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Holding a human
brain in your
two hands
triggers odd
thoughts. So does reading
the
Wall Street
Journal,
though I'm not
suggesting the
two experiences
are exactly
equivalent.
My close
encounter with a
thought organ
took place on
the last day of
an excellent
four Saturday
UCLA Extension
class: Gross
Anatomy:
The Fundamentals
Litigators Need
to Know.
The course was
the brainchild
of CAALA Board
of Governors
member Steve
Goldberg and
UCLA Professor
David A. Hovda,
Ph.D. If
it's offered
again in the
future, I highly
recommend you
attend.
Briefly,
UCLA/Goldberg/Hovda
put together a
science-based
program designed
to teach 26
enrolled
attorneys human
anatomy from top
to bottom. The course
materials
closely track
the basic human
anatomy class
every first year
medical student
must pass.
Dr. Hovda
assured me that,
as a graduate of
the program I am
now entitled to
wear a UCLA
Medical School
sweatshirt and,
I guess, root
against USC.
We're talking
detailed
lectures,
introductions to
everything from
functional MRIs
and PET scans to
cutting edge
orthopedic
surgery,
followed by four
afternoons in
the laboratory
dissecting human
cadavers.
Lawyers studying
real science to
improve their
courtroom
advocacy is a
good thing.
Especially since
it goes directly
against the
stereotype that
plaintiff
attorneys care
more about junk
science than
scientific fact
when they bring
a case in court.
On the other
side of the
spectrum was a
Journal
article that
caught my eye. I found it on
the front page
just after my
UCLA
brain-holding
experience,
which is
probably why I
took such strong
notice
"Malingerer
Test Roils
Personal-Injury
Law" blared the
March 5
headline. The subtitle
offered a bit
more
explanation,
adding: "'Fake
Bad Scale' Bars
Real Victims,
Its Critics
Contend." "Great," I
remember
thinking. "What kind of
junk have they
come up with
now?"
I found the news
story both
enlightening and
disturbing. Enlightening,
because I've
always found
traumatic brain
injury cases to
be among the
most challenging
and interesting
matters a trial
lawyer can
handle. Disturbing
because the
Journal
described a
controversy
surrounding the
oddly named
"Fake Bad Scale"
validity (read
"malingering")
test that was
recently made an
official subset
of the Minnesota
Multiphasic
Personality
Inventory, aka
the MMPI.
The MMPI, just
in case you
aren't familiar
with it, is a
psychological
assessment test
that has been
around since the
early 1940's and
is frequently
used to evaluate
personal injury
victims,
particularly
those alleging
mild traumatic
brain injury.
Even though the
story talked
about the MMPI,
I think the
reporter meant
the MMPI-II,
since that's the
restandardized
version of the
original test
and is the
version most
widely in use. Anyway, it
didn't really
matter, since
the point of the
story was, a
widely used test
has been
compromised by
an apparent junk
scientific
validity scale
designed to wash
out deserving
brain injury
victims.
As the
Journal
explained:
In two Florida
court cases last
year, state
judges, before
allowing the
[Fake Bad Scale]
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, James
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." . . .
Paul Lees-Haley,
the psychologist
who created the
test, says 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." . .
.
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.
In one episode
mentioned in the
article:
The experts'
disagreement
spilled over
into the
courtroom in a
case brought
against a
Florida gasoline
carrier,
Strawberry
Petroleum Inc.
Lloyd Davidson
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.
Davidson 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.
Davidson had
suffered a
permanent injury
from the crash
and awarded him
$1.4 million
from the
gasoline
carrier.
Okay, so what
does all this
add up to?
I think the
answer is
simple.
There's no
shortage of
quackery for
hire that is
ready, willing
and able to use
pretend science
against our
clients in the
courtroom.
Our best defense
is to keep
educating
ourselves and
improving our
knowledge skills
so that we can
face trickery
head-on and
expose it
effectively when
it shows up on
the defense side
of our cases.
Hence the
importance of
programs like
what Steve
Goldberg and Dr.
Hovda put on at
UCLA, or even
just keeping up
on changes in
medical
technology, like
the abuse of the
Fake Bad Scale.
The better
educated we
become, the
better we can
serve our
clients and win
the favor of
Lady Justice.
In the old days,
maybe hitting a
couple of
seminars on tort
law and getting
your minimum
MCLE was enough. I don't think
that's the case
any longer.
We need to find
more ways to
keep our skills
at and beyond
the state of the
art.
That's one of
the thoughts
that went
through my brain
while I was
holding someone
else's in my
cupped hands. Another was a
quiet prayer for
a generous soul
who made the
most personal of
gifts to help
further human
knowledge.
Sometimes you
can't help but
be humbled in
our profession.
See you next
month.
35 Advocate 18
(April 2008)
LEARNING
CENTER
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