v. Ideal Steel Supply Corp., — U.S. -, -, 126 S.Ct. 1991, 1996, 164 L.Ed.2d 720 (2006) (RICO). The mere fact that the Supreme Court has read such a requirement into other statutes is not sufficient justification for this Court to read it into the FCA. 2. Evidence of Inducement AI also contends that Plaintiffs failed to present sufficient evidence that false statements actually induced the IDPA to enter into contracts because Plaintiffs did not present an “affirmative statement” that so indicates. U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996). Hopper, however, only requires that the jury have found that “the false statement is the cause of the Government’s providing the benefit” — or that the nondiscrimination provisions are prerequisites to participation in the Medicaid program and AI falsely indicated it would comply. Id. Oakland City never mentions this “affirmative statement” requirement. Plaintiffs introduced evidence at trial to satisfy the Oakland City standard: (1) the nondiscrimination provisions were prerequisites to participation in the Medicaid HMO program under federal law, see 42 U.S.C. § 1396(m)(2)(A)(v); (2) that AI knew about the nondiscrimination provisions and statutes and told IDPA that it would comply with them; and (3) that Amerigroup planned to violate (and was already violating) the non-discrimination provisions. It is thus this Court’s belief that sufficient evidence was presented at trial to meet the Oakland City requirements for fraudulent inducement. B. Implied Certification Theory 1. Materiality a. Materiality Standard and Sufficiency of Evidence Defendants contend that the nondiscrimination provisions were not material because they were not a condition to payment under the IDPA contract. Plaintiffs assert that they met the materiality requirement as previously described by this Court. At summary judgment, Defendants argued that unless the information withheld from the government was “information critical to the decision to pay,” they were not liable under the FCA and that the existence of contractual remedies for the alleged violations precluded a finding of materiality. This Court held that “the question is whether Defendants would have been awarded the contracts and been paid or allowed to keep their contracts with HFS if HFS knew that they were discriminating against pregnant and ill individuals” and distinguished the cases on which AI still relies. U.S. ex rel. King v. F.E. Moran, Inc., 2002 WL 2003219 at *11 (N.D.Ill. Aug. 29, 2002) (citing Luckey v. Baxter Healthcare Corp., 183 F.3d 730, 732-33 (7th Cir.1999)). As such, Plaintiffs are not required to prove that the false claims were “information crucial to the decision to pay” or identify a federal regulation that “expressly state[s] the provider must comply in order to be paid.” Mikes v. Straus, 274 F.3d 687, 700 (2d Cir.2001) (emphasis added). The jury heard evidence that AI’s promises not to discriminate were material because AI would not have been awarded the contracts without them. The Ninth Circuit has held that “a condition to participation is a condition to payment,” as “if we held that conditions of participation were not conditions of payment, there would be no conditions of payment at all.” Hendow, 461 F.3d at 1174-76; see also S.Rep. No. 34S, 99th Cong., 2d Sess. at 9, reprinted in 1986 U.S.C.C.A.N. 5266, 5274 (“claims may be false even though the services are provided as claimed if, for example, the claimant is ineligible to participate in the program.”). Plaintiffs presented evidence that the federal government could not have approved the 2000 contract absent these promises. Additionally, the nondiscrimination provisions were material because they formed the actuarial basis upon which capitation rates were calculated. Plaintiffs further assert that the enrollment forms were material to IDPA’s payments because their submission, which impliedly certified compliance with the non-discrimination provisions of the contract, triggered the government’s inflated payments. Additionally, the IDPA’s certification of compliance with applicable laws and regulations (false because of AI’s conduct) was material to the United State’s decision to pay. The parties disagree as to the meaning of former IDPA Bureau Chief of Contract Management Kelly Carter’s (hereinafter, “Carter”) testimony. Defendant claims that Carter’s testimony that had she (and the IDPA) been aware of AI’s marketing practices, the IDPA would have “taken the opportunity to reeducate them” rather than terminate the contract indicates that the materiality requirement was not met. Plaintiffs assert that Carter’s testimony was not so clear; in fact, Carter testified that she would also have gone to her supervisors to let them know what was happening and seek direction on how to proceed. It is this Court’s opinion that, regardless, there was sufficient evidence for a reasonable jury to have concluded that the materiality element was met. b. Materiality Instruction AI argues that it is entitled to a new trial because the jury was not properly instructed on the implied certification theory’s materiality element. Instruction 32 stated: “Fourth: that the false claim or statement involved facts that were material to the government’s payment.” Defendants assert that an instruction explaining that AI’s implied certificate of compliance with the non-discrimination duties needed to be a precondition to IDPA’s payment in order for liability to attach, and that the given instruction gave the jury no guidance as to what the claim was and whether the claim “involved facts” that were “material” to payment. This Court believes that the jury instruction was proper as given. Other courts have considered “materiality” a concept that has a clear enough meaning that it need not be defined in the jury instructions. U.S. v. Castillo, 406 F.3d 806, 821 n. 6 (7th Cir.2005); U.S. v. Matsumaru, 244 F.3d 1092, 1102-03 (9th Cir.2001); U.S. v. Blasini-Lluberas, 169 F.3d 57, 67 (1st Cir.1999). When reviewing a challenge to a jury instruction, furthermore, a court “must view the instruction as a whole and consider the challenged instruction ‘both in the context of the other instructions given and in light of the allegations of the complaint, opening and closing arguments and the evidence of record.’ ” Sims v. Mulcahy, 902 F.2d 524, 533 (7th Cir.1990). There was testimony at trial that the government could not have contracted with AI if it did not promise not to discriminate based on health status and that the non-discrimination provisions were integral to determining the level of capitation rates paid to AI — as such, there should have been no confusion. C. Rulings Regarding the Enrollment Forms To be liable under the FCA, a defendant must submit a false claim: “any request or demand ... for money or property ... made to a contractor, grantee, or other recipient if the United States Government provides any ... of the money or property ... requested or demanded, or if the Government will reimburse any ... recipient for any portion of the money ...” 31 U.S.C. § 3729(c). 1. The Enrollment Forms as Claims AI argues that enrollment forms cannot be claims because they do not demand payment and do not have the purpose of inducing the Government to immediately part with money. See 31 U.S.C. § 3729(c); U.S. v. Neifert-White Co., 390 U.S. 228, 232, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968). These arguments were rejected in the summary judgment opinion; the enrollment forms are claims because they were “submitted in order to receive payment,” even if payment was not immediate. AI also argues this Court erred in instructing the jury that the enrollment forms constituted claims. As Plaintiffs point out, however, whether the enrollment forms were claims was a legal issue determined at summary judgment. Therefore, an instruction that the forms were claims was not improper, and Plaintiffs need not have presented evidence at trial that the enrollment forms were claims. 2. Falsity a. Lack of a Falsity Instruction AI argues that the Court erred by failing to instruct the jury how to determine if the enrollment forms (the claims) were false, and that by failing to give the jury such an instruction, the Court implied that each claim was false. It is not error to fail to give the definition of a statutory term where the term “carries its natural meaning and that meaning is accessible to all jurors.” Castillo, 406 F.3d at 821. It appears to this Court that “false” carries its natural meaning and that this meaning would be accessible to the jurors. Instructions 31 and 32, furthermore, required the jury to find that AI submitted false claims. b. Evidence of Falsity Defendants argue that there was insufficient evidence that the enrollment forms were false, as the Plaintiffs admitted that the forms were true and accurate on their face. Plaintiffs advanced two theories that the forms were false: (1) the forms purportedly included implied certifications that AI was not engaging in health-status discrimination and (2) the forms sought inflated capitation payments based on AI’s certification that it would not discriminate against pregnant women and “unhealthies.” This Court believes that there was sufficient evidence presented for a reasonable jury to determine that the enrollment forms were false. Plaintiffs showed that the forms included implied certifications that it was complying with the contracts. See Oakland City, 426 F.3d at 916 (“the phase-two application is itself false because it represents that the [enroll-ee] is enrolled in an eligible institution, which isn’t true”). Plaintiffs also showed that AI’s promises of non-discrimination were integral to payment because they formed the actuarial basis for the capitation rates and that by illegally excluding pregnant women and “unhealthies,” AI undermined the basis of these capitation payments. Plaintiffs, furthermore, showed that AI submitted enrollment forms requesting inflated capitation payments— payments to which it knew it was not entitled because it was engaged in discriminatory marketing practices not permitted under the IDPA contract. Defendants argue that because the enrollment forms do not explicitly demand any particular amount of capitation-based payments, there was insufficient evidence of falsity. As this Court stated in the summary judgment decision, “a claim does not need to be an actual invoice.” U.S. ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C.Cir.1995). Defendants also argue that Plaintiffs failed to show that AI’s enrolled population was actually “more healthy” than that on which the capitation rates were based. The enrollment forms impliedly certified that AI was complying with the contract terms; as AI was not (and the falsity is in the implied certification), Plaintiffs need not show the relative healthiness of AI’s enrolled population. 3. Presentment to the Federal Government The Federal FCA extends only to claims that are presented to “an officer or employee of the United States Government.” 31 U.S.C. § 3729(a)(1), (a)(2). This Court has already held that claims submitted to state Medicaid agencies or intermediaries are considered to be claims presented to the federal government and can give rise to liability under the FCA. U.S. ex rel. Tyson v. Amerigroup Illinois, Inc., 2005 WL 2667207 at *1-3 (N.D.Ill. Oct. 17, 2005). AI argues that a new trial is necessary because Plaintiffs failed to show that the enrollment forms were submitted to the Federal Government. Plaintiffs presented sufficient evidence of presentment. Plaintiffs showed that the IDPA submitted CMS-37 and CMS-64 forms to the federal government in order to obtain reimbursement for HMO-related expenses. The IDPA indicated the amount it anticipated to incur in HMO-related expenses on each CMS-37 and the amount it had actually paid on each CMS-64. These amounts were based on enrollment forms submitted by AI. AI’s arguments that it did not cause these forms to be submitted or know that they would be submitted are frivolous. As a seasoned Medicaid participant, AI had to have been aware that the IDPA would seek reimbursement from the federal government for the claims. AI argues that the implied presentment by the IDPA is insufficient as a matter of law because the IDPA submitted aggregated total expenditure tallies based in part on AI’s enrollment forms rather than the forms themselves. In the motion to dismiss decision, this Court noted that “the federal government ultimately approved the purportedly false Medicaid claims processed and submitted by the IDPA.” The practical effect of AI’s