Ornelas v. Southern Tire Mart, LLC
292 F.R.D. 388
| S.D. Tex. | 2013Background
- Defendant Southern Tire Mart, LLC moves for Rule 35 examinations of Plaintiff Reynaldo Ornelas by three experts.
- Examinations sought: Dr. Gregory Goldsmith (orthopedic surgeon), Dr. Francisco Perez (neuropsychologist), and Mr. William Quintanilla (vocational rehabilitation).
- Plaintiff alleges extensive physical injuries from a motor vehicle collision, including cervical and lumbar issues and disc herniations, with past and future medical damages.
- Plaintiff also seeks damages for mental anguish, while Defendant contends the mental condition is in controversy and seeks a neuropsychological examination.
- Court grants in part: Dr. Goldsmith and Quintanilla examinations are ordered; neuropsychological exam by Perez denied unless Defendant can show good cause; timelines and scope to be clarified; defenses and scheduling to be coordinated.
- Court also addresses related scheduling: extends expert designation/report deadlines to April 30, 2013 and possibly the discovery deadline to May 30, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 35 examinations are appropriate here. | Ornelas argues against neuropsychological exam and seeks limitations. | Southern Tire argues physical injuries place condition in controversy and good cause exists. | Rule 35 examination allowed for physical injuries; neuropsych exam denied pending showing of good cause. |
| Whether the neuropsychological examination should be ordered. | No ongoing or specific mental injury alleged. | Mental condition potentially in controversy due to damages claim. | Denied at this stage; may renew with proper showing. |
| Whether Plaintiff's counsel may attend the examinations. | Counsel should be present. | Counsel presence not required; could affect examiner independence. | Counsel not allowed absent special circumstances or agreement. |
| Whether audio/video recording of examinations is required. | Requests recording for integrity and evidence preservation. | Recording could distort the examination; not shown to be necessary. | No recording required absent special circumstances. |
| What is the scope, duration, and place of the examinations? | Need specifics to object to irrelevant tests; tests should be delineated; travel considerations. | Examiners will determine appropriate scope; details should be provided to proceed. | Court requires list of potential tests and scope; duration not fixed; travel to McAllen for Dr. Goldsmith deemed reasonable; other places mutually agreeable. |
Key Cases Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (Sup. Ct. 1964) (requires a showing of ‘good cause’ beyond mere relevance for Rule 35 examinations)
- Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 196 (N.D. Tex. 1995) (intensive fact-specific inquiry; good cause and in controversy)
- Womack v. Stevens Transp., Inc., 205 F.R.D. 445 (E.D. Pa. 2001) (exam relevance and necessity in Rule 35)
- Regan v. Trinity Distrib. Servs., Inc., 251 F.R.D. 108 (W.D.N.Y. 2008) (mental/physical condition in controversy and good cause for exam)
- Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir. 1990) (earlier view on vocational rehab expert and Rule 35; amended rule changes relevance)
- Duncan v. Upjohn, 155 F.R.D. 23 (D. Conn. 1994) (considerations on expert testing and Rule 35 impact)