The Texas Supreme Court recently issued two mandamus opinions that re-affirm two avenues for defendants to attack a plaintiff’s medical expenses and injuries in a personal injury case: the section 18.001 counteraffidavit, and the motion to compel a medical examination under rule 204.1 of the Texas Rules of Civil Procedure. See In re Chef’s Produce of Houston, Inc., 667 S.W.3d 297 (Tex. 2023) (orig. proceeding), and In re Sherwin-Williams Co., __ S.W.3d __, No. 22-0559, 2023 WL 3261790 (Tex., May 5, 2023) (orig. proceeding).
Chef’s Produce involved a motor vehicle accident. The plaintiff tendered his affidavit to support medical expenses, pursuant to section 18.001 of the Texas Civil Practice & Remedies Code, establishing he incurred nearly $20,000 in reasonable and necessary medical expenses. In response, the defendant presented a counteraffidavit from a medical doctor challenging the reasonableness and necessity of those expenses. The plaintiff moved to strike the counteraffidavit, and the trial court granted the motion. The defendant challenged the order via petition for writ of mandamus.
The Texas Supreme Court held that the trial court abused its discretion in striking the counteraffidavit because it satisfied the requirements of section 18.001(f): to provide the plaintiff with reasonable notice of the basis on which the defendant intended to controvert the reasonableness and necessity of the expenses at trial. Relying on its prior landmark opinion interpreting section 18.001, In re Allstate Indemnity Co., 622 S.W.3d 870 (Tex. 2021) (orig. proceeding), the Court reiterated that “reasonable notice” does not hinge on the ultimate admissibility of the counteraffiant’s testimony.
Rather, for “reasonable notice,” the trial court must determine whether the counteraffidavit allows the claimant to understand “the nature and basic issues in controversy and what testimony will be relevant,” such that the claimant has “sufficient information to enable that party to prepare a defense or a response.” The Court held that the counteraffidavit provided reasonable notice because it:
• assessed the medical treatment provided to the plaintiff;
• identified which treatment was medically unnecessary and explained the basis for the opinions; and
• identified which treatments were medically necessary but billed at inflated rates, and explained the basis for the opinions via comparisons to national and local database information.
The fact that plaintiff contended the physician’s counteraffidavit testimony was unreliable did not affect the sufficiency of the counteraffidavit for section 18.001(f) purposes. The Court said the plaintiff could challenge reliability through either a Daubert-Robinson motion or cross-examination at trial.
Also, the fact that the counteraffidavit contained an opinion challenging the causation of some of plaintiff’s damages had no bearing on its validity under section 18.001(f). That section provides simply that a causation opinion is not admissible solely because it is contained in a counteraffidavit. The Court held the inclusion of a causation opinion in a counteraffidavit is not a proper basis for striking it.
For these reasons, the Court held that the trial court clearly abused its discretion in striking the counteraffidavit and the physician’s related testimony. And, because the defendants’ deadline to designate experts already had expired, the striking of the counteraffidavit and the expert’s controverting testimony severely compromised the defendants’ ability to present their defense to medical expenses, a key component of plaintiff’s damages. Because defendants had satisfied both requirements for mandamus relief, the Court conditionally granted the writ.
Sherwin-Williams also involved a motor vehicle accident. The plaintiff sought past and future medical expenses and had designated two of his treating physicians as experts to opine on his medical treatment and inability to return to work, as well as two experts to opine on his medical improvement and reduction in wage-earning capacity. Defendants designated a spine surgeon as their expert and moved for a medical examination of plaintiff by their expert, pursuant to rule 204.1 of the Texas Rules of Civil Procedure.
The trial court denied the motion, and the defendants sought review via petition for writ of mandamus. Under rule 204.1, a trial court may compel a medical examination “only for good cause shown” and when the mental or physical condition of a party “is in controversy.” Tex. R. Civ. P. 204.1.
To establish good cause, the movant must show: (1) the examination is relevant to the issue in controversy and is likely to lead to relevant evidence; (2) there is a “reasonable nexus between the examination and the condition in controversy”; and (3) the desired information “cannot be obtained by less intrusive means.” The parties in Sherwin-Williams disputed only the third requirement.
The Court referred back to its 2016 opinion in In re H.E.B. Grocery Co., 492 S.W.3d 300 (Tex. 2016) (orig. proceeding), in which it had discussed the proof needed to satisfy the third requirement. The Court there identified several relevant considerations: (1) whether plaintiff intended to prove causation and damages through expert testimony from doctors who had examined the plaintiff; (2) whether the results of the defendant’s requested exam went to the heart of its defense strategy; (3) whether the defendant provided expert testimony as to why a treating doctor was in a better position than a records-review doctor to examine and opine on the particular injuries alleged; and (4) whether having the defendant’s expert testify at trial without the exam would place him at a distinct disadvantage because it would allow the plaintiff to call into question his credibility in front of the jury.
The Court held that the defendants in Sherwin-Williams had met their burden to show “good cause” and no less intrusive means. First, the plaintiff would be relying on treating physicians at trial to prove his medical condition.
Second, the defense expert spine surgeon explained in his affidavit that he needed to examine the plaintiff to determine the extent to which his injuries were caused or exacerbated by the accident; his current condition and what future care and treatment would be necessitated by the accident; and what limitations the plaintiff may have on his ability to work. The expert also opined that the examination would provide him with information that is not available solely from a review of medical records or the transcript of a deposition of a treating physician, and that orthopedic surgeons are taught that, where possible, they should make their own observations regarding muscle strength, range of motion, tenderness, reflexes, and nerve impingement because these are “subjective tests.”
Third, the defendants asserted that these matters were central to their defense. Fourth, requiring the defense expert to testify at trial without the benefit of examining the plaintiff would place him at a distinct disadvantage and put his credibility in issue. Therefore, because the evidence established the requirements under rule 204.1, the trial court clearly abused its discretion by denying the motion for medical exam.
The defendants lacked an adequate remedy by appeal because the ruling severely compromised their ability to present a viable defense. Their defense challenged the cause and extent of the plaintiff’s injuries, and the “fair resolution of those challenges at trial depends on competing expert testimony” that Sherwin-Williams had not been given an opportunity to develop. Accordingly, the Court conditionally granted the writ.
These cases provide useful tools for defense counsel to ensure that defendants will be able to fully challenge reasonableness and necessity of the plaintiff’s medical expenses and the extent and cause of plaintiff’s injuries in personal injury trials.