New test could expose malingerers in personal injury cases

Marilyn Tennissen Mar. 10, 2008, 5:53am

Fakers beware -- there is now a test that may be used to determine if plaintiffs are making false claims about personal injuries.

Proponents hail the true-or-false test as a valid way to identify people feigning pain, psychological symptoms or other ills to collect a payout, the Wall Street Journal reported in a March 5 article.

The test, called the Fake Bad Scale, was created by a psychologist and has been used in hundreds of cases by expert witnesses who say the test provided evidence that plaintiffs were lying about their injuries.

The test asks a person to answer true or false to 43 statements, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights."

A total score of around 23 marks the person as a possible malingerer.

Paul Lees-Haley, the psychologist who created the test, says the scale has "been tested empirically and shown to be effective."

Use of the scale surged last year after publishers of the Minnesota Multiphasic Personality Inventory endorsed the Fake Bad Scale and made it an official subset of the MMPI, the article stated.

But the test is drawing criticism from some psychologists and some trial attorneys.

"Virtually everyone is a malingerer according to this scale," a leading critic, James Butcher, a retired University of Minnesota psychologist who has published research faulting the Fake Bad Scale, told the Wall Street Journal. "This is great for insurance companies, but not great for people."

Lees-Haley told the WSJ that criticism is being orchestrated by plaintiffs' lawyers.

Attorney Dorothy Clay Sims of Ocala, Fla., is leading an effort to have the test removed from the MMPI and has written guides for other plaintiffs' lawyers on how to challenge the Fake Bad test.

In two Florida court cases last year, state judges, before allowing the test to be cited, held special hearings on whether it was valid enough to be used as courtroom evidence. Both judges ended up barring it.

Lees-Haley was once an expert witness for plaintiffs in personal injury lawsuits, but has since begun to work mainly for the defense. According to the article, he says he devised his test because he saw so many claimants he believed to be faking mental or other distress, and existing tests didn't spot them.

The Fake Bad Test recently played a role in the personal injury case of a former Halliburton employee cited in the WSJ article.

Plaintiff Steven Thompson had been a truck driver in Iraq for Halliburton's KBR unit. He claimed he had not been able to hold a job since returning from Iraq in 2004, and two doctors determined he was suffering from post-traumatic stress disorder. However his disability claim was denied by Halliburton's insurer.

A psychiatrist hired by the defense, John D. Griffith of Houston, concluded Thompson was exaggerating his symptoms, which included nightmares and disturbing memories of attacks on his convoy. Dr. Griffith cited that Thompson scored 32 on the Fake Bad Scale.

A Labor Department administrative-law judge denied Thompson's claim, citing the test results along with inconsistencies in his testimony.

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