When our firm handles personal injury lawsuits for people hurt in car accidents, it always amazes me, how low the insurance defense lawyers and their hired gun doctors will go to prevent the victim from getting fair compensation. One recent example of this is a psychological test, the so-called “MMPI fake bad scale”, which is often used by the doctors hired by the insurance companies to defend these cases. The doctors for insurers State Farm, Geico and AllState use this trick to say that someone is faking or exaggerating their pain symptoms even though the national organization, the American Psychological Association, indicates that this test should not be used because it is not scientific. The basic idea is that the doctor hired by the defense lawyer, and paid by the insurance company, will come in and say based upon some answers to test questions to the plaintiff in the case that they must be malingering or lying. In this way, the insurance companies hope that the jury will simply go with the hired gun doctor’s assessment as conformation as the natural suspiciousness which jurors often show toward people hurt in car wrecks these days.
The problem is that the “scale” is junk science. The test will make a person who in fact has chronic pain from the injuries suffered in the accident sound like they are exaggerating them. The test also punishes people who don’t think most folks are liars, like religious people who believe in the basic goodness of humanity. In this warped world view, the person injured in a car wreck can never win. The doctor hired by the insurance company knows he/she is going to end up saying that, the victim of the other driver’s recklessness isn’t really hurt and is lying because that is what he has been hired to say. It’s hard for a jury to see behind this apparent “test.”
Most plaintiffs’ lawyers like myself, meaning lawyers who only represent injured people and never the insurance company, are trying to fight back against this unfair and biased test. One way is to try to get the judge to prevent the doctor for the defense from even being allowed to testify about it because it’s so unscientific. It is less reliable than a lie detector test which is not admissible because it is not reliable. However, sometimes the better approach may be to let the defense come in and try to show that the test itself is not valid and is substantially disagreed with by other experts in the field.
This “fake bad scale” is just the latest in the kinds of dirty tricks that insurance companies use to fight even meritorious cases. I as an attorney for families of people hurt in car accidents know that this is just a game that they play. Sometimes I fear that I will not be able to adequately convince the jury of that. The jury may hear from two doctors, one who treated the patient for the injuries from the crash and another who pretends to be independent, although they are really hand picked for their anti-plaintiff bias by the insurance company defending the case. Even though I know that this is junk science, I have to convince the jury of it in order to get a good result for the family that I am helping at trial. I try to combat this kind of testimony used by lawyers, for the at-fault driver by preparing with my experts on behalf of the plaintiff to show the lack of validity of the test and the opinions of the defense doctor. I also try to bring in family members, friends, neighbors and co-workers to testify as lay people about the real affect the injury has had on my client’s life.