Exageration of symptoms beats a threshold motion

Understanding the Burden of Proof in Symptom Exaggeration Claims

In New York’s no-fault insurance system, defendants often attempt to defeat personal injury threshold motions by claiming that plaintiffs are exaggerating their symptoms. However, as a recent appellate court decision demonstrates, simply making such accusations without proper medical foundation can backfire spectacularly.

The threshold requirement under Insurance Law Section 5102(d) requires plaintiffs to prove they sustained a “serious injury” to pursue a lawsuit beyond no-fault benefits. When defense medical experts examine plaintiffs and claim symptom exaggeration, courts require more than mere conclusory statements. The expert must provide objective medical evidence to support their findings, or risk having their testimony deemed insufficient.

This case illustrates how defendants can sink their own legal strategy when their medical experts make unsupported claims. Understanding what constitutes objective signs of continuing disability becomes crucial for both sides in these disputes.

Jason Tenenbaum’s Analysis:

Cheour v Pete & Sals Harborview Transp., Inc., 2010 NY Slip Op 06614 (2d Dept. 2010)

“While Dr. Farkas stated that the plaintiff presented with “extreme exaggeration of symptoms” and that the decreased ranges of motion noted by him were “not true pathologic findings” and were instead exaggerated subjective complaints, he failed to explain or substantiate those conclusions with any objective medical evidence”

An expert must explain or substantiate a claim that an examinee is lying, otherwise “no dice”.

Legal Significance: Expert Testimony Standards for Symptom Exaggeration Claims

The Cheour decision establishes critical evidentiary standards governing how defense medical experts can challenge plaintiff symptom claims through exaggeration allegations. While physicians conducting independent medical examinations may observe behavior suggesting non-organic findings or inconsistent effort during testing, courts require more than mere assertions that symptoms are exaggerated. Experts must provide objective medical foundations explaining why specific examination findings indicate feigning rather than genuine pathology.

This requirement reflects fundamental principles governing expert testimony admissibility and weight. Expert opinions must be based on objective data, accepted medical principles, or specialized knowledge beyond lay comprehension. Conclusory statements that a patient is “exaggerating” or “malingering” without explaining what objective clinical signs support those conclusions fail to meet these standards. Such bare assertions amount to subjective impressions rather than expert medical opinions grounded in scientific methodology.

The decision illustrates how defense experts can inadvertently undermine their own testimony through inadequate explanation. Dr. Farkas observed decreased range of motion during examination—a finding that typically supports plaintiff injury claims. By characterizing these findings as “not true pathologic findings” and attributing them to exaggeration, he attempted to neutralize evidence that would otherwise favor the plaintiff. However, without explaining what clinical signs distinguished voluntary limitation from pathologic restriction, his opinion lacked the foundation necessary to carry weight.

Courts applying this standard protect plaintiffs from speculation disguised as expert opinion. Medical experts cannot simply declare that findings are false or exaggerated because they believe the patient is malingering. Instead, they must identify specific objective inconsistencies—such as discrepancies between observed function during examination versus surveillance footage, anatomically impossible symptom patterns, positive Waddell signs, or findings inconsistent with diagnostic imaging results—and explain why these objective signs indicate symptom magnification rather than genuine injury.

Practical Implications: Defending Against and Prosecuting Symptom Exaggeration Claims

For defense counsel, this decision provides clear guidance on preparing effective IME reports when symptom exaggeration is suspected. Defense medical experts should be instructed to document specific objective clinical findings supporting exaggeration conclusions. These may include: observing patients performing activities during examination that they claimed inability to perform; noting discrepancies between formal examination findings and incidental observations of movement; identifying anatomically implausible symptom distributions; documenting give-way weakness or other non-anatomic findings; or citing surveillance evidence contradicting claimed limitations.

Experts should also explain the medical reasoning connecting observed findings to exaggeration conclusions. For example, an expert might explain that true radiculopathy produces symptoms following specific dermatomal patterns, whereas the patient’s described symptoms cross multiple unrelated dermatomes in anatomically impossible ways, suggesting fabrication. Or an expert might note that objective diagnostic studies show no structural pathology capable of producing claimed severity of symptoms, and that degree of functional limitation claimed exceeds what would be expected from documented injuries.

For plaintiff’s counsel, this decision provides ammunition for challenging weak exaggeration opinions in opposition papers and at trial. When defense IME reports contain conclusory exaggeration claims without objective support, plaintiffs should highlight this deficiency in motion opposition and cross-examination. Specific challenges might include: demanding that experts identify what objective clinical tests they performed to assess malingering; asking experts to explain what medical literature supports their exaggeration conclusions; requiring experts to distinguish their findings from those documented by treating physicians; or comparing experts’ examination techniques to validated protocols for detecting symptom magnification.

Plaintiffs should also prepare treating physicians to rebut exaggeration claims by documenting objective clinical findings, diagnostic test results, and treatment responses supporting symptom legitimacy. When treating physicians observe patients over extended periods and document consistent symptom reports correlating with objective findings and treatment responses, this longitudinal data provides powerful rebuttal to one-time IME opinions suggesting exaggeration.

Finally, both sides should recognize that symptom exaggeration issues typically create factual disputes precluding summary judgment. Unless defense evidence objectively proves malingering beyond reasonable dispute, courts will find triable issues requiring jury resolution. Defendants should therefore view exaggeration defenses as tools for settlement leverage and trial strategies rather than summary judgment vehicles, absent truly compelling objective evidence of fabrication.

Key Takeaway

Defense medical experts cannot simply declare that a plaintiff is exaggerating symptoms without providing objective medical evidence to support their conclusions. Courts require substantiation beyond mere opinion, and failure to provide such evidence can result in the expert’s testimony being given little weight, potentially defeating the defendant’s threshold motion.

Legal Update (February 2026): Since this 2010 post, New York’s Insurance Law Section 5102(d) serious injury threshold standards and related appellate interpretations may have evolved through subsequent court decisions and regulatory amendments. Practitioners should verify current case law regarding the evidentiary standards for proving symptom exaggeration and the admissibility requirements for defense medical expert testimony in threshold motions.

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