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In today’s current litigation climate, it is not unlikely that you will encounter claims of mental and emotional injury in addition to physical injury. And, as a result, it is also not unlikely that you will have to request mental examination of a party. This primer should serve as a helpful overview of some of the main considerations for securing mental or physical examinations.
Texas Rule of Civil Procedure 204.1 governs whether a movant may compel a physical or
mental examination of another party. Tex. R. Civ. P. 204.1. The trial court may grant a Rule 204.1 motion if the movant establishes that (1) “good cause” exists for the examination and (2) the mental or physical condition of the party “is in controversy” or 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.”
This primer will briefly cover the first requirement: good cause.
“The purpose of Rule 204.1’s good-cause requirement is to balance to movant’s right to a fair trial and the opposing party’s right to privacy.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016). To show “good cause” under Rule 204.1(c), the movant must,
(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 the desired information cannot be obtained by less intrusive means. Id.
Concerning the first good cause element (“relevance”), information is relevant if it “relates to the claim or defense of the party seeking discovery.” Tex. R. Civ. P. 192.3(a). Thus, if the sought-after examination seeks information concerning the party’s claimed injuries, such examination would be relevant to issues in controversy. Relevance alone, however, is not enough to satisfy good cause and so we must satisfy the remaining two elements. In re Ten-Hagen Excavating, Inc., 435 S.W.3d 859, 868-69 (Tex. App.—Dallas 2014, orig. proceeding). Nevertheless, it is important to note that the Texas Supreme Court has held that if a plaintiff intends to use expert medical testimony to prove his/her mental condition, the plaintiff has placed that condition in controversy and the defendant would have good cause as a matter of law. In re H.E.B. Grocery Co., 492 S.W.3d at 300; Tex. R. Civ. P. 204.1(c)(1).
Turning to the second element (“reasonable nexus”), to show this, the party seeking the examination must provide more than conclusory allegations and show the court more than just relevance to the case. In re Auburn Creek L.P., 655 S.W.3d 837 (Tex. 2022). A reasonable nexus exists when there is a “reasonable connection” between the condition at issue and the examination sought. In re Ten-Hagen Excavating, Inc., 435 S.W.3d at 869. It may be difficult to establish this reasonable connection where a party is seeking to conduct a long list of tests. Recently, Texas Supreme Court, in In re Auburn, analyzed this exact issue. The Court ultimately found that there was a reasonable nexus due in large part to the expert’s affidavit explaining why he could not narrow down the list of possible tests for reasons such as his inability to estimate what tests would be best without first speaking with the examinee.
The third element of good cause (“less intrusive means”) addresses whether the desired information “is required to obtain a fair trial and therefore necessitates intrusion upon the privacy of the person he seeks to have examined.” See Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988) (original proceeding). These less intrusive means of obtaining medical or psychological information may include deposing the party's doctors and attempting to obtain copies of medical records or relying on existing expert witness reports already filed in the case. However, in many cases, physician’s notes, medical records, expert reports, and deposition testimony are inadequate compared to the information that could be gained through a full examination. In these cases, an examination can be obtained…if good cause is otherwise shown. In re Grohman, 640 S.W.3d 347, 351 (Tex. App.—San Antonio 2022, orig. proceeding).
Obtaining an order for a mental or physical examination of the opposing party requires coordination with the retained expert as to the necessity of the requested examination, particularly as to scope, in order to ensure that the good cause element is satisfied.
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