(1) Did Dr. Bail’s testimony indicate lack of impartiality?
 I have had the opportunity to consider in detail Dr. Bail’s
evidence and I concur with the trial judge that it is most troubling. For present purposes, it is unnecessary to recount his
testimony in full. Instead, I will focus on some of the more concerning aspects of his testimony.
 First, I repeat my concern regarding his methodology.
It was fundamentally unfair to Ms. Bruff-McArthur not to give
her an opportunity to explain the alleged inconsistencies in the
information she provided. As mentioned above, there is a real concern that Dr. Bail was usurping the role of the trier of fact in
determining the issue of Ms. Bruff-McArthur’s credibility. Despite
that concern, I am willing to acknowledge that in a case such as
this, where the existence and extent of the alleged injuries are not
easily determined, consideration of the plaintiff’s veracity is a
necessary part of an independent medical examination. However,
if Dr. Bail were serious about probing this issue, he would not
have adopted this methodology. He would have reviewed the
inconsistencies with Ms. Bruff-McArthur.
 Second, and equally troubling, is that to the extent that
Dr. Bail referred to the scientific testing conducted, he torqued the
results so that they produced results that supported his conclusion. For example, he testified that Ms. Bruff-McArthur was
administered a test where she was instructed to count backwards
from 100 by sevens. He noted that she provided a few incorrect
answers in her count. Dr. Bail considered this to be an inconsistency because she was able to get some of the count right but
also made mistakes. For Dr. Bail, inconsistencies meant that the
subject was not being truthful about her condition.
 Dr. Bail then testified that in cases where a subject mathematically “just doesn’t have it together”, he asks them to recite
the months of the year in reverse order. Apparently, Ms. Bruff-McArthur did very well on this test, answering correctly and
quickly. Dr. Bail testified that this result was also an inconsistency because she did so well on that test and so poorly on the
sevens test. So, despite the fact that Dr. Bail testified that
he administers the month test as a check for those who are
not mathematically inclined, he calls into question her credibility for doing well on the month test and faring poorly on the
 Dr. Bail went on to administer another mathematical
test, requiring her to calculate how many $1.50 magazines could
be purchased with $10. Ms. Bruff-McArthur did not do well on