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Michael Phelan
Michael Phelan
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Fake Bad Scale: Weapon of Defense Neuropsychologists

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The Fake Bad Scale (FBS) is a bogus test created by Paul Lees-Haley to wrongly label personal injury claimants as “fakers.” The FBS is junk science and should not be allowed in a court of law. Indeed, it violates the province of the jury by attempting to divine the credibility of witnesses. No test can act as a lie detector, which is how forensic defense neuropsychologists are trying to use the FBS. Determining the truthfulness of a witness is the job of the jury, not a paid defense psychologist. Dr. Lees-Haley is himself a professional defense expert who derives 95% of his business working against personal injury claimants. He charges $3,500 to evaluate a claimant and $600 an hour for depositions. In my opinion, Lees-Haley created the FBS to bolster his and and other defense experts’ opinions in court. An on-line article in the Wall Street Journal skims the surface of the scientific problems with the Fake Bad Scale test.

I have had recent experience with the misapplication of the FBS. I represented a wonderful person who suffered a severe brain injury. Prior to the injury, she worked two jobs and was full of energy. She suffered in her accident a blow to her head which caused a subdural hematoma, which in turn caused her brain to swell like a tick. Surgeons had to remove half of her skull in order to evacuate the blood clots and relieve the swelling. This poor woman walked around with a piece of her skull missing for months, during which time her head resembled a squashed melon. Not surprisingly, she experienced permanent brain damage, with symptoms that included headaches, change in personality, loss of memory, word finding problems, problems thinking, anxiety, paranoia, depression, loss of sleep, and pain. It was a slam dunk brain injury case. The neuropsychologist hired by the defense administered to my nice client the FBS and concluded that she was a malingerer who was faking her symptoms.

The tragedy is that the publishers of the Minnesota Multiphasic Personality Inventory (MMPI) recently succumbed to the Lees-Haley defense crowd and made the FBS a subset of the MMPI. The FBS contains true/false questions designed to categorize people who are experiencing genuine psychological distress or physical injuries as malingerers. For example, agreeing that one experiences known symptoms of brain damage, such as headaches, nausea, dizziness, poor sleep, or fatigue are each counted as one point toward being a malingerer. Also, if the test taker happens to be a menopausal woman who admits to feeling occasional hot flashes, she has one point counted against her. These are not just my opinions. The MMPI and its progeny MMPI-2 and MMPI-A, are among the most commonly used personality inventories. Dr. James N. Butcher served on the MMPI Revision Committee and was the first author of the MMPI-2 in 1989. He has published 25 books specifically on the MMPI and MMPI-2 and 175 peer reviewed articles on MMPI/MMPI-2 or MMPI-A. He also developed the software to score the MMPI-2. Dr. Butcher has written that the FBS is scientifically unreliable because it does not accurately and reliably discriminate individuals with genuine physical or mental health problems from those who are malingering mental health symptoms. Dr. Butcher and others published the results of a study of patients in mental health facilities (i.e., patients with legitimate mental health problems) who scored high on the FBS, as if they were fakers. The flaw with the FBS is that these patients score high on the test by honestly describing their actual symptoms. Another flaw in the FBS, according to Dr. Butcher, is that it is gender biased against women. In fact, Dr. Butcher showed that administering the FBS test randomly to a group of women and a group of convicted felons resulted in the women scoring as malingerers at a rate of more than 10 times that of the convicted felons. There is no place in the courtroom for this junk science.