IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND GREGORY ALAN SCOTT (2025)

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

Dissent and Opinion Filed August 21, 2025

“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.” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). This court has long recognized the truth behind that simple proposition. See In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 867-68 (Tex. App. - Dallas 2014, pet. denied).

But, for reasons not clear on this record, a panel of this court failed to follow our precedent set by Ten Hagen. The en banc majority follows suit by denying en banc reconsideration. Because Ten Hagen is binding precedent from this court, because the trial court refused to give the Rule 204 relief sought below, and because the Supreme Court has ruled at least three times in the last decade that Rule 204 is not an optional portion of our discovery rules, I respectfully dissent from the refusal to reconsider the matter en banc.

To permit discovery of facts necessary for the defense against personal injury claims, the Supreme Court promulgated former Rule 167a. The rule was based upon Fed. R. Civ. P. 35. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988). Rule 167a was later amended and renumbered as Rule 204, effective January 1, 1999. Controversy about the scope of the rule has existed from its beginning. See, e.g., Coates, 758 S.W.2d at 751. One might have thought that controversy was ended, at least in this appellate district, by this court's opinion in Ten Hagen, 435 S.W.3d at 871.

In Ten Hagen, we determined:

the interests of justice and the right of the parties to a fair trial requires that when a party asserts a physical ․ condition as part of a claim or defense, a trial court must be careful not to prevent the development of medical testimony that would allow the opposing party to fully investigate the conditions the party asserting the existence of a condition has placed in issue.

Id. at 867. But controversy continues to rage on when and whether trial courts should order Rule 204 examinations, resulting in three recent disputes reaching the Supreme Court on petitions for writ of mandamus. On each of these occasions, the court has conditionally granted the requested writ. See In re H.E.B. Grocery Company, L.P., 492 S.W.3d 300, 305 (Tex. 2016); In re Auburn Creek Ltd. P'ship, 655 S.W.3d 837, 844 (Tex. 2022); In re Sherwin-Williams Co. and Roberto Hernandez, 668 S.W.3d 368, 372 (Tex. 2023).

Rule 204 Requirements

Rule 204 provides a simple procedure for obtaining a physical examination.¹ First, the timing: the motion must be brought no later than 30 days before the end of the discovery period. TEX. R. CIV. P. 204.1(a). There are no other deadlines outlined in the rule, and case law has not appended any other deadlines to the rule. Unlike, for example, summary judgment proceedings, rule 204 does not have a deadline for filing evidence in support of the motion. Cf. TEX. R. CIV. P. 166a.

The rule then requires the movant must show “good cause” and that a party's physical condition is “in controversy.” TEX. R. CIV. P. 204.1(c). If the movant can satisfy these components, “the discretion vested in the trial court is for all practical purposes destroyed,” and the motion should be granted. Auburn Creek, 655 S.W.3d at 841 (quoting Ten Hagen, 435 S.W.3d. at 866).

The trial court abuses its discretion if the movant satisfies the requirements to obtain a Rule 204 motion and the motion is denied. H.E.B., 492 S.W.3d at 305. Because this abuse of discretion denies the moving party's expert an opportunity to fully develop and present his or her opinions, thereby ensuring a fair trial, there is no adequate appellate remedy for the denial. Id. at 304-05. The proper outcome is for this court to conditionally grant mandamus relief and direct the trial court to withdraw its order and grant relators' Rule 204 motion. See Id. at 304; Auburn Creek, 655 S.W.3d at 843; Sherwin-Williams Co, 668 S.W.3d at 372; Ten Hagen, 435 S.W.3d. at 862.

Rule 204 Applied to This Proceeding

Relators timely brought their rule 204 motion seeking a physical examination of both real parties. Further, on this record, relators meet and exceed the “good cause” and “in controversy” requirements under Rule 204, entitling them to a Rule 204 examination. The trial court clearly abused its discretion in denying the rule 204 examination, and this court should conditionally grant the requested writ.

Real parties are alleged underinsured motorists who seek past and future medical damages. They claim a combined $91,676.88 in past medical expenses and $1,300,374.46 in future medical expenses and have designated an expert witness – specifically a chiropractor – who has prepared a future cost projection which real parties intend to use at trial. Real parties' expert has had the chance to conduct a physical examination of real parties.

When determining the cost of past and future medical damages, one of the critical bases of evidence is expert testimony. H.E.B., 492 S.W.3d at 303. When a party uses expert testimony to prove the existence and extent of injuries, it places those alleged medical conditions “in controversy.” Id. Unquestionably, the physical condition of real parties is “in controversy.”

