Frye v. U.S. for the reasons set forth fully herein and highlighted as follows:

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1 I. Motion in Limine regarding Fake Bad Scale: II. INTRODUCTION The Fake Bad Scale (FBS) is unreliable and does not pass the standards set forth in Frye v. U.S. for the reasons set forth fully herein and highlighted as follows: 1) In a recent article, the Fake Bad Scale (now known as the SVT or symptom validity Scale) has the accuracy of predicting malingering of only 50% when dealing with males. This means it is wrong FIFTY PERCENT OF THE TIME. Flipping a coin has the same accuracy. ( See exhibit Autopsy on the Fake Bad Scale.) 2) This FBS has been rejected by courts in Hillsborough County for failing to meet the Frye standards. (Vandergracht v Progressive, Case # ; Davidson v. Strawberry Petroleum, Case #, infra. p.7); Williams v CSX, Case No 04-CA on 9/l9/07 finding The court concludes that the FBS is very subjective and dependant n the interpretation of the person using or interpreting it., Stith v Williams and State Farm Mutual Automobile Insurance, Case No 2003 CA AG, 8/28/08 which found the evidence presented at the hearing supports the conclusion that the FBS is not an objective measurement of malingering, exaggerating or over reporting of symptoms. Limbaugh-Kirker v Dicosta, Case No 06-CA 00076, wherein the court found that the FBS will not assist the jury in understanding the evidence and Anderson v E&S International Enterprises, Inc, et al, Case No. RG on 7/29/08. 3) The FBS is unreliable and therefore unscientific because there is no uniform agreement as to the appropriate cut-off score to be used 4) The FBS has not been proven to be reliable or scientific because it has not been subjected to independent review by the Buros Mental Measurement Test Evaluation System 5) The FBS is unreliable because it scores points towards malingering or exaggerating when a patient acknowledges true symptoms of physical injury or psychological distress, 6) The FBS is highly controversial with no general acceptance reached among the authors of the MMPI-2, the American Psychological Association, or the practicing

2 neuropsychologists who utilize validity tests deposition. see letters attached to Dr. Smith s II. LEGAL FRAMEWORK In Flanagan v. State, 625 So. 2d 827 (Fla. 1993), the Florida Supreme Court considered Florida Evidence Rule , and held that novel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F (D.C. Cir. 1923). In adopting the Frye test of admissibility the Court expressly rejected the Daubert test adopted by the United States Supreme Court which discussed and applied the then analogous Federal Rule of Evidence, The Daubert test is generally considered to be a more lenient evidentiary standard 2. Under Frye, in order to introduce expert testimony deduced from a scientific principle or discovery, such principle or discovery must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Berry v. CSX Transportation, 709 So. 2d 552 (Fla. 1 st DCA 1998) at 13, Flanagan, 625 So. 2d at 828, citing Frye, 293 F The Frye test is designed to ensure that a jury will not be misled by experimental scientific methods which may ultimately prove to be unsound (Id.). See Stokes v. State, 548 So. 2d 188 (Fla. 1989) at wherein the Court explained its rationale for continuing the application of the Frye test. The underlying theory for this rule [Frye] is that a courtroom is not a laboratory, and as such it is not 1 Effective December 1, 2000, Rule 702 was amended to incorporate the U.S. Supreme Court s decisions regarding the dictates of Daubert and is now consistent with the federal district court s gatekeeping function as mandated by the U.S. Supreme Court. Accordingly, Rule 702 is no longer analogus to Florida Rule of Evidence ' But see 1 st DCA s note in Berry at 570 FN 16: It is yet a matter of debate whether the Daubert test, in requiring that the reasoning or methodology underlying the testimony to be scientifically valid, will be more liberal and allow more expert testimony than the Frye requirement that there be general acceptance of the underlying methodology. Nevertheless, in the view of this writer the Daubert rule is the more enlightened rule which requires the JCC to determine the scientific validity of novel evidence. The Frye rule as it is being interpreted by the courts may allow unproven and scientifically invalid theories to support opinions of experts.

