'My Bad,' say insurers, of contentious faker-finder test

By Legal News Line | Mar 12, 2008

Dr. Paul Lees-Haley

A new psychological test that claims to reveal whether an injured plaintiff is really suffering has launched a bunfight amongst psychologists on both sides of personal-injury lawsuits. The so-called Fake Bad Scale (FBS), which scores suspected malingerers via a series of questions, has recently become a popular tool in damages cases, the Wall Street Journal (WSJ) reports. Recent research suggests 75% of expert-witness neuropsychologists for the defense, usually insurance companies, have used it. FBS inventor Dr. Paul Lees-Haley, who garners 95% of his income from appearing as an expert defense witness, chose its 43 questions from the more than 500 in the oft-used Minnesota Multiphasic Personality inventory (MMPI) test. In fact, the University of Minnesota Press, which publishes the MMPI, early last year controversially endorsed the FBS test and even made it part of the MMPI test. A release by distributors Pearson Assessments said a "strong majority" of the eight experts questioned on the FBS's utility agreed it was established by research. The decision drew strong criticism from psychologists and personal-injury lawyers who claim FBS sometimes scores subjects as malingering who were giving honest answers. Use of the FBS in personal-injury lawsuits has become more contentious since a Florida circuit judge last year dismissed its value in uncovering fakers. "The Court concludes that the FBS is very subjective and dependent on the interpretation of the person using or interpreting it," the judge wrote. "There is no definitive scoring because the scoring has to be adjusted up and down based on the circumstances and there is a high degree of probability for false positives." Retired University of Minnesota psychologist Dr. James Butcher says that judge got it right in tossing the FBS. "Virtually everyone is a malingerer according to this scale," he told WSJ. "This is great for insurance companies, but not great for people." Following the Florida judge's dismissal of the FBS evidence, the jury found for the plaintiff and awarded him $1.4 million.

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