New Tactic By Defense Attorneys To Prejudice Claimants

Our Atlanta personal injury attorneys are constantly monitoring emerging rends in the legal field. Recently, a controversial test that is supposed to detect “malingering” is gaining popularity among defense experts in personal injury, workers’ compensation and other cases.
The “Fake Bad Scale” is being offered by medical experts as evidence that plaintiffs are fabricating or exaggerating their pain or other medical symptoms.
A few courts have ruled on the admissibility of the test, including three Florida courts that excluded testimony about it last year. In one of those cases, a trial judge in Hillsborough Country, Fla. ruled that the test was “not an objective measurement of effort, malingering or over-reporting of symptoms” because there was no manual for administering or scoring the test.
The test is still relatively unknown among the plaintiffs’ lawyers, but attorneys who are following the issue say the test is often used in workers’ comp cases. More recently, it has appeared in suits brought under the Defense Base Act involving contractors who claim post-traumatic stress after returning from Iraq or other military assignments.
The fake bad scale was created in 1991 by Dr. Paul Lees-Haley, a neuropsychologist in Woodland Hills, Calif. who testifies as an expert witness for the defense. It is a series of 43 true or false questions such as “I have very few headaches,” “I have nightmares every few nights” and “My sex life is satisfactory.”
A leading critic of the test, Dr. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and “greatly overestimates” malingering. In one study, Butcher tested over 2,000 women in a care center for eating disorders and found that 44 percent would have been misclassified as malingerers using the test.
He also criticized the test for not taking into account gender-based norms, noting that, for example, women in the general population report more headaches than men, as well as hot flashes, another question on the fake bad test.
Plaintiffs’ attorneys are just beginning to attack the test in court.