argument would require that the IDPA submit thousands of enrollment forms to the federal government — rather than aggregate the same information into a single tally- — solely to preserve future FCA actions. Although the Eastern District of Louisiana has ruled differently, this Court cannot see why aggregation by a State agency alone should foreclose federal FCA liability. See, U.S. ex rel. Rafizadeh v. Continental Common, Inc., 2006 WL 980676 (E.D.La. Apr. 11, 2006). This is not, after all, a case in which the false claims have been aggregated into a general budget or otherwise obscured; instead, they have been aggregated in such a way so as to cut down on the transmission of reams of paper. AI also argues that the jury’s response to the number of claims interrogatory did not include the CMS-37 and CMS-64 forms the IDPA submitted to the federal government, and thus, a reasonable jury could have found that these forms were presented to the federal government. This argument is beside the point; the interrogatory regarding the number of false claims cannot be used to impeach the verdict because it was not a special interrogatory. D. Government Knowledge and Contract Interpretation Rulings 1. Government Knowledge AI argues that the jury was improperly instructed regarding the effect of government knowledge on liability. The FCA requires proof of “knowing” violations. 31 U.S.C. § 3729(b). AI asserts that a party cannot knowingly violate the FCA if the government knew about the conduct on which the false claims counts are based. Plaintiffs contend that the test requires that the government both know of and approve the conduct. The instruction stated: Knowledge of Falsity No proof that Defendants had specific intent to defraud the United States or State of Illinois is required. A claim based on the Defendants’ ... good faith belief that the government approved the conduct at issue is not a claim that violates the False Claims Act. The Seventh Circuit addressed government knowledge in the FCA context in U.S. ex rel. Durcholz v. FKW Inc., 189 F.3d 542, 545 (7th Cir.1999). In Durcholz, a subcontractor submitted a bid which followed the government’s instructions — instructions that made it technically false. Id. at 543-45. Because the government instructed the subcontractor to draw up the bid in a false manner, the Seventh Circuit held that the FCA did not apply. Id. Although some language supports AI, the critical language and the facts indicate that the proper test is whether “the government knows and approves of the particulars of a claim for payment before the claim is presented.” Id. at 545. This Court has noted that mere acquiescence (rather than approval) by government employees is not sufficient to avoid liability, as requiring mere acquiescence would preclude FCA liability any time a government employee and a defendant were in cahoots. U.S. ex rel. Asch v. Teller, Levit & Silvertrust, P.C., 2004 WL 1093784 at *3 (N.D.Ill. May 7, 2004). Defendants also cite to U.S. ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1020 (7th Cir.1999), but the decision there rested on the falsity’s immateriality; any commentary regarding government knowledge was dicta. If the test to avoid liability is whether the government both knew and approved Defendants’ discriminatory marketing practices, then the jury instruction given, holding Plaintiffs to an even more rigorous showing than required by law, was not prejudicial. 2. Contract Interpretation a. AI’s Reasonable Interpretation of the Contract A defendant cannot be held liable under the FCA for conduct based on the reasonable, but incorrect, interpretation of a contract. U.S. v. Basin Elec. Power Co-op., 248 F.3d 781, 792 (8th Cir.2001); U.S. ex rel. Butler v. Hughes Helicopters, Inc., 71 F.3d 321, 329 (9th Cir.1995). AI argues that it presented “un-contradicted” evidence that its conduct was consistent with a reasonable interpretation of the non-discrimination provisions in the IDPA contracts. However, there was ample evidence that AI purposely avoided “unhealthies” and pregnant women and was motivated by profit in doing so — evidence that contradicts the evidence that AI’s conduct was consistent with reasonable contract interpretation. As such, this Court finds that a reasonable jury could have found that AI’s discrimination was not based on a good faith interpretation of the contract. b. Contract Interpretation Jury Instruction AI also argues that the jury instruction regarding contract interpretation was improper. This Court gave an instruction which stated the applicable law: “A claim based on Defendants’ good faith interpretation of the contract ... is not a claim that violates the False Claims Acts.” AI’s proposed instruction tied the contract interpretation defense to the contract’s nondiscrimination provisions. Although there was evidence at trial regarding several contractual provisions, there could be no legitimate confusion as to which provisions were relevant. AI, furthermore, could have highlighted these provisions in relation to the contract interpretation defense for the jury during closing arguments. E. Discovery and Evidentiary Rulings 1. IDPA’s Letter to Humana (DX 32) AI argues that this Court erred in several evidentiary rulings related to a letter, DX 32. DX 32 was written by May Meredith (“Meredith”) for Nelly Ryan’s (“Ryan”) signature and sent to Humana, an MCO that had the same contract as AI. The letter stated that “only eligible enrollees in Cook County may be enrolled and should not be discriminated against based on health status. Pregnant women or persons undergoing a course of treatment under the care of a non-affiliated physician should be advised that they should remain with their current physicians until they deliver or their course of treatment is completed. It is very important that pregnant women receive their prenatal care and receive continuity of care throughout their pregnancy.” The letter was admitted into evidence, but Meredith was not allowed to testify because she was “too attenuated” — she had admitted that she was not trained in IDPA’s policy regarding enrolling pregnant women. AI argues that Meredith was not, in fact, attenuated because she wrote the letter and attended the Humana training. This Court maintains that although she attended the