Opinion issued=20
December 6, 2007
In The
Court of=20
Appeals
For=20
The
First =
District of=20
Texas
NO. =
01-07-00747-CV
IN RE MICHAEL MEDINA, OSCAR ALANIS, =
JOSE R.=20
ARELLANO, MIGUEL ARENAZAS, MARCO AREVALO, FELIX BELTRE, JORGE M. =
BENITEZ,=20
FABIAN DE LA CERDA, DEMETRIO DIAZ, DECEASED, ODICEO DIAZ, ELVIS =
ESCOBAR,=20
DAVID ESPARZA, ANDRES FLORES, JOSE FUENTES, JULIAN FUENTES, =
FRANKLIN=20
GARCIA, ARCADIO GOMEZ, JOSE L. GONZALEZ, JUAN C. GONZALEZ, JULIO =
GUERRA,=20
ANTONIO HEREDIA, GUILLERMO HERNANDEZ, ADRIAN HINOJOSA, JAIME =
JIMENEZ,=20
MARTIN JUAREZ, JESUS M. LOPEZ, RODOLFO LOPEZ, AURELIO MARQUEZ, =
JUAN M.=20
MARTINEZ, MARIO A. MARTINEZ, JOSE MORALES, MIGUEL A. MORALES, =
SALVADOR=20
MORALES, ALEXANDER NATION, PEDRO NAVAR, MARTIN OLIVARES, FREDDY =
ORTEGA,=20
JUAN CARLOS ORTIZ, JOSE PADILLA, ALONZO PEREZ, FERMIN PEREZ, =
MARTIN PEREZ,=20
RAUL RIOS, WILFREDO C. RIVAS, JUAN ANTONIO RIVERA, ROBERT RIVERA, =
III,=20
ERNESTO RODRIGUEZ, TOMAS RODRIGUEZ, JAVIER ROJAS, JOSE MARTIN =
SALINAS,=20
MIGUEL A. SALINAS, ABEL SANCHEZ, BERNABE VASQUEZ, AND JESUS =
VILLARREAL,=20
Relators
Original Proceeding on Petition for =
Writ of=20
Mandamus
MEMORANDUM=20
OPINION
=
By=20
petition for writ of mandamus, relators (=E2=80=9Cthe Medina =
Plaintiffs=E2=80=9D)=20
challenge the trial court=E2=80=99s order authorizing independent =
medical=20
examinations (=E2=80=9CIME=E2=80=9D) to assess physical and mental =
injuries of the 55=20
Medina Plaintiffs. ![3DFootnote](3D"")
We deny in part and grant in =
part.=20
Background
<=
/SPAN>The=20
Medina Plaintiffs are workers who suffered personal injuries from =
the=20
British Petroleum Texas City Refinery (=E2=80=9CB.P.=E2=80=9D) =
explosion on March 23,=20
2005. Ammons represented the Medina Plaintiffs in their suit =
against B.P.=20
and negotiated a settlement on their behalf. The Medina Plaintiffs =
later=20
filed a legal malpractice suit against Ammons alleging, among =
other=20
things, negligence and breach of fiduciary duty.
<=
/SPAN>Ammons=20
filed a Motion for Independent Medical and Psychological =
Examinations for=20
all 55 of the Medina Plaintiffs. The trial court granted this =
Motion, and=20
also ruled that no representatives of the Medina Plaintiffs could =
attend=20
the examinations or videotape or audiotape the examinations. =
Standard of=20
Review
=
Mandamus=20
relief is available only to correct a clear abuse of discretion =
when there=20
is no adequate remedy by appeal. Walker v. Packer, 827 =
S.W.2d 833,=20
839 (Tex. 1992) (orig. proceeding). A court clearly abuses its =
discretion=20
when it reaches a decision so arbitrary and unreasonable that it =
amounts=20
to a clear and prejudicial error of law. Id.IMEs
<=
/SPAN>The=20
Medina Plaintiffs allege that the requirements for obtaining the =
IMEs had=20
not been satisfied and the global order for all 55 of them was=20
inappropriate. See Tex. R.=20
Civ. P. 204.1. Ammons, however, contends that IMEs are =
appropriate=20
because a legal malpractice case is actually a =
=E2=80=9Csuit-within-a-suit.=E2=80=9D=20
Specifically, Ammons argues that, because the common claim of the =
Medina=20
Plaintiffs=E2=80=99 is that they should have received more money =
for their=20
personal injury suit against B.P., Ammons should be permitted to =
conduct=20
IMEs to help determine the legitimacy of the claims. Ammons =
alleges that=20
the examinations are appropriate because the Medina Plaintiffs =
have=20
claimed that Ammons settled the case before their future medical =
care was=20
resolved. Moreover, Ammons asserts that the psychological =
examinations=20
were necessary because the Medina Plaintiffs collectively have =
asserted=20
post-traumatic stress disorder.
