Defensor, PAUL LEES-HALEY Front Page Wall Street Journal by Armstrong

[Guest guest]

PERSONALITY CHECK

Malingerer Test Roils

Personal-Injury Law

'Fake Bad Scale'

Bars Real Victims,

Its Critics Contend

By DAVID ARMSTRONG

March 5, 2008; Page A1

A test designed to expose fakers is roiling the field of personal-injury

law, distressing plaintiffs and strengthening the hand of employers and

insurers.

• The Focus: A test called the Fake Bad Scale is meant to spot litigants

who may be feigning their injuries.

• Gaining Credibility: Use in personal-injury suits has grown since test

became part of respected Minnesota Multiphasic Personality Inventory.

• Controversy: Some psychologists and plaintiffs' lawyers protest that test

identifies too many real victims as possible fakers.

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. In

hundreds of cases, expert witnesses have testified that the test provided

evidence that plaintiffs were lying about their injuries, just as suggested by

the

test's colorful name: the Fake Bad Scale.

Use of the scale surged last year after publishers of one of the world's

most venerable personality tests, the Minnesota Multiphasic Personality

Inventory, endorsed the Fake Bad Scale and made it an official subset of the

MMPI.

According to a survey by St. Louis University, the Fake Bad Scale has been used

by 75% of neuropsychologists, who regularly appear in court as expert

witnesses.

ON THE TEST

(http://online.wsj.com/article/SB120395812629090737.html?mod=Leader-US)

There seems to be a lump in my throat much of the time.

Once a week or oftener, I suddenly feel hot all over, for no real reason.

I have a great deal of stomach trouble.

But now some psychologists say the test is branding as liars too many people

who have genuine symptoms. Some say it discriminates against women, too. In

May, an American Psychological Association panel said there appeared to be a

lack of good research supporting the 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.

" Virtually everyone is a malingerer according to this scale, " says a leading

critic, Butcher, a retired University of Minnesota psychologist who

has published research faulting the Fake Bad Scale. " This is great for

insurance companies, but not great for people. "

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. "

Someone who suffers from, say, post-traumatic stress disorder might

legitimately

answer " true " to these questions. But doing so would earn the test-taker two

points toward the total of 23 or so that marks a person as a possible

malingerer.

Other test statements are " I have very few headaches " and " I have few or no

pains. " These are false, someone who has chronic headaches would say. Again,

those replies would incur two more points toward a possible assessment as a

malingerer.

About a third of the questions relate to physical symptoms; there are

questions about stress, sleep disturbance, and low energy. There is also a

batch of

questions related to denial of bad behavior. For instance, those who answer

false to " I do not always tell the truth " get a point toward malingering.

Measuring Process

Lees-Haley, the psychologist who created the test, say that while

individual items " can be made to seem like evidence for a flawed " measuring

process, what's important is the total score. He says the scale has " been

tested

empirically and shown to be effective. "

Dr. Lees-Haley says criticism is being orchestrated by plaintiffs' lawyers.

One, Dorothy Clay Sims in Ocala, Fla., has written guides for other

plaintiffs' lawyers on how to challenge the Fake Bad test. She is leading an

effort to

reverse the decision that incorporated it into the Minnesota Multiphasic

Personality Inventory, which is used in diagnosing and treating patients at

mental-health facilities and in screening people for sensitive jobs like law

enforcement.

Dr. Lees-Haley himself once testified frequently for plaintiffs in

personal-injury lawsuits, but about 18 years ago he began to work mainly for

the

defense side. 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.

Working for litigants is Dr. Lees-Haley's main source of income. He has said

in court cases that 95% of this work is on behalf of the defense. He charges

$3,500 to evaluate a claimant and $600 an hour for depositions and court

appearances, his fee schedule says.

Dr. Lees-Haley didn't dream up the 43 true-or-false statements in the Fake

Bad Scale. He picked them from among the more than 500 true-or-false

statements in the elaborate, decades-old MMPI.