meeting and took notes, she was not trained in the IDPA policy. AI, furthermore, was able to present testimony regarding the letter from two IDPA witnesses, Kelly Carter and Debbie Saunders. Additionally, AI argues that this Court erred by preventing AI from soliciting testimony regarding DX 32 but permitting Plaintiffs to do so. This Court disagrees; AI ignores that it presented the jury with testimony from five witnesses regarding the letter, including two from the IDPA. 2. IDPA Discovery Early in this case, a magistrate judge ruled that the IDPA was a separate and distinct entity over which neither the State nor the Attorney General’s office had control and whose documents could not be deemed in the State’s possession, custody, and control for the purposes of discovery. As such, IDPA was treated as a third party. AI asserts that this decision severely prejudiced its ability to take probative discovery from the IDPA on the issue of government knowledge, and that this Court need not “stick to a particular ruling if it is convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.” Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). This Court has, ad nauseum, addressed this issue and applied the law of the case. It will not reverse that decision now. F. Damages 1. Mr. O’Brien’s Testimony Defendants assert that Plaintiffs’ damages expert, Mr. Kevin O’Brien, was improperly admitted. Mr. O’Brien set forth four different ways to quantify the government’s damages: (1) a comparison of comparing AI’s medical loss ratio (the “MLR”) to the MLRs of a peer group; (2) a comparison of AI’s birthrate to the fee for service birthrate; (3) third trimester births; and (4) damages for women and young children based on the new August 2003 rate structure. Although Defendants’ earlier objections addressed all four of these damage estimates, the post trial motion primarily concerns the MLR comparisons. a. Admissibility under Daubert AI asserts that Mr. O’Brien’s testimony was improperly admitted under Federal Rule of Evidence 702 and Daubert. Rule 702, as informed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), “assigns to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786; Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 816 (7th Cir.2004). i. Relevance of Mr. O’Brien’s Damages Estimates AI argues that Mr. O’Brien’s estimate of damages did not “assist the trier of fact” and should have been excluded as irrelevant. Under the FCA, Plaintiffs are entitled to the amount of damages “which the Government sustains because of ... [Defendants’] act.” 31 U.S.C. § 3729(a). The proper measure of damages is thus the difference in the market values between what the government actually received and what it would have received but for the false claim. U.S. v. Bornstein, 423 U.S. 303, 316 n. 13, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976). In his MLR comparison, Mr. O’Brien calculated the loss to the government by estimating the additional costs foisted on the state for each person Defendants avoided enrolling. Because no records were kept of the avoided persons, Mr. O’Brien was not able to calculate the loss associated with the avoided persons (although one method attempted to do so). Thus, Mr. O’Brien used the data that he did have — AI’s MLR and the MLRs for a selected “peer group.” By comparing the MLRs, Mr. O’Brien arrived at an estimate of the government’s losses due to Defendants’ discriminatory marketing practices. AI argues that Mr. O’Brien’s method of assessing damages is tantamount to requesting that AI disgorge its profits (because MLRs are a measure of profits). Disgorgement of profits is not a remedy recoverable under the FCA. U.S. ex rel. Taylor v. Gabelli, 2005 WL 2978921 (S.D.N.Y. Nov. 4, 2005). This Court does not believe that Mr. O’Brien’s method of assessing damages constituted disgorgement of profits. Notably, Mr. O’Brien did not calculate the profits obtained by AI and claim that these were the government’s damages, but rather compared AI’s profit margin to the profit margin of a group of other MCOs. Thus, O’Brien presented the government’s damages as the difference between the profit margin of an MCO engaged in fraudulent marketing discrimination and a peer group of MCOs not engaged in fraudulent marketing discrimination. This measure of damages forces AI to disgorge the money the government would not have paid had it known AI was discriminating (assuming that AI’s additional profit constituted the market value of payments for discriminated-against persons). AI also argues that Mr. O’Brien’s theory of damages is irrelevant because it is not tied to the number of enrollment applications submitted by AI. The parties agree that liability attaches when a false statement is used “to get a false or fraudulent claim paid or approved by the government.” 31 U.S.C. § 3729(a)(2). Under their false claims theory, Plaintiffs argued that each enrollment form was false because it contained an implied false certification that AI was complying with the required nondiscrimination policy and that capitation rates were calculated based on this certification. As such, AI sought inflated capitation rates in each enrollment form. Mr. O’Brien’s damages estimate seeks to recover, for the government, the extent to which these capitation payments were inflated. Additionally, Plaintiffs remind this Court that in cases where a Defendants’ bad acts have made calculation of damages difficult, the law eases the standards for damage measurement. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931). It would have been nearly impossible for Plaintiffs to provide an accurate calculation of damages based on the fact that AI walked away from pregnant and “unhealthies” before ever signing them up — and thus leaving no paper trail for Plaintiffs to convert into a more accurate damages calculation. ii. Reliability Before admitting expert testimony, a court must assess the reliability of that testimony. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; U.S. v. Conn, 297 F.3d 548, 555-57 (7th Cir.2002). A court must “reject any subjective belief or speculation.” Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir.2002). It is important to remember that neither the Federal Rules of Evidence nor Daubert require that expert witness testimony be “ ‘scientific’ (natural scientific or social scientific) in character”; a person with “relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness.” Tuf Racing Products, Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir.2000). Thus, to the extent that AI argues that Mr. O’Brien’s testimony is unreliable because it is not statistical, AI is wrong. AI objects to the fact that Mr. O’Brien selected his comparison group of MCOs rather than using a randomly selected peer group. Mr. O’Brien’s peer group included other AC plans (because he believed that certain programs at AC would affect the way in which each of the Amerigroup plans operated), other plans operated in Cook County, and a Nevada and South Carolina plan. Mr. O’Brien explained that he eliminated commercial plans (plans “like I would buy my insurance through” as opposed to Medicaid programs), provider sponsored plans (plans “where there is a group of hospitals that have an interest in a health insurance plan”), and primarily, plans operating in mandatory states. (Apparently, Mr. O’Brien believed that Nevada was a mandatory state when he selected his peer group, and later discovered he was incorrect. Nevertheless, Plaintiffs assert that the inclusion of this mandatory group helped Defendants by lowering Mr. O’Brien’s damages estimates.) This Court does not believe that Mr. O’Brien’s method of selecting his comparison group was based merely on subjective beliefs or speculation. Instead, Mr. O’Brien appears to have (to the best of his ability) reasonably eliminated MCOs that were differently situated from AI. The conclusions as to difference were based on articulable standards and on Mr. O’Brien’s experience in the MCO business — hardly speculation. Defendants argue that Mr. O’Brien made no attempt to adjust for “major systemic differences” between AI and the peer group. As an initial matter, Mr. O’Brien did adjust for some of the variables cited by AI, including operating in mandatory states (although he made a mistake regarding the Nevada plan), having ownership of their own clinics (provider-sponsored plans), and different Medicaid products and different Medicaid programs by states (variables accounted for by the differing capitation rates). Plaintiffs and Mr. O’Brien admit that he did not account for the following variables in selecting his comparison group: negotiating different provider rates, having state-controlled MLRs or earnings, and achieving different degrees of health care management. The mere fact that Mr. O’Brien failed to consider some variables (that AI wishes he did) is not sufficient to find his methods unreliable under Daubert. Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986); Adams v. Ameritech Services, Inc., 231 F.3d 414, 423 (7th Cir.2000); Lauzon v. Senco Products, Inc., 270 F.3d 681, 693 (“an expert’s causation conclusion should not be excluded because he or she has failed to rale out every possible alternative cause.”). Lastly, AI argues that Mr. O’Brien improperly deducted two standard deviations from the mean to reach a lower damages estimate. Mr. O’Brien explained that he deducted the standard deviations to account for factors that might have contributed to the difference between AI’s MLR versus the peer group’s MLR. Mr. O’Brien testified at trial that this was not a necessary step in calculating damages. If all Mr. O’Brien was trying to do was provide a more conservative damages estimate, and this benefitted AI, this Court does not believe that it would render his methodology so unreliable as to be inadmissible under Daubert. 2. Proof of Harm to the Government Defendants contend that judgment as a matter of law should be entered in their favor because Plaintiffs failed to prove that the government was harmed by AI’s conduct. Specifically, Defendants assert that Plaintiffs did not establish that the relative health/birthrates IDPA was entitled to receive differed from the relative health/birthrates in AI’s enrollment. Defendants cite no cases that require such a showing. Plaintiffs, however, contend that they met their burden by showing the discrepancy between AI’s MLRs and the MLRs of AI’s peer group, and that the jury heard evidence that AI had lowered its medical costs by avoiding pregnant women and other unhealthies. This Court believes that Plaintiffs presented evidence from which the jury could have concluded that the government was harmed — the discrepancies between the MLRs of AI and AI’s peer group. 3. The Exclusion of Defendants’ Expert AI further contends that this Court erred by barring Mr. Monical’s testimony. Mr. Monical sought to testify that enrolling pregnant women is profitable if one considers the mother’s entire family. According to AI, Plaintiffs thus were able to exploit the myth that pregnant women are unprofitable, and a new trial should be ordered. In ruling on the motion in li-mine, this Court concluded that Mr. Monical’s testimony was a post hoc rationalization of AI’s actions — -AI performed the profitability analysis only three years into this lawsuit. This Court still believes that the testimony was irrelevant. If AI did not know that enrolling pregnant women was, in fact, profitable, then this fact should not have been considered by the jury. IV. AMERIGROUP CORPORATION’S MOTION FOR JUDGMENT AS A MATTER OF LAW/MOTION FOR NEW TRIAL A. Verdict “Inconsistency” AC argues that it is entitled to judgment as a matter of law because the jury indicated that only AI submitted false claims in answering the number of claims interrogatory. As noted above, this interrogatory was not a special interrogatory, and thus cannot be used to impeach a general verdict. Fed. R. Civ. P. 49, 58. B. Jury Instructions AC asserts that it is entitled to a new trial because the jury instructions regarding its liability were erroneous and prejudicial. The following instructions regarding AC’s liability were given: Instruction No. 31: In order to sustain Plaintiffs burden of proof for its claims against Ameri-group Corporation on its theory of fraudulent inducement, Plaintiffs must prove, by a preponderance of the evidence, that Amerigroup Corporation actively participated in the fraudulent conduct which fraudulently induced the government to enter into the Contract. Instruction No. 32: “In order to sustain Plaintiffs’ burden of proof