3 the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use. Thus the general acceptance test is still applied to scientific evidence in Florida as espoused decades earlier in Frye. First, it should be noted that the burden is on the proponent of the evidence to establish by a preponderance of the evidence, the general acceptance of both the underlying scientific evidence and methodology. See Murray v. State, 692 So. 2d 157, 164 (Fla. 1997); Brim v. State, 695 So. 2d 268, 272 (Fla.1997); U.S. Sugar v Henson, 787 So. 2d 3, 14 (1 st D.C.A. 2001). In order to gain admissibility general acceptance must be established by a clear majority of the members of that community." General acceptance under the Frye test is not a question of mere numbers but is instead a fundamental inquiry into the reliability of the testing. U.S. Sugar v Henson, 787 So. 2d at 12. The Supreme Court has established a four-step process for applying Frye: First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. Second, the trial judge must decide whether the expert s testimony is based on a scientific principle or discovery that is sufficiently established to have gained general acceptance in the particular field in which it belongs. [Frye]; the third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue; fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert s opinion, which it may either accept or reject. Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995).

4 In this case, there is no evidence that the fake bad scale will assist the jury in understanding the evidence or in determining a fact in issue. What is far more likely is that the jury will become embroiled in the significant confusion and controversy surrounding the test. A test like the Fake Bad Scale with no established cut-off scores, no printed administration manual and no scoring manual can provide little guidance as to the meaning of the results. The court noted that the second step of this process embodies the Frye test, and observed that the principle inquiry under the Frye test is whether the scientific theory or discovery from which an expert derives an opinion is reliable. Id. at It stated that in utilizing the test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand, that the trial judge has the sole responsibility to determine this question, and that general acceptance under the Frye test must be established by a preponderance of the evidence. Id. at In applying this four-step process, the Judge will be required to evaluate both the quality and quantity of the literature and other evidence supporting the principle or technique. Brim v. State, 695 So. 2d 268, 272 (Fla.1997); U.S. Sugar v Henson, 787 So. 2d at 12. II. FINDINGS OF FACT Why the Fake Bad Scale (hereinafter FBS ) fails Frye standards: A. As Applied: The Fake Bad Scale as applied in the present case is unreliable because it is biased and over predicts malingering, those with true psychiatric problems and those with complex or disabling medical issues. It is clear from a review of defense expert Harold Smith s deposition testimony that he intends to the Fake Bad Scale to conclude to a jury that she is a malingerer and exaggerates her symptoms. Concern was also expressed by Dr. Arnie Abels, Ph.D., Chair of the Committee on Disability Issues in Psychology wherein, he indicated

5 1. Given these, and other problems noted by Dr. Butcher, it seems that use of the FBS has significant potential to negatively impact persons with disabilities. (emphasis supplied) 2. We strongly believe that the FBS has been prematurely disseminated into practice while still lacking evidence of adequate psychometric properties and interpretive guidelines. 3. The potential of the FBS to over-predict malingering in persons with disabilities may result in their being denied necessary and due compensation benefits or treatment. 4. In addition, the current lack of quality and consistency of available FBS related validity research may result in obvious legal and ethical dilemma. 5. There is significant evidence that literature aiming to provide interpretive guidelines for the FBS may take an overly positive view regarding its use. We are disappointed that the University of Minnesota Press chose to introduce the FBS scale against the recommendation of the MMPI2 scholars such as Dr. Butcher. Defense made no effort to justify this application of the Fake Bad Scale in light of disability bias which has remained at the heart of the controversy. What is apparent from the testimony and the articles considered by the court is as follows: 1. The Fake Bad Scale pulls physical and psychiatric symptoms that legitimate patients would endorse, and instead ascribes points towards malingering. (James N. Butcher, Paul A Arbisi, Mera Altis, John McNulty, The construct validity of the Lees-Haley Fake Bad Scale, Does this scale measure somatic malingering and feigned emotional distress?, Archives of Clinical Nueropsychology, 18 (2003) ; 2. The Fake Bad Scale has a gender bias that is more likely to score women as malingering than men. (James N. Butcher, Paul A Arbisi, Mera Altis, John McNulty, The construct validity of the Lees-Haley Fake Bad Scale, Does this scale measure somatic malingering and feigned emotional distress?, Archives of