He tested responses to the 43 questions on three groups. One was

personal-injury litigants he said were malingering. A second group was people he

asked

to answer as if they were trying to fake emotional distress resulting from a

car accident, toxic exposure or employment. A third group consisted of

litigants he said had actually been injured.

The known fakers averaged a score of 27.6 on the Fake Bad Scale; those who

had been instructed to try to fake emotional distress averaged 25; and the

truly injured litigants averaged only 15.7, Dr. Lees-Haley wrote in a research

report.

He also compared the scores with those of two large groups who had taken the

MMPI; both averaged below 20.

Dr. Lees-Haley concluded that his test " appears to be a promising procedure "

for detecting malingerers, and posited that anyone scoring over 20 tended

toward fakery. He paid to have the results published in a small Montana-based

medical journal, Psychological Reports, in 1991. Use of his Fake Bad Scale in

litigation slowly grew.

It recently figured in the case of , a onetime truck driver

in Iraq for the KBR unit of Halliburton Inc. He said he hadn't been able to

hold a job since returning to the U.S. in 2004. Two doctors concluded Mr.

had " chronic " and " fairly severe " post-traumatic stress disorder. He

filed a disability claim that was denied by the insurer of Halliburton's

since-sold KBR unit.

Mr. appealed to the U.S. Labor Department, which has jurisdiction

in such cases. He testified that memories of attacks on his convoys, seeing

dead bodies and smelling burning flesh led to nightmares and sleeping problems

that left him too irritable and difficult to work with to hold a job.

A psychiatrist hired by the defense, D. Griffith of Houston, concluded

Mr. was exaggerating his symptoms, and cited his score of 32 on the

Fake Bad Scale. A Labor Department administrative-law judge denied Mr.

's claim, citing the test results along with inconsistencies in his

testimony. Mr. is appealing.

Dr. Griffith won't discuss the case but says the Fake Bad Scale is helpful

in confirming fakers, who he estimates make up 40% of personal-injury

plaintiffs.

In seven prior cases where Dr. Griffith worked for KBR or its insurer, he

found five of the claimants to be malingering, court records show. Asked about

the high percentage of Iraq truck drivers he found to be faking, he said:

" When you come back to the States, you suddenly discover if you are sick you

can

make more money than if you were working. "

Cutoff Score

Dr. Butcher and some other researchers published a report critical of the

Fake Bad Scale in 2003. They looked at more than 20,000 people, including

several thousand psychiatric inpatients, who had taken the MMPI and calculated

their Fake Bad Scale scores by checking their replies to the scale's 43

questions.

More than 45% of psychiatric inpatients had Fake Bad Scale scores of 20 or

more, meaning they were possible fakers, under Dr. Lees-Haley's original

cutoff score. Using a higher cutoff score, 24, the researchers still found that

23% of people were flagged as possible malingerers. In every subgroup, women

had much higher scores than men.

The authors argued it was unlikely that so many psychiatric inpatients could

or would have fooled doctors into diagnosing and admitting them to

hospitals. It concluded that the Fake Bad Scale generated an " unacceptably

high " rate

of false verdicts of malingering, and also that it was biased against women.

Says Dr. Lees-Haley: " One of Dr. Butcher's primary strategies for

criticizing the FBS is to apply it to groups for which it was never intended,

and then

complain that it isn't appropriate. Of course not. The FBS was designed for

personal-injury claimants. "

In 2006, the publishers of the Minnesota Multiphasic Personality Inventory

took a look at the Fake Bad Scale. Those who take the MMPI receive scores on

various categories, such as paranoia, depression and social introversion. The

question was whether to make the Fake Bad Scale one of these scored

categories as well.

The University of Minnesota Press convened a panel of eight experts and

pointed to two published reports for them to consider. One was a book chapter

partly written by Dr. Lees-Haley himself. The other report was a review of

existing research, concluding that the " preponderance of the current

literature "

supports the use of the test in litigation.