for its claims against Defendants Amerigroup Corporation on its theory of submission of false claims, Plaintiffs must prove, by a preponderance of the evidence, that Amerigroup Corporation actively participated in the fraudulent conduct which caused the false claims to be submitted.” (Both Instructions No. 31 and No. 32 began by explaining that the jury must find that Plaintiffs had satisfied their burden as to each element of FCA liability as against AI, and then concluded with the excerpts reproduced above.) Defendants argue that the “active participation” standard is legally incorrect. Plaintiffs assert that the “active participation” standard accurately states the law and alternatively that the instructions, when viewed in their entirety, required that the jury find all four elements of the FCA as against AC. As an initial matter, Plaintiffs assert that AC has waived its objection. Under Federal Rule of Civil Procedure 51(c)(1), a party must object to an instruction on the record, stating distinctly the matter objected to and the grounds of the objection. Sims, 902 F.2d at 535; Emmel v. Coca-Cola Bottling Co. of Chicago, 904 F.Supp. 723, 743 (N.D.Ill.1995). Such objection “must be specific enough that the nature of the error is brought into focus.” Schobert v. Illinois Dept. Of Transp., 304 F.3d 725, 729 (7th Cir.2002). Plaintiffs argue that the objection lodged by AI’s attorney, Mr. Sterling, is inadequate because it complains of the interrogatories, not the instructions. Mr. Sterling’s objections were sufficient. He objected to the “active participation” standard’s vagueness and its failure to account for all the FCA elements with regards to the questions. The Court indicated that it understood that this objection recapped an argument already waged and lost. Mr. Sterling also clearly objected to Instruction Nos. 31 and 32. These statements were nowhere near as deficient as those in Emmel (where the record gave no indication of basis of the objection whatsoever) and Sims (where the objection never mentioned the basis of the later appeal). As in Schobert, this Court believes that Mr. Sterling’s objection “alert[ed] the district court to the pertinent areas of disagreement.” Schobert, 304 F.3d at 729. The objections, however, were made by AI’s attorney, Mr. Sterling, and Plaintiffs claim that this preserved only AI’s objection. Defendants were jointly represented prior to trial, but AC obtained separate counsel shortly before the trial began. Defendants explained “this is the way the clients would like to be represented. They feel ... that this is in their best interest.” Regardless, AI and AC submitted only one set of consolidated proposed jury instructions and objections. The Seventh Circuit has not addressed this point, but the Eleventh Circuit has held that a co-defendant’s objection is not sufficient as to other defendants. Kenney v. Lewis Revels Rare Coins, Inc., 741 F.2d 378, 382 (11th Cir.1984). The Second, Fifth, and Ninth Circuits, however, have held that an otherwise sufficient objection by a co-defendant preserves a party’s objection where “further exception would have been fruitless.” U.S. v. Lefkowitz, 284 F.2d 310, 313 n. 1 (2d Cir.1960); U.S. v. White, 589 F.2d 1283, 1290 n. 14 (5th Cir.1979); U.S. v. Bagby, 451 F.2d 920, 927 (9th Cir.1971). Given that AI and AC jointly submitted instructions and objections, this Court finds that additional objection by AC would have been fruitless — and finds that AC preserved its objection. The “active participation” standard is an accurate statement of the law, as a defendant who actively participates in the knowing submission of false claims is hable under the FCA. U.S. v. President and Fellows of Harvard College, 323 F.Supp.2d 151 (D.Mass.2004); U.S. ex rel Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir.2006). “The FCA covers ‘indirect mulcting of the government’ ” and “a defendant may be liable if it operates under a policy that causes others to present false claims to the government.” Harvard College, 323 F.Supp.2d at 187. In Harvard College, an FCA action alleged that Harvard and two employees had submitted false claims by making false certifications that all requirements of a grant had been complied with. Id. at 187-89. As it turned out, the two employees had made investments that violated provisions of the grant prohibiting conflicts of interest. Id. The Harvard College Court held that although one individual defendant had not personally presented any claims to the government, he could be liable under the FCA because he had participated in the process of submitting claims by approving invoices and expenses that would eventually be charged to the federal government. Id. The Court noted that the defendant “was engaged in the claims process.” Id. at 188 n. 30. Sikkenga likewise supports the disputed instructions. There, plaintiff asserted that a defendant “caused” a false claim to be presented under the FCA. Sikkenga, 472 F.3d at 713. The Court held that “mere knowledge of the submission of claims and knowledge of the falsity of those claims is insufficient to establish liability under the FCA.” Id. at 715 (citing U.S. v. Murphy, 937 F.2d 1032, 1039 (6th Cir.1991)). Instead, the Court required “some sort of an affirmative action.” Id. Active participation in the claims submitting process, however, is not sufficient. While “mere knowledge of the submission of claims and knowledge of falsity” are insufficient in and of themselves for liability, such knowledge is required. See Harvard College, 323 F.Supp.2d at 186 (considering whether each defendant met each FCA requirement). If such knowledge were not required, FCA liability would extend to a person who, in complete ignorance (and absent circumstances indicating reckless disregard), delegated submission of false claims forms to a corrupt bookkeeper. When reviewing a challenge to a jury instruction, however, a court “must view the instruction as a whole and consider the challenged instruction ‘both in the context of the other instructions given and in light of the allegations of the complaint, opening and closing arguments and the evidence of record.’ ” Sims, 902 F.2d at 533. The instructions did not ask the jury to determine whether AC had participated in the submission of claims to the government (for example), but whether AC had participated in “the fraudulent conduct which caused the false claims to be submitted.” This Court believes that the reference to “fraudulent conduct” and “false claims” was sufficient to convey to the jury that AC needed to have done more than merely participate in what it believed was proper behavior, especially considering that Plaintiffs’ theory was at all times that AC actually directed the discriminatory marketing practices central to this action. Fraudulent conduct, after all, necessarily requires the knowledge of falsity (even the jury instructions themselves admit that a fraudulent claim is one that is knowingly false). C. Plaintiffs’ Closing Argument AC argues that Plaintiffs’ remarks during closing arguments regarding the “active participation” standard were erroneous and confusing to the jury, thus warranting a new trial. Plaintiffs assert that Defendants never objected to the closing arguments, and AC does not contest this fact. As such, this Court will not consider the impropriety of Plaintiffs’ remarks. D. Sufficiency of the Evidence Lastly, AC argues that it is entitled to either judgment as a matter of law or a new trial because the evidence put forth by Plaintiffs is insufficient to prove an FCA violation against AC. As this Court held in denying AC’s initial judgment as a matter of law, the evidence put before the jury was sufficient to prove that AC actively participated in AI’s conduct that fraudulently induced the government to enter into the contract and that AC actively participated in AI’s fraudulent conduct causing the false claims to be submitted. In support of this motion, AC divides Plaintiffs’ evidence into three categories and then attacks the evidence in these categories. First, AC contends that evidence in the category of “AC’s involvement in AI’s efforts to reduce third trimester enrollments” merely shows that AC and AI together compiled quarterly reports and that one of these referred to reducing third trimester enrollments. Plaintiffs’ evidence, however, shows that the quarterly reports (called PMQI reports) were initiatives that were created jointly by AI and AC and which AC’s CEO claimed to be “the very core of Amerigroup quality and cost improvement programs.” One of these initiatives was to reduce third trimester enrollments. Plaintiffs showed that AI executives reported to AC regarding AI’s progress under these initiatives regularly, and that AC employees were “very involved in helping” AI to “develop policy guidelines” including the policy to “not approach people ... late in pregnancy.” Plaintiffs also showed that AC employees would make policy directives during MOR meetings and that Major Job Objectives (“MJOs”), which were tied to bonuses and compensation, were issued by AC relating to the reduction of third trimester enrollments. Second, AC asserts that evidence of AC’s involvement in AI’s marketing efforts was insufficient. Plaintiffs, however, showed that Herman Wright, AC’s Chief Marketing Officer, who was in charge of creating marketing philosophy for the entire company, spent time training marketing representatives in Chicago. Mr. Wright would give AI “a lot of direction ... and support ...” via quarterly meetings with AI’s Chief Marketing Officer. Mr. Wright testified that he did not target “unhealthies.” Debra Gorden, the AC Regulatory Manager for the Illinois Plan, testified that AC would actively participate in the marketing strategies of the AI by making suggestions and changes to marketing materials and discussing the marketing materials with AI’s CEO. Third, AC contends that evidence of AC’s communications with the IDPA was insufficient to support a jury finding against AC. Plaintiffs, however, put forth evidence at trial that: high-level IDPA employees like Carter did not draw any distinctions between AC and AI; Carter directed correspondence to AC regarding AI’s failure to submit certain required documents; AI sent its April 30, 1999 Corrective Action Plan (promising not to discriminate against clients with health issues, including pregnant women) to the IDPA on AC stationary; AC submitted its AC “Illinois Marketing Specialists New Hire Training Facilitator’s Guide” to IDPA (which omitted any reference to the Illinois Plan’s practice of avoiding pregnant women and “unhealthies”); and C regularly sent IDPA the submissions that were required by the IDPA contracts. Thus, this Court finds that there was sufficient evidence to support the jury’s finding that C actively participated in I’s fraudulent conduct in submitting the false claims and in fraudulently inducing the IDPA to enter into the contracts. V. DAMAGES A. Remittitur A court is granted wide discretion when considering a motion for remitti-tur. Medcom Holding Co. v. Baxter Travenol Laboratories, 106 F.3d 1388, 1397 (7th Cir.1997). A court gives substantial deference to a jury’s calculation of damages, but must also “ensure that the award is supported by competent evidence.” Farfaras v. Citizens Bank & Trust Co. of Chicago, 2005 WL 670523 at *4 (N.D.Ill. Mar. 21, 2005). A court makes three inquiries: “whether the award is ‘monstrously excessive’; whether there is no rational connection between the award and the evidence ...; and whether the award is roughly comparable to awards made in similar cases.” Id. This test does not require a court to consider whether a jury traversed a logical path to reach its verdict, but merely to evaluate whether the end result was reasonable. Outboard Marine Corp. v. Babcock Industries, Inc., 106 F.3d 182, 186 (7th Cir.1997). Defendants each briefly argue that the jury’s award of $48 million in compensatory damages is excessive and contrary to the evidence. As an initial matter, Plaintiffs argue that Defendants cannot make a remit-titur argument because they failed to offer their own estimation of damages at trial. The cases hold that a defendant who “goes for broke” and offers no damages estimate risks being hit with a larger verdict than he might like. See Kasper v. St. Mary of Nazareth Hosp., 135 F.3d 1170, 1177-78 (7th Cir.1998); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1230 (7th Cir.1995). The bottom line in the cases, however, was that the verdicts were still reasonable. Kasper, 135 F.3d at 1177-78; Avitia, 49 F.3d at 1230. The mere fact that