Relators have designated a countering expert and seek the same opportunity for their expert – i.e., an opportunity to examine real parties. Rule 204 provides that opportunity, and to that end relators filed a motion for an order for a medical examination by the expert.

Relators also established good cause for the examination by:

(1) show[ing] the requested examination is relevant to the issues in controversy and will produce or likely lead to relevant evidence, (2) establish[ing] a reasonable nexus between the requested examination and the condition in controversy, and (3) demonstrat[ing] that the desired information cannot be obtained by less intrusive means.

Id. The first two elements are satisfied by relators showing that real parties are seeking past and anticipated future damages for personal injury (including medical expenses, physical pain and suffering, physical impairment, loss of enjoyment of life, mental anguish, and loss of earning capacity) for which real parties plan to present expert testimony based on physical examination of the real parties' injuries.

Relators' expert provided an affidavit stating that real parties' expert has produced contradictory findings that cannot be properly assessed without a physical examination. This alone satisfies the “less intrusive means” element, because the relators' expert will not be able to testify to an accurate analysis of real parties' physical injuries without such an examination.

“[F]undamental fairness dictates that a defendant's expert be allowed to examine the plaintiff. Otherwise, the defendant will be at a significant disadvantage in the ‘battle of the experts.’ ” In re Redbird Trails Apartments, No. 05-20-00284-CV, 2020 WL3445811, at *3 (Tex. App — Dallas June 24, 2020, orig. proceeding, internal quotations omitted). For relators to not be in this disadvantaged position, and as required by Rule 204, relators' expert should be able to fully investigate the conditions that are at issue in this case.

Because relators showed both good cause for the examination and that real parties' physical condition is in controversy, the only proper exercise of the trial court's discretion was to grant the Rule 204 motion and order the medical examination.

Local Rule Deadlines

Real parties presented an argument to the trial court that relators' expert's affidavit was not timely filed per Dallas County Local Rules. DALLAS TEX. CIV. DIST. CT. LOC. R. 2.09. The argument is a red herring and, to the extent the trial court may have based the decision on this argument, a mistake of law, because:

1. Rule 204 does not require evidence in the form of affidavits or declarations to support the motion;

2. Rule 204 does not set any deadlines for the filing of evidence related to the motion; the only deadline in Rule 204 is that the motion be brought no later than 30 days before the end of the discovery period; and,

3. Local Rule 2.09 applies to briefs, responses, and replies, not to evidence presented in support of a motion.2

The Panel's Supplemental Opinion

In the supplemental memorandum opinion issuing along with the denial of the motion for reconsideration en banc, the panel compounds the problems presented by the panel's denial of the petition. The panel says we cannot assume the trial court considered the affidavit in denying the Rule 204 motion. Supp. Mem. Op. at 5. The record unequivocally demonstrates otherwise.

In the short hearing on the Rule 204 motion, the affidavit was mentioned 36 times. The trial court said “I saw the affidavit” before inviting relators' counsel to respond to real parties' objections to the affidavit. Relators' counsel responded with the local rules analysis outlined above. Real parties' counsel then questioned whether the affidavit had been accepted into the court's e-filing system. The court responded, “It is on the court's system.” After real parties' counsel's argument, which focused on the affidavit, the court then engaged counsel in a discussion whether the affiant doctor could be deposed if the court accepted the affidavit.

The trial court clearly “saw” the affidavit, and it was discussed at length at the hearing on the motion. If the trial court saw but did not consider the affidavit in ruling on the Rule 204 motion, the trial court abused its discretion in denying the motion. If the trial court considered the affidavit and denied the Rule 204 motion, the trial court abused its discretion in denying the motion. Either way, this court should reconsider the panel opinion and, upon reconsideration, conditionally grant the writ.

Conclusion

I am convinced “the trial court reasonably could have reached only one conclusion on these facts [and] clearly abused its discretion in denying the motion” sought per Rule 204. See Sherwin-Williams, 668 S.W.3d at 372. Further, the court has an obligation to uphold the precedent from this court. The panel opinion fails to follow Ten Hagen, and the en banc court continues that failure by refusing to reconsider the panel opinion. I would reconsider the panel opinion and, upon reconsideration, conditionally grant the writ. Because the court refuses to do so, I respectfully dissent from the order denying en banc reconsideration.

FOOTNOTES

1.   Although Rule 204 addresses mental examinations in addition to physical exams, I do not address mental examinations in this opinion because a mental examination of real parties is not at issue.

2.   I further do not believe an affidavit or declaration was needed in the first place. A review of relators' motion, including the various discovery products attached to the motion, established more than enough evidence for the good cause element even without the expert's affidavit.

MIKE LEE JUSTICE