Texas Gets Rule 35 Right

Rule 35 examinations are a frequent topic, unnecessarily so in my opinion.[1]  Locally, there is an assertion that a Rule 35 examiner must be “independent,” despite the fact that term is never used in the rule.[2]  Some also argue a Rule 35 examiner cannot formulate an opinion before examining the plaintiff.[3]  All of this has led, in my opinion, to a huge amount of wasted time and money spent arguing about something that is nowhere to be found in the rule.

Earlier this year, the Supreme Court of Texas ruled upon the Texas equivalent of a Rule 35 examination request and addressed some of these arguments.  In re H.E.B. Grocery Co., L.P.[4] arose from a trip and fall at a grocery store.  HEB retained William Swan, M.D. as a medical expert.  “Though Dr. Swan routinely examines patients prior to formulating expert opinions, he did not examine Rodriguez before preparing this report, which was based solely on a review of Rodriguez’s medical records.”  He concluded the plaintiff had a pre-existing injury that was unaffected by the fall.  After Dr. Swan wrote his report, HEB requested Texas’s equivalent to a Rule 35 examination.  The motion was denied without explanation.

TRCP 204.1 governed the examination.  HEB had to establish 1) good cause for the examination; and 2) the physical or mental condition it wanted to examine was in controversy.  “The purpose of Rule 204.1’s good-cause requirement is to balance the movant’s right to a fair trial and the other party’s right to privacy.”  “To show good cause, the movant must (1) show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence, (2) establish a reasonable nexus between the requested examination and the condition in controversy, and (3) demonstrate that the desired information cannot be obtained by less intrusive means.”

HEB easily established relevance because the condition it sought to examine was the same one for which the customer sought a recovery.  The customer argued “that Dr. Swan was able to formulate an opinion without requesting or conducting an examination, but we fail to see how this undermines the examination’s relevance or otherwise extinguishes any right HEB may have to such an examination.”  “[R]equiring Dr. Swan to testify at trial without the benefit of examining Rodriguez places him at a distinct disadvantage because it allows Rodriguez to call into question his credibility in front of the jury.”

HEB also demonstrated the information could not be obtained by less intrusive means.

Although Dr. Swan has reviewed Rodriguez’s medical records, he explained in his deposition why “a treating doctor is in a better position to examine and treat a patient’s injuries” than a “records review doctor.”  Significantly, Rodriguez intends to prove causation and damages through expert testimony, and Rodriguez’s expert has already examined him. HEB merely seeks to allow its competing expert the same opportunity, and the results of Dr. Swan’s requested examination go to the heart of HEB’s defense strategy.

Finally, the fact that Rodriguez suffered a subsequent injury after Dr. Swan’s report also supported an examination.

[W]e agree with HEB that the Sam’s Club incident, which occurred after Dr. Swan prepared his initial report, introduced new complications with respect to the nature, extent, and cause of Rodriguez’s injuries that warrant a physical examination. We hold that the requested single physical examination “is required to obtain a fair trial and therefore necessitates intrusion upon the privacy of the person [HEB] seeks to have examined.”

I agree with this ruling primarily because it was based upon the text of the rule.  The problems that exist in Nevada’s state courts arise when the courts attempt to impose requirements upon the party requesting the examination that do not exist in the rule.

[1] June 8, 2015 (discussing Rule 35 examination “rules”); June 15, 2015 (asking if Rule 35 examinations are worth the hassle).
[2] June 1, 2015 (comparing a state court ruling requiring “independence” against federal ruling noting independence is not required in Rule 35); October 29, 2015 (discussing another federal ruling refusing to disqualify a proposed examiner because of “bias”).
[3] August 15, 2013 (discussing state court ruling where proposed examiner had already formed an opinion before the Rule 35 examination).
[4] 492 S.W.3d 300 (Tex. 2016) (publication status pending).