6 Clinical Nueropsychology, 18 (2003) ; Bates # ). (Butcher testimony, p. 109, l. 2 to p. 110, l. 13). 3. The Fake Bad Scale credits points toward malingering for valid responses endorsing symptoms of injury, depression, medication and even aging. (James N. Butcher, Paul A Arbisi, Mera Altis, John McNulty, The construct validity of the Lees-Haley Fake Bad Scale, Does this scale measure somatic malingering and feigned emotional distress?, Archives of Clinical Nueropsychology, 18 (2003) 4. When Dr. Lees-Haley first created the Fake Bad Scale in 1991, he decided if a person endorsed 20 or more items he or she was malingering. (Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, , , (Bates# , 153). 5. Then, in l992 Dr. Lees-Haley created new cut off scores of 24 for men and, because of clear gender bias, he increased the number of questions a woman would need to endorse before being found a malingerer to greater than 26 for women (Paul Lees-Haley, Efficacy of MMPI-2 Validity Scales and MCMI-II Modifier Scales for Detecting Spurious P.T.S.D. claims: F, F-K, Fake Bad Scale, Ego Strength, Subtle Obvious Subscales DIS and DEB, (1992), Bates# , 153). B. The Fake Bad Scale is untested, unreliable and not generally accepted 1. The original research cannot be replicated. In 1991, Dr. Lees-Haley published an article introducing the Fake Bad Scale wherein he suggests the cut off score be 20, above which one can conclude malingering. (Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, , 2. Paul Lees-Haley fails to identify how he determined the malingerers in the first place but referenced it was how they appeared as well as those who were not malingering. Clear evidence of this is found in the original study wherein Dr. Lees- Haley admitted that he determined individuals to be malingering or credible based on how they appeared. (Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, , , 205, If

7 someone wanted to recreate his research and do the experiment again to see if we get the same results, we cannot. Why? Because there is no evidence, scientific or otherwise to demonstrate what Dr. Lees-Haley did to reach this conclusion. Dr. Lees-Haley used less than 200 patients, all coming from his own defense practice, rather than a larger and more varied normative sample. In dramatic contrast, Dr. Butcher applied the Fake Bad Scale to over 20,000 individuals. Dr. Lee-Haley s initial experiment is not scientific in that it cannot be replicated. 3. The subjective use of appearance to determine malingering is neither medically objective nor scientific. In the original article giving birth to the Fake Bad Scale, its author, Dr. Paul Lees-Haley, admitted he selected individuals whom appeared credible and whom appeared to be malingering and then alleges this supports the use of his test. Such a fundamental flaw in the methodology invalidates any results. 4. There is no way this experiment can be replicated since he sets forth no standards as to how he reached his conclusions in the first place. Furthermore, if he already knew how to determine if someone was malingering, why invent the Fake Bad Scale in the first place? 5. In spite of the complete lack of underlying science, the very name, FAKE BAD SCALE, suggests lying. This tremendous potential for harm cannot be undone once the mere name of the test is uttered. Even the acronym FBS presents little solution as an inquisitive juror could look this up at home and clearly be swayed by the underlying name. 6. The Florida Administrative Code, Title 65, SS 65B19-l8.004 (1) holds that The inappropriate use of test instruments is harmful to consumers. Section 65Bl (6) finds that test instruments are standardized procedures which purport to objectively measure personal characteristics (emphasis supplied). Such a complete lack of direction regarding the FBS and procedures violates the requirements of the Florida Administrative Code. 7. The use of the test further violates the American Psychological Association Code of Ethics. (supra., As Applied, #7) In order to apply a test to an individual, that individual needs to be fairly represented in the original sample group tested. This makes sense. If a study shows that 50 milligrams of Lexapro was an appropriate

8 dose for adult men to treat a condition, since infants would not have been in the normative sample making up that study, one would surely not administer the same dose to infants. The defense has provided no evidence that individuals the same approximate age, gender and with the same significant damage (traumatic brain damage, physical injuries resulting in chronic pain such as knee, neck and TMJ pain, and anxiety disorders such as PTSD) were in the original sample. Why is this important? Without this requisite scientific basis, there can be no basis for determining how individuals with all these problems would approach the questions on the Fake Bad Scale while still telling the truth. In other words, how do you determine how individuals with all of the plaintiff s problems, truthfully answer those questions, if there are no similar individuals in the original study group? This apples to oranges comparison strategy finds a basis in pure speculation, not established science. 8. Dr. Smith s use of the Fake Bad Scale is nothing more than profile testimony. (i.e. testimony that Plaintiff fits the profile of someone who is untruthful and exaggerating).. Hadden v. State, 690 So. 2d 573 (Fla. 1997), "profile testimony" inadmissible when offered to prove victim of sexual assault exhibits symptoms or profile of In short, the Fake Bad test is the modern day lie detector test which was originally excluded in Frye v. United States, 293 Fed (D.C. Cir. 1923). In Frye, a test for lying based on rising systolic blood pressure was inadmissible because the test lacked reliability and general acceptance in the relevant scientific community. Given the bias of the Fake Bad Scale toward women, the truly disabled and sufferers of genuine psychological conditions like Post Traumatic Stress Disorder and Depression, it would be like giving the systolic blood pressure test to high blood pressure sufferers and calling the testing victims liars. 10. This Fake Bad Test, as the name implies, seeks to judge the credibility of a witness which is the exclusive province of the jury. Davis v. State, 527 So. 2d 962, 963 (5 th D.C.A. 1988). Opinion testimony from experts which directly serves to bolster or detract from the credibility of a witness invades the province of a jury and should be excluded. Tingle v. State, 536 So. 2d 202 (Fla. 1988); Davis v. State, 527 So. 2d

