October 10, 2019 Practice Points

Surviving Daubert Challenges Through Early Expert Vetting

The Seventh Circuit’s decision upholding the exclusion of a proposed expert on “charismatic groups” shows the importance of choosing experts with defensible methodologies.

By Ebony S. Morris

Attorneys routinely hire experts to assist with their litigation matters, and those experts’ significance often turns trials into “battles of the experts.” For that reason, choosing the right expert witness can be critical. Nevertheless, few attorneys take the time to fully vet their expert witnesses and, as a result, risk retaining experts whose opinions are subject to Daubert challenges and possible exclusion. The Seventh Circuit’s decision in USA v. Truitt, No. 18-2324 (7th Cir. Sept. 12, 2019), provides just one example of how a lack of early vetting can sink a case at trial.

USA v. Truitt involved Cathy Truitt, a Moorish Science Temple of America member who had filed seven identical tax returns, each of which falsely claimed that she was entitled to a $300,000 tax refund. The IRS identified six of the seven returns as fraudulent, but, for unknown reasons, it approved one and sent her a check for the full amount. The IRS then quickly discovered the error and demanded Truitt return the funds. Truitt did not respond, and instead, spent the money on jewelry, a condominium, tickets to sporting events, and a business investment.

The IRS launched an investigation, and eventually, Truitt was indicted by a grand jury for making false claims against the United States in violation of 18 U.S.C. § 287 and theft of government funds in violation of 18 U.S.C. § 641. A grand jury found her guilty as charged. On appeal, Truitt challenged the exclusion of her expert witness, Dr. Fogel, who proposed to testify that Truitt was a member of a “charismatic group,” which he defined as a type of cultic group that influences its members through “a shared belief system, a high level of social cohesiveness, a strong influence to comply with the group’s behavioral norms, and assigning charismatic and sometimes divine power to the group or its leadership.” Truitt offered his testimony to bolster an argument that she lacked the requisite mens rea for the crimes. Not surprisingly, the government moved to exclude Dr. Fogel’s testimony, and the trial court excluded the testimony under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rules 702 and 704(b) of the Federal Rules of Evidence.

On appeal, the Seventh Circuit held that Dr. Fogel did not possess the qualifications to render an expert opinion regarding charismatic groups, and further, that the trial judge reasonably concluded that Dr. Fogel, a general psychologist, was not qualified to answer specific questions about the religious themes at play in the case. The court noted that Dr. Fogel’s experience with other kinds of group dynamics did not prepare him for the question at hand. Next, the Seventh Circuit held that Dr. Fogel’s methodology and case analysis did not satisfy the requirements of Daubert and Rule 702 of the Federal Rules of Evidence, because, as the trial court pointed out, Dr. Fogel did very little to learn about the Moorish Temple other than interviewing Truitt herself.

Dr. Fogel’s definition of a “charismatic group” required an evaluation of whether there was a “shared belief system,” a “high level of social cohesiveness,” and a “strong influence to comply with the group’s behavioral norms.” The Seventh Circuit held that the trial court reasonably concluded that an evaluation of those three factors required at least a minimal inquiry into the experiences of other group members. In preparation of his opinion, Dr. Fogel only spoke to Truitt, who undoubtedly had a self-serving reason to convince him that she did not intentionally submit false tax returns to the IRS. Additionally, Dr. Fogel omitted his steps in the analysis even though the expert he relied on to learn about the subject would have taken additional steps, such as circulating written surveys, conducting extensive interviews with a large number of members, and finally spending significant time observing the group in action. Given Dr. Fogel’s unreliable opinion, the Seventh Circuit affirmed the trial judge’s decision and noted that the trial judge was justifiably concerned with Dr. Fogel’s watered-down version of this methodology outlined in his report.

The Seventh Circuit’s decision in USA v. Truitt provides a perfect example of the importance of retaining the right expert witness. When searching for an expert witness, attorneys should take the time to learn the subject matter of the expertise at issue, identify a pool of experts in that field, vet the experts, and analyze how courts treat the expert in that field. As in Truitt, it is simply not enough to find an expert witness with self-proclaimed expertise in the subject matter at issue. Doing so will likely lead to a justified Daubert challenge by opposing counsel.

Ebony S. Morris is an attorney with Garrison, Yount, Forte & Mulchay, P.C., in New Orleans, Louisiana.


Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).