CHAPTER 12 - 12-2 Motion and Order Required

• Jurisdiction: United States

12-2 Motion and Order Required

12-2:1 Motion to Compel Physical or Mental Examination

12-2:1.1 In General

Texas Rule 204 permits a court to order physical or mental examinations.¹ It only permits the examination of a "another party" or "a person in the other party's custody, conservatorship, or legal control."² "Another party" is any other party to the case, not merely the opposing party, and includes plaintiffs, defendants, and third-party defendants.³ It does not include nonparties.⁴ The Rule also does not permit a party to move a court to appoint an expert to perform a physical or mental examination of the moving party.⁵ Federal courts have held that parents suing on behalf of their child are not within Federal Rule 35's scope.⁶ No Texas case has considered this question.

Under Texas Rule 204.1(a), a party must file a motion for an order compelling the examination.⁷ Accordingly, a trial court cannot order an examination on its own initiative except in cases arising under Title II or Title V of the Texas Family Code, which are subject to the unique requirements described in Chapter 12, section 12-6. In addition, as discussed in Chapter 12, section 12-4, the parties can agree to a physical or mental examination, thereby bypassing Texas Rule 204.1's motion and order requirements.

12-2:1.2 Timing and Service of Motion

A motion for an order compelling a physical or mental examination must be filed "no later than 30 days before the end of any applicable discovery period[.]"⁸ As with other discovery types, the deadline for such motions can be modified "by the agreement of the parties or by court order for good cause."⁹ Read literally, Texas Rule 204.1(a) allows a party to file a motion for a physical or mental examination after the expert-designation deadline, as that deadline often is more than thirty days before discovery closes. No Texas case has considered the interplay between Texas Rule 204.1(a) and expert-designation deadlines. Federal courts are divided regarding whether physical and mental examinations must be completed before the expert-designation deadline.¹⁰ It is prudent to include deadlines in the case's Texas Rule 190 discovery control plan regarding when Texas Rule 204 physical or mental examinations must be requested and completed and when the Texas Rule 204.2(a) reports must be provided.

The party moving for the physical or mental examination must serve both "[t]he motion and notice of hearing [on the motion] . . . on [(1)] the person to be examined[,] and [(2)] all parties."¹¹ As with other discovery types, Texas Rule 21a provides the permissible methods of service for the motion and the hearing notice.¹² Because Texas Rule 21a(a) allows motions and notices to be served on a party's attorney instead of the party,¹³ service on the opposing party's attorney is sufficient both for a physical or

Because the order granting a motion for a physical or mental examination "must specify . . . the person or person by whom [the examination] is to be made,"¹⁵ the motion for the examination should suggest a physician or psychologist—typically the movant's expert—to conduct the examination.¹⁶

12-2:1.3 The Motion's Grounds

Texas Rule 204.1(c) allows a trial court to issue an order permitting a physical or mental examination (1) for "good cause shown," and (2) when either "the mental or physical condition (including blood group)" of the person sought to be examined is "in controversy" or, except in cases arises under Titles II or III of the Family Code, when "the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist's records for possible use at trial."¹⁷ "These requirements cannot be satisfied 'by mere conclusory allegations of the pleadings—nor by mere relevance to the case.'"¹⁸ Nonetheless, there are circumstances when a party's pleading alone is sufficient to meet the requirements for a physical or mental examination. As explained by the United States Supreme Court in construing Federal Rule 25: "A plaintiff in a negligence action who asserts mental or physical injury, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as to a plaintiff but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for example, where insanity is asserted as a defense to a divorce action."¹⁹

12-2:1.3a Good Cause

Texas Rule 204.1(c)'s "good-cause" requirement "recognizes that competing interests come into play when a party's mental or physical condition is implicated in a lawsuit—the party's right of privacy and the movant's right to a fair trial. A balancing of the two interests is thus necessary to determine whether a compulsory examination may properly be ordered."²⁰

Establishing "good cause" requires the party moving for the physical or mental examination to: (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.'"²¹

Texas courts have provided guidance about each of these requirements. With respect to the first one—relevance—courts have held that (1) an expert's ability to "formulate an opinion without requesting or conducting an examination" does not undermine the physical or mental examination's relevance,²² (2) a requested physical or mental examination is not rendered irrelevant by virtue of the fact that it is "sought for the purpose of litigation[,]"²³ (3) a plaintiff whose petition alleges "physical and mental injuries to several parts of his body . . . cannot dispute that a physical or neurological exam would be 'relevant to issues' that are genuinely in controversy, namely his claimed physical or mental injuries[,]"²⁴ and (4) if a plaintiff offers expert testimony relating to his or her future medical expenses, a requested examination that is designed to elicit opinions relating to the plaintiff's injuries and anticipated future medical treatment for the purpose of challenging the plaintiff's expert's opinions, is relevant to issues genuinely in controversy in the case.²⁵

As to the second requirement—reasonable nexus—courts have held that (1) "a substantive description of the precise nature of the [requested] examination or expected outcome of the examination" is unnecessary to establish the reasonable nexus between the condition in controversy and examination, particularly when other case materials (such as pleadings and a competing expert's notes) demonstrate the nexus,²⁶ and (2) "a 'reasonable nexus' exists between the condition in controversy and the examination sought if the purpose of the requested exam . . . is to determine the existence, nature and extent of the plaintiff's injuries and . . . those injuries make up the 'condition in controversy.'"²⁷

Finally, as to the third requirement—less intrusive means:

Texas courts have identified a number of avenues that could, in appropriate cases, potentially provide less intrusive means for obtaining medical information without an examination. For instance, less intrusive measures might include deposing the opposing party's doctors and attempting to obtain copies of medical records, or relying on existing expert witness reports already filed in the case. The adequacy of these measures must still be evaluated in light of the fair trial standard, however. In general, and particularly where the intended examination is not intrusive, invasive or unnecessarily physically uncomfortable, parties are permitted to explore matters not covered by the opposing party's examinations, make their own observations, and attempt to discover facts that may contradict the opinions of the opposing party's expert witnesses. In many cases the treating physician's notes, the medical records of the complaining party, and expert witness reports filed by other parties cannot serve these legitimate purposes. In addition, where the information already available through less intrusive means is inadequate, a party may obtain a physical examination for which good cause is otherwise shown.²⁸

There are no "less intrusive means," and "good cause" generally exists, for a physical or mental examination when an opposing party intends to use expert medical or psychological testimony to establish his or her physical or mental condition.²⁹ This because "[o]rdinarily, a moving party's expert should be allowed the 'same opportunity' as the opposing party's expert to 'fully develop and present [his or her] opinion, ensuring a fair trial.'"³⁰

12-2:1.3b Mental or Physical Condition in Controversy

Texas Rule 204.1 most often is litigated with respect to mental examinations.³¹ Texas cases suggest that the "in-controversy" requirement depends on whether a physical or mental examination is requested.³² "Physical injuries have been held to be in controversy when a party (1) places the condition into controversy by employing it either in support of, or in defense of, a claim or (2) a party affirmatively shows that the condition is in controversy."³³

Mental examinations, however, "are subject to a more rigorous standard due to their sensitive nature."³⁴ "[A] routine allegation of mental anguish or emotional distress does not place the party's mental condition in controversy. The plaintiff must assert mental injury that exceeds the common emotional reaction to an injury or loss."³⁵ Moreover, "sweeping examinations of a party who has not affirmatively put his mental condition in issue may not be routinely ordered simply because the party brings a personal injury action."³⁶ Rather, a party "must assert mental injury that exceeds the common emotional reaction to an injury...