in Re Advanced Powder Solutions, Inc.
01-15-00758-CV
| Tex. App. | Oct 30, 2015Background
- Tremaine Hewitt suffered severe burns and orthopedic injuries in an August 28, 2013 workplace accident while employed by Advanced Powder Solutions, Inc. (APS). Hewitt disclosed treating physicians and two expert reports (a treating surgeon and an economist).
- Early in discovery and before any depositions, APS moved to compel a defendant-retained independent medical examination (IME) and a functional capacity evaluation (FCE) of Hewitt. The motion sought both exams in a single request.
- Hewitt objected, arguing APS had not shown the required "good cause" under Tex. R. Civ. P. 204.1(c) and had not attempted less intrusive discovery (e.g., deposing treaters or experts).
- The trial court denied APS’s combined request for "physical examinations" (IME + FCE). APS filed a mandamus petition arguing the trial court abused its discretion.
- Hewitt’s response (this opinion) argues APS presented only conclusory allegations, failed to exhaust less-intrusive discovery, offered no affidavit from its experts explaining why an IME/FCE was necessary, and provided no authority entitling APS to compel an FCE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion by denying APS’s motion to compel an IME and FCE (good-cause requirement under Tex. R. Civ. P. 204.1) | Hewitt: APS failed to show "good cause"—did not exhaust less-intrusive discovery, offered only conclusory assertions, and gave no expert affidavits; denial was within trial court discretion. | APS: must be allowed to examine plaintiff so its experts can investigate and rebut plaintiff’s experts; injuries in controversy support an exam and fairness requires reciprocal access. | Denial affirmed as within trial court's discretion: APS did not make the affirmative, three‑part showing of good cause (relevance, nexus, and inability to obtain info by less intrusive means). |
| Whether an FCE may be compelled here (separate legal entitlement to FCE) | Hewitt: APS cited no authority entitling it to an FCE; FCEs are especially intrusive and typically for workers’ comp contexts; APS did not address or justify FCE. | APS: treated IME+FCE as part of defendant’s right to develop opposing medical evidence (argued together). | Court treated the request as a combined demand; APS failed to justify the FCE separately and the trial court did not abuse discretion in denying the overbroad, coupled request. |
| Whether showing that an injury is "in controversy" alone satisfies good cause for an IME | Hewitt: Injury-in-controversy alone is insufficient—Coates requires a three‑prong showing of good cause. | APS: designation of medical experts and claim of physical injury supports court-ordered examination. | Held: Injury in controversy alone is not enough; movant must satisfy all Coates prongs and show less intrusive methods are insufficient. |
| Whether movant must first attempt less intrusive discovery before seeking compelled exams | Hewitt: Movant must exhaust less intrusive means (depositions, records, expert reports) before an IME/FCE; APS had not deposed treaters or experts. | APS: argued fairness and need for its experts to perform their own examinations to rebut plaintiff experts. | Held: Movant must attempt less intrusive discovery; failure to do so justified denying the motion. |
Key Cases Cited
- Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988) (establishes Texas three‑part good‑cause test for compelled medical exams and requirement to balance privacy and fair trial)
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. 1964) (federal Rule 35 precedent emphasizing greater showing of need for physical/mental exams and that conclusory allegations are insufficient)
- In re Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App.—Dallas 2014) (discusses Rule 204.1 good‑cause requirements and preserves trial court discretion even when good cause shown)
- In re Transwestern Publ’g Co., 96 S.W.3d 501 (Tex. App.—Fort Worth 2002) (movant’s designation of experts alone insufficient to satisfy good‑cause requirement)
- In re Dallas Group of Am., Inc., 434 S.W.3d 647 (Tex. App.—Houston [1st Dist.] 2014) (mandamus standard: relator bears heavy burden to show abuse of discretion and no adequate appellate remedy)