A Sensitive Accusation

Malingering in brain injury cases easy to claim, difficult to prove

To suggest that a plaintiff is exaggerating his or her ailments in a personal injury case — or even feigning them entirely — is perhaps one of the riskiest arguments a defendant can raise. But PI attorneys who practice on either side have to deal with the specter of malingering, whether they’re putting forth evidence of malingering or countering it.

Malingering, according to the Diagnostic and Statistical Manual of Mental Disorders, is the intentional production of false or grossly exaggerated physical or psychological problems. The DSM-V notes that people who malinger usually do so for external incentives, such as avoiding work or military duty or for financial gain.

For reasons one might imagine, neuropsychologists find malingering to be more prevalent when litigation is involved.

A 2002 survey in the Journal of Clinical and Experimental Neuropsychology reported that 29 percent of personal injury claims showed signs pointing toward malingering, compared to 8 percent of medical cases not tied to litigation. For mild head injury claims, 39 percent “resulted in diagnostic impressions of probable malingering.” Neuropsychologists who identified cases with probable malingering came by their diagnoses using on evidence that the patient’s cognitive impairment was inconsistent with their condition, their performance on diagnostic tests, and discrepancies among medical records, in addition to other sources.

But malingering, especially in brain injury cases, can be difficult to diagnose and likewise difficult to argue in court. But it happens, according to Larry Cohen, a Vermont-based consultant for personal injury litigation whose 30-plus years of legal practice has had a focus on brain injury claims.

“Point number one is people malinger,” Cohen said. In his Jan. 8 seminar at the CBA CLE, “Malingering: Both Sides,” Cohen discussed the ways malingering can manifest in brain injury cases as well as how attorneys can either present or challenge a malingering argument.

There’s intense debate as to how prevalent malingering actually is in litigation. Estimates vary, and Cohen has seen figures as high as 40 percent for malingering in personal injury cases. “I think that is a gross exaggeration based on my experience, and I as a lawyer have represented up into the thousands of clients over my 34 years of practice,” he said. “And I’ve seen malingering but certainly not to the level of 40 percent.”

Red flags for malingering include an inconsistency between the symptoms the plaintiff says he or she has and what the plaintiff outwardly exhibits. That’s sometimes enough to start defense counsel down the path of making a malingering argument.

“What triggers the thought that there may be some malingering is when the symptoms don’t match the [plaintiff’s] everyday activity or the everyday complaints,” said Jack Trigg, counsel emeritus for Denver litigation firm Wheeler Trigg O’Donnell, in a Law Week interview. Trigg has defended brain injury claims including a case against a commercial insurer in a class action involving the NCAA, NHL and U.S. Soccer Federation.

“In a brain injury case, many times when you’re looking at the facts of the accident, you scratch your head and say, Well how would that [injury] happen?” Trigg said. Attorneys, investigators and neuropsychologists ask whether the plaintiff’s activities, or lack thereof, fit with the symptoms they claim to be suffering. If they don’t, “immediately your antenna goes up,” he added. “You look into the case, you might see them doing various activities they claim they can’t do.”

Addressing a malingering argument can be part and parcel to representing personal injury plaintiffs. The possibility that the defense will raise a malingering argument in a brain injury claim “is everpresent in every case,” Tom Metier, a personal injury plaintiffs’ attorney and senior managing partner of the Metier Law Firm, told Law Week.

“Oftentimes malingering is the last resort of defense attorneys and defendants to reduce the effects of the injuries they’ve caused as far as a settlement or a verdict is concerned,” Metier added.

For all their prevalence in personal injury litigation, malingering accusations aren’t objectively provable. “Short of a confession that the person is malingering, there is no means currently available to determine objectively if the person truly is malingering,” Cohen said. The best a defendant can do is convince a jury or judge to infer that the plaintiff is malingering. That’s often done by presenting test results and expert testimony that call their actual symptoms into question.

There are many reasons why a plaintiff might malinger, including those who have legitimate symptoms from a brain injury. “Malingering is not a single construct,” Cohen said. “Malingering is really more of a continuum.” Some people who exaggerate their symptoms aren’t doing it for what one might call secondary gain, he added.

“I’ve worked on many cases with clients who have not made their best effort [to perform a task] or have exaggerated their symptoms primarily because they’re concerned that no one’s listening,” Cohen said. “Not that they don’t have a condition, but they’re trying to demonstrate that they do have it, [and] in the process, create the appearance of fabricating what’s going on.”

“Malingering in a brain injury case is an easy accusation to make and very hard to prove,” Metier said.

Metier said brain injury cases often give a false appearance of malingering because the general public doesn’t understand how these injuries manifest. Those injuries can engender fatigue or depressed motivation to perform basic activities like going to work, he said. “It’s not a question of whether they want to be active or productive. It’s whether their brain will permit them to be active or productive.” The brain injury plaintiff may want to go to work but can’t effectively organize in his mind or plan the steps to do it, he explained.

Raising the specter of malingering is inevitably calling the person’s credibility into question, Cohen noted, which makes it tricky to use expert testimony to put forth the argument. “As a general proposition, one witness cannot comment on the credibility or integrity of another witness,” he said.

Plaintiff’s counsel are often ready to counter to viability of test results that suggest their client is exaggerating their deficiencies.

“There are severe limits on the ability of a neuropsychological test to detect malingering,” Metier said. For example, fatigue can skew the results unless a neuropsychologist takes it into account. A plaintiff will naturally underperform or inconsistently perform in a diagnostic test session that lasts several hours, Metier said, and that shouldn’t be considered evidence of malingering. 

Metier said it’s important for plaintiffs’ counsel to file motions in limine that force the defense to come forward with evidence of malingering, which the judge might declare inadmissible.

When raising a malingering argument, the defense must be very careful and subtle, Trigg said. As he puts it, it’s a matter of laying out the facts — such as the plaintiff’s claimed symptoms versus their actual activity — in a way that will lead the jury to draw a conclusion that the plaintiff is misrepresenting his or herself. A direct accusation is hazardous.

“I’ve tried a lot of cases, and I’ve never called a plaintiff a liar,” Trigg said. 

Defense counsel might make a suggestion of malingering during closing arguments, or plant a seed during opening arguments making a reference to evidence they’ll see. “You’ve got to walk gingerly,” Trigg said. 

— Doug Chartier

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