The review of existing research ended up looking at 19 studies, at least 10

of which had been done by Dr. Lees-Haley or other psychologists who do work

for insurance companies. The review had excluded 21 other studies from

consideration, including the negative analysis by Dr. Butcher's team.

Dr. Butcher, a member of the advisory panel, opposed adding scores of the

Fake Bad Scale to the results that are reported when a person takes the

Minnesota Multiphasic Personality Inventory. Six of the eight panelists

approved,

although they differed on how the test should be used and what cutoff scores

were appropriate. The University of Minnesota Press then did make the Fake Bad

Scale a subset of the MMPI.

A few months later, the American Psychological Association's committee on

disabilities protested to the publisher that it had acted prematurely. The APA

committee later said it hadn't evaluated the test itself, but noted that the

test was controversial and said: " Any test that over predicts malingering in

persons with disabilities may result in their being denied necessary and due

compensation, benefits or treatment. " The committee asked the MMPI publisher

to have the Fake Bad Scale reviewed by a group at the University of Nebraska

that specializes in evaluating psychological tests.

The University of Minnesota Press didn't respond to a call. But in a letter

to Ms. Sims, the Florida plaintiffs' lawyer, a lawyer for the university said

it " recognizes that the FBS is the subject of significant debate in the

academic and professional community.... The University believes that the

process

leading up to the FBS' release was sound. "

Courtroom Test

The experts' disagreement spilled over into the courtroom in a case brought

against a Florida gasoline carrier, Strawberry Petroleum Inc. Lloyd son

was sitting at a stoplight in May 2004 when his pickup was rear-ended by one

of the gasoline company's loaded tanker trucks, sending the pickup crashing

into another truck ahead of him. His lawsuit said his head shattered the rear

window and he ended up with diminished mental capacity and symptoms of

depression and inattention.

A psychologist hired by the defense said in a deposition there was reason to

believe Mr. son was faking. The witness cited his " very high " score of

31 on the Fake Bad Scale.

Before the expert could testify at the trial, held in Hillsborough County

Circuit Court, the plaintiffs moved for a hearing on the scientific validity of

the Fake Bad Scale. Judge Sam Pendino ruled in June that " there is a genuine

controversy surrounding use of this test " and " no hard medical science to

support the use of this scale to predict truthfulness. " He said that drawing

conclusions from a test that gives points for malingering when a plaintiff

gives honest answers to questions based on actual injuries " has no place in

this

courtroom. "

In January, a jury determined that Mr. son had suffered a permanent

injury from the crash and awarded him $1.4 million from the gasoline carrier.

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[Guest guest]

Sharon, was this used in the study of " the rollong unterus gathers

no moss " ? just wondering, because I remember saying that with the MCS

that just the building that a person was in at the time of takeing

any tests and how that building and whats in it would affect how

anyone does on a test. and gee, with the brain damage,Toxic

rncephalopathy it's hard enough. delayed thought process, messes with

me big time. it's not that my long term memory is not in tact it's

just that sometimes thoughts just dont come until later or something

triggers the memory. my short term is bad too. in other words, just

being asked a question can distract. you know, yesterday was brain

damage awareness day, lol's, I missed it. seems theres a lot of

people out there suffering while their brain damage goes

unreckonized. I would adcice anyone here to refuse testing like this

until they first are checked for brain damage. there's a hudge

difference between being a lier and the damage to the brain caused by

toxins exposure in a damp moldy environment. just another reason why

we need proper diagnoses and it may have rook me over 2 years to

research and try to understand what has happened to me when it

wouldn't have took near as long if I wasn't brain damaged. but

haveing this disease is what actuakky led the way, as hard as that

was. the knowing, without one single dought in my mind what caused it

has been my conviction. and waalaaa, theres no big mystery, nothing

that cant be explained about this illness and if I can research with

my brain injury theres no excuse why we are not haveing our illness

reconized and treated. NONE