The Law
<=
/SPAN>IMEs=20
are regulated under Texas Rule of Civil Procedure 204.1, which =
provides in=20
relevant part:
(c) =20
Requirements for Obtaining Order. The court may issue an =
order for=20
examination only for good cause shown and only in the following=20
circumstances:
&=
nbsp; (1)&nbs=
p; when=20
the mental or physical condition (including the blood group) of a =
party,=20
or of a person in the custody, conservatorship or under the legal =
control=20
of a party, is in controversy; or
&=
nbsp; (2)&nbs=
p; except=20
as provided in Rule 204.4, an examination by a psychologist may be =
ordered=20
when the party responding to the motion has designated a =
psychologist as a=20
testifying expert or has disclosed a psychologist=E2=80=99s =
records for possible=20
use at trial.
Tex. R.=20
Civ. P. 204.1.(c). Accordingly, good cause must be shown =
for=20
issuance of the exams. Additionally, the mental or physical =
condition of=20
the party must be in controversy or the party responding to the =
motion=20
must have designated a psychologist as a testifying expert or =
disclosed a=20
psychologist=E2=80=99s records for possible use at trial. Good =
cause is shown when=20
(1) the examination is relevant to issues in the case and that the =
examination will produce, or is likely to lead to, relevant =
evidence; (2)=20
there is a reasonable nexus between the condition of the person to =
be=20
examined and the examination sought; and (3) it is impossible to =
obtain=20
the desired information through means that are less intrusive than =
a=20
compelled examination. Coates v. Whittington, 758 S.W.2d =
749, 753=20
(Tex. 1988).
<=
/SPAN>The=20
=E2=80=9Cin controversy=E2=80=9D requirement varies according to =
whether physical or=20
mental IMEs are at issue. Physical injuries have been held to be =
in=20
controversy when a party (1) places the condition into controversy =
by=20
employing it either in support of, or in defense of, a claim or =
(2) a=20
party affirmatively shows that the condition is in controversy.=20
Williams v. Sanderson, 904 S.W.2d 212, 214=E2=80=9315 (Tex. =
App.=E2=80=94Beaumont=20
1995, no writ). Mental IMEs are subject to a more rigorous =
standard due to=20
their sensitive nature. As noted in Coates, =
=E2=80=9CPlaintiffs should not=20
be subjected to public revelations of the most personal aspects of =
their=20
private lives just because they seek compensation for mental =
anguish=20
associated with an injury.=E2=80=9D Coates, 758 S.W.2d at =
752. Accordingly,=20
routine allegations of mental anguish or emotional distress =
accompanying=20
physical injury do not place mental condition =E2=80=9Cin =
controversy.=E2=80=9D Id.=20
at 753. To obtain an IME, the plaintiff must claim a mental injury =
exceeding the common emotional reaction to an injury or loss. =
Id.=20
Analysis
<=
/SPAN>In=20
their Ninth Amended Petition, the Medina Plaintiffs allege that =
the=20
settlements were undertaken =E2=80=9Cduring a time when many of =
the plaintiffs had=20
not reached maximum medical recovery, nor had the status of their =
future=20
medical care been resolved.=E2=80=9D Moreover, the Medina =
Plaintiffs assert=20
various allegations that necessarily place their physical status =
in issue.=20
For example, Demetrio Diaz claims that Ammons did not fully =
investigate=20
and assess his individual claim. Oscar Alanis alleges that Ammons=20
improperly interjected himself in Alanis=E2=80=99s medical care =
and treatment by=20
urging neck surgery to increase the value of his case. Jose R. =
Arellano=20
claims that Ammons told him that further surgery would not affect =
the=20
value of his case.
<=
/SPAN>In=20
the Medina Plaintiffs=E2=80=99 case against Ammons, physical IMEs =
will likely=20
reveal relevant evidence because the present physical condition of =
the 55=20
plaintiffs will help determine the legitimacy of their claims.=20
Furthermore, there is a reasonable nexus between the condition of =
the=20
person to be examined and the examination sought based on the =
Medina=20
Plaintiffs=E2=80=99 suit-within-a-suit claim that they should have =
obtained more=20
money from B.P. than what they procured in settlement. It is =
impossible to=20
obtain the desired information through means that are less =
intrusive than=20
a compelled examination. The Medina Plaintiffs have put their =
physical=20
condition in issue in their Ninth Amended Original Petition. =
Accordingly,=20
physical IMEs were properly issued.
