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In most personal injury cases, it is usually the plaintiff’s treating doctors who have first-hand, personal contact with the plaintiff, as compared with most defense expert doctors who base their opinions on a review of plaintiff’s medical records. However, the Texas Rules of Civil Procedure – specifically, Rule 204.1 – allow for a defense expert doctor to conduct an independent medical exam (IME) of the plaintiff under certain circumstances including where the plaintiff’s physical and/or mental condition is in issue. The Texas Supreme Court recently addressed both the timing and substantive hurdles a defendant must meet in order to secure an IME of the plaintiff.

Motion to Compel an IME in Auburn Creek

On December 2, 2022 , in In re Auburn Creek Limited Partnership, 655 S.W.3d 837 (Tex. 2022), the Texas Supreme Court held that a Texas trial court abused its discretion in failing to allow an IME to go forward and in striking the defense expert, in part, for his inability to offer certain opinions without the IME. At issue in Auburn Creek were the plaintiffs’ alleged neuropsychological damages stemming from alleged exposure to carbon monoxide while residents of an apartment complex. In its mandamus opinion, the Court held that defendants’ motion to compel the IME was timely as it was filed more than “30 days before the end of [the] applicable discovery period.” Rule 204.1(a).

In addressing the substantive right to an IME, the Court, while acknowledging that the plaintiffs have rights of privacy that must be balanced against the defendants’ right to a fair trial, held that defendants met the rule’s “good cause” requirement by showing that: (1) the requested neuropsychological IME was relevant to an issue in controversy (plaintiffs’ alleged damages) and that the IME was likely to lead to relevant evidence; (2) there was a reasonable connection between the requested examination and plaintiffs’ condition in controversy; and (3) the desired information could not be obtained by less intrusive means. Thus, the Court held that in this case it was error for the trial court to deny the defendants’ neuropsychological expert an opportunity to examine and test the plaintiffs concerning their claimed neuropsychological deficits allegedly sustained from carbon monoxide exposure while they were tenants in defendants’ apartment complex. Finally, although the right to an IME of a plaintiff is not automatic, if the defendant timely requests it and establishes “good cause,” the trial court should allow the IME to go forward.


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Jonathan M. Spigel is a Shareholder and member of the Cowles and Thompson Tort Litigation Practice Group.