In re First Transit, Inc. (No. 01-23-00619-CV; April 23, 2024) arose from a personal injury suit in which Plaintiff alleges injuries received in a collision between a First Transit bus and a City of Houston Truck. Plaintiff was on a lift carriage mounted on the truck repairing a traffic light when the collision occurred. Plaintiff sued for negligence and vicarious negligence. First Transit requested that Plaintiff be examined by its retained expert. When Plaintiff refused, First Transit filed a motion to compel Plaintiff to submit to examinations of his alleged orthopedic and neurological injuries. The trial court denied the motion. First Transit sought mandamus relief.
In a per curiam opinion, the court partially granted the petition. First Transit argued that it was entitled to an independent examination of Plaintiff because the requested exam was “relevant to issues in controversy and will produce or likely lead to relevant evidence,” there was a “reasonable nexus between the requested examination and the condition in controversy; and “the desired information could not be obtained by less intrusive means.” The issue became whether First Transit could obtain the same information by deposing Plaintiff’s physicians or reviewing existing expert reports or records. Specifically, First Transit offered an affidavit from its neurology expert to the effect that “no physician had performed proper neurocognitive testing, and the testing that was performed was not the appropriate type of testing to diagnose a cognitive disorder.” Further, the expert opined that “[n]o cognitive disorder can be confirmed without performing in-person cognitive testing.” Reviewing this evidence, the court concluded that First Transit met its burden to show a “fair-trial standard for measuring the adequacy of the alternative means of obtaining the information could be be satisfied by deposing [Plaintiff’s providers] or by reviewing their records” (citations omitted).
As to First Transit’s request for an orthopedic examination, however, the court found no similar affidavit by the expert explaining why an independent examination was necessary when First Transit had Plaintiff’s expert’s deposition and medical records. It thus denied this part of First Transit’s petition. The court went on to hold that First Transit had no adequate remedy on appeal because the inability to conduct an independent neurological exam of Plaintiff wold severely compromise its defense.
