March 5, 2008

Tort reform is often accused of slanting the field against plaintiffs when, in fact, many reforms are facially neutral and simply improve the accuracy of the justice system—which should only concern plaintiffs to the extent they wish for the justice system to be inaccurate. While the organized plaintiffs' bar is fighting hard against Daubert-style standards that act as a gatekeeper for scientifically unsound evidence, others recognize that it could require defendants to meet sound science standards. The Wall Street Journal covers one set of cases involving the "Fake Bad Scale," a 43-question true-false exam that purports to measure the likelihood that a plaintiff claiming injury is malingering. A Florida judge ruled that the test failed to meet expert evidentiary standards and excluded its use in a trial over injuries stemming from a 2004 trucking accident. (The psychologist who created the test, Paul Lees-Haley, stands by its validity, and there does seem to be at least some peer-reviewed literature supporting him. Lees-Haley argues that plaintiffs fake injury far more often than one would think.)