United States District Court, W.D. Texas, San Antonio Division
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES
the Court in the above-styled cause of action is
Defendants' Motion to Examine Plaintiff Megan Rivas
[#27]. Defendants ask the Court for an order requiring
Plaintiff Megan Rivas to submit to a medical examination by
one of their retained experts, Adwale Adeniran, M.D., on the
basis that she has placed her medical condition in
controversy by filing this personal-injury action and seeking
damages for future medical expenses. The motion was referred
to the undersigned on July 3, 2019 for disposition, and on
this day the Court held a hearing on the motion.
reviewing the docket in this case in preparation for the
hearing, the Court identified numerous issues with the
parties' filings (or lack thereof) and noncompliance with
Court orders and Local Rules. First, the motion filed by
Defendants does not contain a certificate of conference, as
required by Local Rule 7(i). Nor did Plaintiffs ever file a
response to the motion in accordance with the guidelines set
forth in Local Rule 7(e). Additionally, the Court's Order
setting the motion for a hearing explicitly directed the
parties to confer on the motion and to file a joint advisory
on or before August 1, 2019 advising the Court of the issues
remaining in dispute. (Order [#32].) The parties failed to do
so. Finally, Defendants moved for their requested relief
under a Texas Rule of Civil Procedure, rather than the
governing procedural rule-Rule 35 of the Federal Rules of
Rules of Civil Procedure. Despite all of these issues, the
Court will grant the motion but will also admonish the
parties that any future failure to comply with this
Court's Local Rules or orders of the Court could result
in the imposition of sanctions.
grants the Court authority to order any party whose mental or
physical condition is “in controversy” to submit
to a physical or mental examination by a suitably licensed or
certified examiner. Fed. R. Civ. P 35(a)(1). The order must
be made only on motion “for good cause” and must
specify “the time, place, manner, conditions, and scope
of the examination, as well as the persons who will perform
it.” Id. at 35(a)(2). Accordingly, under Rule
35, three requirements are necessary to enable a court to
order a Rule 35 exam: (1) the party's physical or mental
condition must be in controversy; (2) the expert must be
either a physician or a psychologist; and (3) good cause must
be shown. Acosta v. Tenneco Oil Co., 913 F.2d 205,
208 (5th Cir. 1990).
the parties failed to file the ordered advisory on the
remaining issues in dispute, the parties informed the Court
at the hearing that Plaintiffs do not oppose the requested
Rule 35 examination. And there is no reasonable basis for
doing so. The Court finds that Plaintiff Megan Rivas has
placed her medical condition “in controversy” by
alleging that she suffered bodily injuries as a result of the
motor-vehicle accident underlying this suit and pleading
damages in the form of past and future medical expenses.
See Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964)
(“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.”).
Court also finds the requisite good cause for the requested
examination. Courts have found good cause for a Rule 35
examination where a plaintiff intends to prove her claim for
mental health damages through the testimony of her own expert
witness. See Shadix-Marasco v. Austin Reg'l Clinic
P.A., No. A-09-CA-891 LY, 2011 WL 2011483, at *3 (W.D.
Tex. May 20, 2011) (“When a claimant has retained her
own experts and intends to prove her claim at trial through
their testimony, and when her mental injuries will be an
important component of her damages, good cause exists to
permit defendant to select its own expert in that field to
examine her.”); see also McCormick v. Payne,
No. 4:15-CV-809, 2016 WL 3124624, at *1-2 (E.D. Tex. June 3,
2016); Diaz v. Con-Way Truckload, Inc., 279 F.R.D.
412, 423 (S.D. Tex. 2012) (concluding same). Plaintiffs'
designation of Dr. Stephen E. Earle, M.D., as an expert to
opine on her medical condition and the injuries she suffered
from the accident in question provides this Court with good
cause to order a Rule 35 examination by Defendants'
retained expert physician, Dr. Adeniran.
only disputed issue is whether Dr. Adeniran may ask Rivas
questions about her medical history during the examination.
Plaintiffs could not, however, direct the Court to any
authority for their position that a Rule 35 medical
examination precludes the examining physician from placing
the patient's medical history in context by asking
questions to supplement the available medical records. In
light of Plaintiffs' failure to respond to the motion or
to provide the Court with any basis for their objection to
the requested examination, the Court will grant
Defendants' motion and order the Rule 35 examination as
IS THEREFORE ORDERED Defendants' Motion to
Examine Plaintiff Megan Rivas [#27] is
IS FURTHER ORDERED that Plaintiff Megan Rivas shall
undergo a medical examination by Dr. Adwale Adeniran, MD,
orthopedic spine surgeon, to consist of a noninvasive
physical examination and neurological exam including: (1)
range of motion tests on the neck, back, hips, and shoulders
with palpitation of muscles and tendons; (2) sitting straight
leg raises; (3) palpation of peripheral pulses for vascular
examination; (4) motor testing; (5) sensory testing; and (6)
reflex testing. The examination shall take place at Dr.
Adeniran's office located at San Antonio Orthopedic
Group, not later than September 30, 2019.
IS FURTHER ORDERED that Dr. Adeniran supplement his
expert report within 14 days of the
examination and that Plaintiffs' experts may
supplement their reports within 14 days of receiving
any supplemental report from Defendants'
IS FINALLY ORDERED that the parties are ordered to
read this Court's Local Civil Rules (available at
full and are hereby admonished that any future failure to
comply with Federal Rules of Civil Procedure, the Local