Backgrounding Expert Witnesses

In preparing for an upcoming trial, it is crucial to know the background of any expert witness you are going to cross-examine. Reviewing their previous work and past statements will provide insight into any biases they may possess, and give you the foresight necessary for a stronger case. Following is an example.

Paul Lees-Haley and the Fake Bad Scale

In 1991, psychologist Paul R. Lees-Haley published a study on the Fake Bad Scale, a psychological assessment Lees-Haley claims can be used to detect “malingering” in personal injury claims and workers’ compensation cases. According to his definition:

  • “Malingering is the deliberate simulation or exaggeration of an illness or disability…to avoid an unpleasant situation or to obtain some type of personal gain. In the personal-injury context, malingering is pretending to be more distressed, more impaired, or more disabled than one is.” (Lees-Haley P. R., English L.T., & Glenn W. J. “A Fake Bad Scale on the MMPI-2 for Personal Injury Claimants.” Psychological Reports, Vol. 68, 1991, pp. 203, 208)

The Fake Bad Scale identifies “malingerers” based on their score calculated from responses to 43 true or false questions about somatic and psychological symptoms. Since Lees-Haley published his findings, the FBS has been incorporated into the Minnesota Multiphasic Personality Inventory and multiple studies have been done to test the Fake Bad Scale’s effectiveness. While some reports support Lees-Haley claims, others have been critical and have started a debate as to whether the Fake Bad Scale labels too many injured people as malingerers. (Associated Press, “Malingerer Test Roils Personal-Injury Law,” March 5, 2008)

In determining the validity of such a test, it is important to look at the author’s background and any biases inherent in his personal interests.

Paul Lees-Haley Potentially Biased to Create a Malingering Test that Favors the Defense

Lees-Haley earned his Ph.D. from the University of Tennessee in 1978 and practiced in Alabama until he moved to Southern California in the 1980s. Early in his career specializing in trauma evaluation, Lees-Haley worked with plaintiffs. However, for the past 20 years, approximately 95% of his court involvement has been for the defense. His practice is highly reliant on defense referrals, and he does not treat patients. He evaluates claimants for $3,500 and $600/hour for depositions and court appearances; his fees for a single case when it comes to trial can be in excess of $25,000. After working with personal injury cases, Lees-Haley addressed the need for a psychological assessment with the Fake Bad Scale (FBS) in 1991. Since then, he has done further studies to develop the FBS, amongst other research generally related to employment issues. (Business Insurance, Depression Claim: Fact or Fiction,” May 7, 1990; New Jersey Lawyer, “Biased? Call it Malingering,” April 11, 2005)

In response to criticisms that the FBS over-diagnoses malingering, Lees-Haley admitted that individual questions “can be made to seem like evidence for a flawed” result, but maintains that it is the total score that is important and that the FBS has “been tested empirically and shown to be effective.” (Associated Press, “Malingerer Test Roils Personal-Injury Law,” March 5, 2008)

Since Lees-Haley published his first study about the FBS in 1991, a large volume of scientific follow-up research has been done to test its validity and compare it with other malingering scales. These highly technical studies intended for experts in the field generally administer the FBS and any other indices to various sample populations and process the data to gauge the effectiveness of the FBS. For the most part, the FBS received positive feedback in the reports.

However, Opposition from Psychologists and the Legal Field Persists

Despite literature validating the relative efficacy of the FBS, contemporaries of Lees-Haley and the American Psychological Association (APA) remain skeptical. According to Dr. James Butcher, a retired University of Minnesota psychologist, the FBS labels too many people as malingerers. After conducting a study in 2003, Butcher concluded:

  • “Virtually everyone is a malingerer according to this scale. This is great for insurance companies, but not great for people.” (Associated Press, “Malingerer Test Roils Personal-Injury Law,” March 5, 2008)

Based on the high incidence of accused malingerers, many plaintiffs’ attorneys have begun to publicly question the motives behind the FBS. Dorothy Clay Sims is a Florida lawyer with Sims & Stakenborg, P.A. who opposes the reliance on the FBS in litigation of disability claims. She has written guides for plaintiffs’ lawyers with ways to challenge the FBS in court and is working to reverse the decision that made the FBS part of the MMPI-2. (Associated Press, “Malingerer Test Roils Personal-Injury Law,” March 5, 2008)

Sims’ practice concentrates on the direct and cross-examination of doctors that are hired by the defense in personal injury and workers’ compensation claims. In a recent deposition with Lees-Haley, he admitted that his practice is reliant on defense referrals as he does not treat patients. As a doctor who evaluates claimants solely for the defense, there was a strong potential that Lees-Haley had researcher bias in creating the FBS. Sims pointed this out:

  • “[It] has long been a serious problem (over-reporting and/or withholding responses). In fact, recent research reveals concealment occurs in data reporting in a majority of the cases. Where in the articles on malingering is it revealed if the author receives the significant bulk of his or her income from the defense who serves to benefit from the article? So, if one describes malingering as an individual modifying his or her behavior for external gain, does not the potential for that very problem exist with the doctor him/herself?” (New Jersey Lawyer, “Biased? Call it Malingering,” April 11, 2005)

Through her extensive work with doctors using the FBS to testify, Sims has published a book, Exposing Deceptive Defense Doctors, for plaintiffs’ attorneys on how to cross-examine doctors who are suspiciously purporting malingering. Read some of her suggestions here before the book is published in March 2009.