in Re: Ten Hagen Excavating, Inc.
435 S.W.3d 859
| Tex. App. | 2014Background
- Personal-injury suit: Castro-Lopez intervened claiming significant left wrist/hand/arm injuries from an auto collision and seeks past and future damages (including future surgery).
- Scheduling order (Level III): expert designation deadline Dec. 5, 2013; all discovery deadline Dec. 20, 2013.
- Ten Hagen’s original expert (Dr. Crane) filed a Chapter 18 controverting affidavit but died Oct. 25, 2013; the court struck Crane’s affidavit and gave Ten Hagen until Dec. 12, 2013 to file a replacement Chapter 18 affidavit without extending other discovery deadlines.
- Ten Hagen designated Dr. Sklar as its replacement expert, filed a new Chapter 18 affidavit Dec. 12, 2013, and moved Dec. 10, 2013 for a physical examination of Castro-Lopez by Dr. Sklar; the trial court denied the motion on Mar. 24, 2014.
- Ten Hagen sought mandamus, arguing the denial was an abuse of discretion because Castro-Lopez’s physical condition was "in controversy," there was "good cause," and appeal would be inadequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of appellate remedy | Appeal suffices; denial can be reviewed after trial | Denial of exam would severely compromise Ten Hagen’s ability to develop defense and cannot be remedied on appeal | Appeal would be inadequate because the missing exam evidence cannot be made part of the record and would vitiate Ten Hagen’s defense |
| Timeliness under Tex. R. Civ. P. 204.1 | Motion untimely (filed <30 days before discovery deadline) | Delay excused: death of prior expert, court-ordered replacement affidavit, motion filed within discovery period | Motion was effectively timely given unique facts; court properly considered it despite <30-day rule |
| “In controversy” requirement | Examination not justified by pleadings alone | Castro-Lopez’s claims of past and future physical impairment and recommended future surgery place physical condition in controversy | Physical condition was in controversy (plaintiff seeks future medical damages and impairment) |
| “Good cause” / reasonable nexus | Movant didn’t sufficiently describe the exam or show nexus | Dr. Diliberti’s records plus claimed future surgery show relevance and nexus; less intrusive means insufficient | Good cause shown: exam likely to yield relevant evidence, nexus exists, and records/depositions are inadequate |
| Qualification of proposed examiner | Dr. Sklar (physiatrist) not qualified to assess orthopedic/hand/nerve issues | Trial court may appoint neutral physician; denial based solely on qualifications is improper | Court may reject a specific physician and appoint another, but cannot deny the exam outright for that reason |
Key Cases Cited
- CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996) (mandamus relief requires clear abuse of discretion and no adequate appellate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus review of trial-court rulings)
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. 1964) (physical/mental examination rules require more than mere relevancy; good-cause limit)
- Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988) (Texas rule 204.1 derived from federal rule; in-controversy and good-cause requirements)
- In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998) (when denial of discovery cannot be cured on appeal, mandamus may be appropriate)
- In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus requires showing both lack of adequate appellate remedy and clear abuse of discretion)