“The Fake Bad Test,” a Questionable New Test in Accident Cases


The insurance industry has cooked-up a new, controversial test designed to spot people faking or exaggerating pain.  Believe it or not, the test is a called the Fake Bad Scale (FBS) Test.

Supposedly a score of 43 or higher on true or false questions will peg a client as someone faking an injury or pain.  “Red flags” start to go up when the person registers a score over 23.

The proponents of the test claim that it can objectively show when a person is either faking or exaggerating an injury.  It has been endorsed by a the prestigious the publishers of the Minnesota Multiphasic Inventory, a widely used psychological test.  Advocates of the test say that it is one tool of many that a psychologist or psychiatrist can use to determine malingering.

It is unclear whether this test will be admissible in all courts.  Some courts have refused this evidence.  Other courts have allowed it.  In cases where the court admits the test, it will be up to the jury as to weight, if any, that it will give to the test.  Some plaintiffs’ attorneys are refusing to allow their clients to take the test.

I personally question the usefulness of the test.  Generally, defendant’s physician, such as an orthopedist or a neurologist, will testify that the injured person has no objective symptoms of injury.  Hence, any complaints are either phony or exagerated, and the injured client can return to normal functioning.  In my experience the jury will accept a physician’s opinion that the claims or injury are exaggerated where the doctor testifies that he found no permanent injury.  A jury will accept the physician’s opinion even where he is not a psychologist or psychiatrist.  Defense medical experts have been opining for years that injured plaintiffs are either liars or exaggerators.  This questionable, new test adds nothing new to the defense arsensal.

   

Mark E. Seitelman, 7/29/08, www.seitelman.com

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