9 962, 963 (5 th D.C.A. 1988); (error to admit opinion testimony of clinical psychologist); Fuller v. State, 540 So. 2d 182, (5 th D.C.A. 1988); (error to admit opinion testimony of medical director); Luszczyk v. Department of Human Services, 576 So. 2d 431 (5 th D.C.A. 1991); (error to admit psychologist and case worker testimony). 11. No witness is allowed to testify to another witness exaggeration or truthfulness. See e.g., Feller v. State, 637 So. 2d 911 (Fla. 1994) (reversible error for expert to state her belief that the victim was telling the truth); Shannon v. State, 753 So. 2d 148, (Fla. 3d DCA 2000) (same); Schwartz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997) (same); Hitchcock v. State, 636 So. 2d 572, 575 (Fla. 4th DCA 1994) (same); Williams v. State, 619 So. 2d 1044, 1046 (Fla. 1st DCA 1993) (same); and Sec , Florida Statutes (2002); See, e.g., Roules v. State, 613 So. 2d 1335, 1336 (Fla. 2d DCA 1993) (testimony impermissibility addresses and questions credibility of victim) (sexual abuse victim); Page v. Zordan, 564 So. 2d 500, 502 (Fla. 2d DCA 1990) (clinical psychologist barred from testifying that test showing "sexual abuse legitimacy scale" valid in evaluating report of sexually molested child). Florida Courts use the Frye test to determine the admissibility of novel scientific procedures including certain psychological or psychiatric opinion testimony. Stokes v. State, 548 So. 2d The Fake Bad Scale elicits legitimate responses to physical and psychiatric symptoms that genuine patients would endorse, and instead ascribes points towards malingering. It defies both science and common sense that a response to a test question can be both a valid report and an indication of exaggeration or malingering. a. The defense provided no rational explanation as to why this test needed to be used in this case. The potential for extreme harm far outweighs any benefit of the test. b. The test is useless because it does not tell us: 1. What answers she malingered or exaggerated; 2. Why symptoms she malingered or exaggerated; 3. Any specific factual indicia of exaggeration whatsoever; and

10 4. Whether she will exaggerate in the future. 13. It is difficult to place any probative value in a test that cannot reliably determine the existence of malingering or accurately measure the magnitude. Unable to provide any meaningful proof of the reliability of the Fake Bad Scale, Defendant is left with the statistical shell game attempting to show numerical support for general acceptance. 14. Defendant s own exhibit fails to provide the requisite clear evidence of general acceptance. The burden is upon the defense to show the significant relevant majority relies on this test. The fact that the test publisher (University of Minnesota Press) and the test distributor (Pearson Assessments) decided to include this scale on the MMPI-2 has no bearing on whether the scale is scientific or not. Such a decision may be based on commerce not science. 15. The testimony revealed that more tests the publisher scored, the more money it collected. There is an institutional bias which negates any input the test publisher might have towards potential credibility. See Sybers v. Florida, 84l So. 2d 532, 2003, which discusses the concerns of potential institutional bias, and the bias of witnesses who have a personal stake in the procedures. This institutional bias pervades the entire history of the Fake Bad Scale. Paul Lees-Haley (a renowned defense expert) creates an unscientific test known as the Fake Bad Scale It is no surprise that Dr. James Butcher, Phd, one of the actual creators of the MMPI2 published an article referring to this test as a test most commonly used by defense experts since it found so many to be malingering. The FBS is used mostly by defense oriented forensic psychologists because of the likelihood of finding malingering ). See exhibit 16. Therefore, when considering whether to rely on the fact that some (and it has not been clearly shown that most) doctors use the FBS, this still does not overcome the defense burden that the test or opinion itself be reliable and scientifically based. An analogy would be, for example, to take a poll of those doctors who perform operative procedures 200 years ago. The idea of washing hands and instruments before surgery was considered absurd. The majority of doctors who did not, were