<=
/SPAN>In=20
contrast, some of the Medina Plaintiffs allege severe mental =
injury=20
warranting an IME and others do not. Ammons attempts to persuade =
the Court=20
that psychological IMEs are justified because the Medina =
Plaintiffs=20
designated psychological experts and collectively asserted =
post-traumatic=20
stress disorder. In fact, the Medina Plaintiffs did not designate =
experts=20
and did not collectively assert post-traumatic stress disorder.=20
<=
/SPAN>With=20
respect to the expert designation, the Medina Plaintiffs responded =
to=20
Request for Disclosure 194.2(f) with the following:
Plaintiffs, of course, designate =
themselves and=20
the witnesses identified as individuals having knowledge of =
relevant facts=20
who may be offering expert testimony in their area of knowledge.=20
Plaintiffs will supplement pursuant to the Texas Rules of Civil =
Procedure=20
and/or any Scheduling Orders entered in this case.
This information is not responsive to =
Rule=20
194.2(f), which demands the subject matter on which the expert =
will=20
testify and the general substance of the expert=E2=80=99s mental =
impressions and=20
opinions and basis for them. Moreover, the referenced list of =
=E2=80=9Cwitnesses=20
identified as individuals having knowledge of relevant =
facts=E2=80=9D does not=20
supply this information.
<=
/SPAN>In=20
the suit at bar, the Medina Plaintiffs are not all claiming =
post-traumatic=20
stress disorder. Post-traumatic stress disorder justifies a =
psychological=20
IME because it is the type of mental injury exceeding the common =
emotional=20
reaction to an injury that was contemplated in Coates. =
See=20
Coates, 758 S.W.2d at 752. Only a portion of the 55 Medina =
plaintiffs=20
are asserting post-traumatic stress disorder. Ammons contends, =
however, in=20
the underlying suit against B.P., there was a collective claim for =
post-traumatic stress disorder in the settlement letter. Ammons =
has not=20
included this letter in the appellate record.
<=
/SPAN>Ammons=20
notes that the Medina Plaintiffs=E2=80=99 responses to =
interrogatories reference=20
=E2=80=9Cdepression=E2=80=9D and =E2=80=9Canxiety.=E2=80=9D Ammons =
then cites Coates to support his=20
contention that depression and anxiety are =E2=80=9Cmental =
injuries above and=20
beyond any emotional distress that accompanies personal =
injury.=E2=80=9D Id.=20
In fact, =E2=80=9Canxiety=E2=80=9D is never mentioned in =
Coates and=20
=E2=80=9Cdepression=E2=80=9D is not necessarily imbued with =
IME-triggering status.=20
However, Coates articulates a standard by which depression =
and=20
other mental disturbances can be assessed with regard to issuance =
of an=20
IME. Coates, 758 S.W.2d at 753.
<=
/SPAN>If=20
the depression felt by the Medina Plaintiffs is the standard sort =
that, in=20
all probability, a person would feel if he were injured by, and =
lost=20
friends in, an explosion, no psychological IME is warranted. =
See=20
id. at 752. However, if the depression exceeds common =
emotional=20
reaction, is severe, and requires treatment by a professional, an =
IME is=20
justified. See id. at 752=E2=80=9353. In the case at =
hand, it is=20
impossible for this Court, based on the record provided, to =
determine=20
which of the 55 Medina Plaintiffs assert mental injury to warrant=20
psychological IMEs.
<=
/SPAN>Under=20
the standard promulgated in Texas Rule of Civil Procedure 204.1,=20
psychological IMEs are appropriate for some and inappropriate for =
some of=20
the Medina Plaintiffs. The Medina Plaintiffs explicitly state that =
only a=20
portion of them will assert deep-seated mental injury. Because no =
experts=20
have been designated by the Medina Plaintiffs, Rule 204.1(c)(2) =
cannot=20
justify IME issuance. Therefore, the propriety of psychological =
IMEs for=20
the individual 55 Medina Plaintiffs can only be determined after a =
showing=20
of (1) good cause and (2) mental condition in controversy. Based =
on the=20
record before us, there is no evidence that any of the Medina =
Plaintiffs=20
have placed their mental condition in controversy.
Conclusion
We hold that the trial court did not =
abuse its=20
discretion by ordering physical
IMEs for all of the Medina Plaintiffs. =
However,=20
because the evidence before the district court showed that not all =
of the=20
plaintiffs are asserting mental injury beyond the distress =
normally=20
accompanying physical injury, the district court abused its =
discretion in=20
granting a global IME to assess psychological health. We =
conditionally=20
grant the petition for writ of mandamus for the portion of the =
Order=20
granting IMEs for psychological health. The writ will issue only =
if the=20
trial judge refuses to rescind the portion of the Order granting =
IMEs for=20
psychological health.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
George=20
C. Hanks, Jr.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Taft, Hanks, =
and=20
Higley.
|