Testifying in Subject Matter Outside Experience a Daubert Risk

Failing to fully vet an expert witness' self-proclaimed subject matter expertise runs the risk of successful Daubert challenges and excluded expert opinions, damaging expert witnesses' reputations as well as attorneys'.

In United States v. Truitt, No. 18-2324 (7th Cir. 2019), Cathy Truitt was indicted on four counts of submitting false IRS refund claims. Her primary defense was that she lacked the requisite mens rea because she truly believed that the cult she belonged to held a trust and that her refund claims were legitimate.

Truitt joined the Moorish Science Temple of America, which views itself as a sovereign “ecclesiastical government” in March 2009. The Moorish Temple teaches that neither the states nor the federal government have any authority over its members, who purportedly hold something like diplomatic immunity. The local leader of Truitt's Chicago group, Queen Akefe Muzari El, told her congregants that the Temple's founding prophet had established a trust for Moorish nationals and that they should claim refunds on a series of IRS Form 1041s (the tax return used by trusts and estates) and to refile if they received a frivolous filing notices.

In August 2009, Truitt filed three identical 1041 forms for 2006, 2007 and 2008, each claiming entitlement to a refund for the trust in her name because of an excess of withholding of $304,204.30 in taxes. In reality, there was no trust, no taxes withheld.

The IRS responded that each of the filings was frivolous. Truitt then filed four more identical 1041s, while the IRS responded with more frivolous filing notices. In the flurry of filings, the IRS inexplicably issued a refund check for $304,204.30. It found the error quickly and within five weeks notified Truitt that she was required to return the refund.

Truitt, however, spent the refund. When IRS agents visited her home in Chicago (bought with part of the refund money), she refused to acknowledge herself by name. When they showed her a copy of the refund check, she denied having seen it.

To support her defense, Truitt retained Dr. Fogel, who claimed in his report to be an expert in “charismatic groups” which he distinguished from other types of groups which he referred to as cultic that use physical coercion.

At trial in the US District Court, the government moved in limine to exclude Dr. Fogel's testimony. The trial judge granted the motion, concluding that even if Dr. Fogel's testimony was narrowly construed, limiting his opinion to only saying that Truitt was the type of person susceptible to indoctrination, Dr. Fogel failed to identify the scientific basis for his conclusions. The judge did, however, allow the defense to amend its submission.

In an addendum, Dr. Fogel proposed giving the opinions that the Moorish Temple was a charismatic group under his definition and that “charismatic groups can cause a person to ignore his moral compass and do things he otherwise wouldn't.”

The trial judge rejected the newly proposed opinions because he found that Dr. Fogel lacked the expertise to opine about charismatic groups as he had only worked on a single case involving religious themes, and his methods were unreliable as Dr. Fogel “deviated dramatically from the methods of other experts in the field”, including the expert whose work he used to inform himself on charismatic groups, Dr. Marc Galanter.

The trial judge noted that Dr. Fogel did little to learn about the Moorish Temple other than interview Truitt, who had reason to convince Dr. Fogel that the church tricked her into filing false claims. Whereas Dr. Galanter conducted surveys of group members and extensive interviews of large numbers of cult members, Dr. Fogel did not. The judge found that Dr. Fogel “inexplicably applied a watered-down version” of Dr. Galanter's methodology.

Truitt appealed on the single issue of the exclusion of Dr. Fogel's opinion.

The 7th U.S. Circuit Court of Appeals affirmed the trial court's exclusion, finding that, while courts should not exclude expert witnesses because they are generalists, they are within their discretion to exclude testimony from experts without experience in the subject they purport to testify about. While Dr. Fogel had extensive experience evaluating criminal defendants, generally focusing on issues like insanity, competence to stand trial, and risk of violence, he had almost no experience cultic groups. The 7th Circuit found that the trial judge was well within his discretion to exclude Dr. Fogel's testimony, both because of his limited experience and his questionable methodology.

While the focus of the 7th Circuit's decision was on the expert witness, it would seem clear that Truitt's legal counsel failed to fully vet Dr. Fogel or his expert opinion. Relying on an expert witness' self-proclaimed expertise runs the risk of successful Daubert challenges and excluded expert opinions, damaging expert witnesses' reputations as well as attorneys'.