11 very definitely a majority, however, they were also very clearly not scientific in their methodology. 17. Furthermore, the defense still has not proven the significant relevant majority of peers use the test. 18. The Fake Bad Scale is undoubtedly controversial. As the court has been made aware, the very creator of the MMPI-2 to which the defense seeks to apply the scale, Dr. James Butcher has published an article indicating it is unreliable and unscientific. (See Construct Validity article) Dr. Butcher pointed out, for example, if a patient answers True to one of the questions on the scale, he or she gets a point towards a finding of malingering based on the F scale contained within the MMPI-2. (Dr. Butcher Affidavit, Exhibit However, if they answer False to that same question, they get a point towards malingering on the Fake Bad Scale. A review of the affidavits produced by the plaintiff make the controversy relating to the reliability of the Fake Bad Scale clear. (Affidavits of, Dr. Afield, Dr. Butcher, Dr. Eastridge Dr. Salmansohn, Dr. Varney Webb,) Furthermore, the meta analysis heavily relied upon by the defense make it clear, there is a debate regarding the usefulness of the FBS within forensic settings... Nathaniel Nelson, Jerry Sweet and George Demakis, Meta Analysis of the MMPI-2 Fake Bad Scale: Utility in Forensic Practice, The Clinical Nueropsychologist 20: 39-58, 42 (2006). 19. When Dr. Butcher recently revised the Minnesota Report, the most widely used computerized interpretive system for the MMPI-2, which is also published by the University of Minnesota Press and distributed by Pearson Assessments, he did not include the FSB in his interpretive report because it was not considered scientifically sound enough to be included in something that would be used with patients. (Dr. Butcher testimony, p. 104, ll. 1-11). This is a further example of the lack of wide acceptance of the use of the FBS even within MMPI-2 publications by the test publisher and distributor. 20. At no point, is the individual applying the test able to reach a conclusion other than malingering, even when there are very real reasons why the patient answered the questions the way she did. IV. CONCLUSION

12 The Florida Supreme Court has adopted and followed the test established in Frye v. United States, 293 Fed (D.C. Cir. 1923) and requires that an expert s opinion which is based on a scientific principle, theory or methodology is admissible only when the underlying scientific principle, theory or methodology is generally accepted in the field in which it belongs. See Strokes v. State, 548 So. 2d 188 (Fla. 1989) and Flanagan v. State, supra. When there is an issue as to whether a scientific test or theory meets the Frye standard, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand; before the evidence may be admitted, the trial judge has the sole responsibility to determine whether the proponent has established the Frye foundation by a preponderance of the evidence. See Ramirez v. State, supra., at pages In making this determination, the Court is permitted to consider expert testimony, scientific and legal literature, and other judicial decisions and may take judicial notice. See Flanagan v. State, supra., at page 828 and Hayes v. State, 660 So. 2d 257 at page 264 (Fla. 1995). It is important to note that while unanimous scientific consensus is not required for a finding of general acceptance, merely counting a majority of the members of the relevant scientific community is not controlling either; in determining whether the underlying scientific principle, theory or methodology is sufficiently established as scientifically valid and generally accepted in the particular field to which it belongs, the Court must consider the quality of the evidence supporting or opposing the principle as well as the quantity. See Brim v. State, 695 So. 2d 268 (Fla. 1997). In Flanagan, the Florida Supreme Court answered a certified question, stating that an expert profiling an accused sex offender must meet the Frye standard and that such an opinion was not background information in that criminal trial. As the Court noted: While the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily relies some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principle underlying

13 the expert s conclusions are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. In the civil context, that is precisely what the Defendant is trying to do in this case. That is, profile the Plaintiff as being a malingerer based upon Dr. Smith s misuse of neuropsychological testing. Further concerns were expressed by the Fourth District in the case of Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986) in the context of Frye. In dealing with the testimony of a psychiatrist in the context of a sexual assault, the Court noted: Expert testimony in areas that are not sufficiently developed to support an expert opinion can present the kind of danger that Section was designed to prevent. While there is no requirement to demonstrate general acceptance, we believe that, without some ~ of reliability, opinion on a particular subject could hardly be helpful to a jury as required by In other words, as in this case, when the evidence sought to be admitted is prejudicial, the Court should be especially keen on establishing that such prejudicial information not only have a scientific backing with Frye, but is outweighed by probative value as required by Florida Evidence Code In the case of Brim v. State, 695 So. 2d 268 (Fla. 1997), the Florida Supreme Court, in a case involving DNA evidence, quoting Frye, noted: Somewhere in this twilight zone the evidential force of the principle must be recognized and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the

14 deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

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