Defendants failed to offer an estimate of damages will not save an unreasonable or excessive award from re-mittitur. See Republic Tobacco, L.P. v. North Atlantic Trading Co., 2003 WL 22794561 at *6 (N.D.Ill. Nov. 21, 2003) rev’d. in part on other grounds, at Republic Tobacco Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717, 735 (7th Cir.2004). After reviewing the record, this Court concludes that the compensatory award is not “monstrously excessive” and is rationally related to the evidence presented. There was evidence put before the jury that the Defendants engaged in discriminatory marketing practices and then repeatedly lied to the IDPA about these practices. Mr. O’Brien gave the jury the following estimates of damages: (1) approximately $38 million, $58 million, $62 million, or $78 million based on the discrepancy between AI’s MLR and the peer group’s MLR; (2) approximately $20 million not expended by Defendants on deliveries and NICU expenses due to the avoidance of pregnant women; (3) approximately $10 million for deliveries and associated NICU costs due to the avoidance of women in their third trimester of pregnancy; and (4) approximately $16 million if the IDPA had been using the 2003 contract’s rate structure in 2000. Defendants’ expert, Mr. Fisher, opined that if the difference between AI’s MLR and the other Cook County MCOs’ MLRs was due to illegal discrimination, damages would be approximately $45 million. Additionally, Plaintiffs offered a damages estimate of $96 million, based on the difference between what AI received from the state and what it spent on medical expenses. Defendants argue that this represents a disgorgement of profits, damages not available under the FCA. Taylor, 2005 WL 2978921. The proper measure of FCA damages is the difference in the market values between what the government actually received and what it would have received but for the false claim. Bornstein, 423 U.S. at 316 n. 13, 96 S.Ct. 523. Plaintiffs argue that this $96 million figure accurately measures the difference between what AI received from the state (the market value of non-discriminatory medicaid services) and the market value of the medical expenses actually delivered (the services actually provided to the government). The mere fact that this could also constitute a disgorgement of profits does not negate the fact that it represents a proper estimate of damages under the FCA. To say that the jury verdict was monstrously excessive on this record would be difficult. While this Court cannot know exactly how the jury reached its verdict, the verdict falls in the middle of the range of possible damage estimates presented, and closely lines up with the estimate espoused by the defense expert. The jury rejected Plaintiffs’ argument that the proper damages were the $96 million difference between what the government was willing to pay for a non-discriminatory medicaid HMO and the medical services actually provided. Unfortunately for Defendants, the jury also rejected Plaintiffs’ estimates of the cost savings made by AI as a result of discriminating against pregnant women in general and women in their third trimester of pregnancy. Instead, the jury settled upon an intermediate amount that falls within the range of damages suggested. See Kasper, 135 F.3d at 1177-78. Likewise, this Court cannot (as Defendants suggest) seize upon one of the various damages estimates and use this as the sole benchmark for evaluating the reasonableness of the award. Absent some legal or other deficiency in the higher estimates, this Court has to consider the jury’s award in light of all of the estimates offered, not merely the estimate Defendants now choose to espouse. Consider the analogous situation where the defendant offers a low estimate of damages and the plaintiff offers a high estimate. It would make no sense for a court to consider an intermediate award from the perspective of only the defendant’s estimate (absent, of course, some reason for discounting the plaintiffs estimate). Plaintiffs have publicly claimed that this verdict is “believed to be the largest ever by a jury under the federal False Claims Act.” This Court believes that while this may be true, it does not necessitate that the verdict is excessive — this Court believes that the fact that the verdict is the largest to date is likely due in large part to the fact that many FCA actions settle and note that Defendants do not attempt to point to a case with analogous facts. As such, this Court cannot find that the jury’s verdict is monstrously excessive, and will uphold it. B. Trebling Under the FCA, a defendant is liable for “3 times the amount of damages which the Government sustains because of the [defendant’s] act”; the district court is responsible for applying the treble damages multiplier. U.S. v. Rogan, 459 F.Supp.2d 692, 719-20 (N.D.Ill.2006). The jury found that the Government suffered $48 million in damages as a result of Defendants’ acts. As such, this Court enters judgment in the amount of $144 million against Defendants. C. Civil Penalties In addition to compensatory damages, both FCAs require that this Court assess civil penalties against Defendants based on the number of false claims that they submitted. Although Defendants argued in their briefs that this Court should not “double count” the false claims by assessing penalties under both the state and federal acts, they conceded this point in oral argument. See U.S. ex rel. Fahner v. Alaska, 591 F.Supp. 794, 799-801 (N.D.Ill.1984) (imposing civil penalties under both FCAs). Under the federal FCA, this Court must assess a fine per false claim between $5,500 and $11,000. 6Jp Federal Register 4,7099, 47103 (1999). Under the Illinois FCA, penalties range from $5,000 to $10,000 per false claim. 740 ILCS 175/3. Defendants concede that, absent Eighth Amendment concerns, this Court must impose penalties within the range provided by statute. It is within this Court’s discretion whether to impose the maximum, the minimum, or some intermediate penalty. Rogan, 459 F.Supp.2d at 727. 1. The Number of False Claims In determining the number of false claims for which this statutory penalty should be assessed, “we are actually construing the provisions of a criminal statute. Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in usin