AUSTIN, Texas (Legal Newsline) - An apartment company has the right to have its own medical expert examine six family members who claim they were exposed to carbon monoxide gas and are seeking $33 million in damages, the Texas Supreme Court ruled.
The high court’s decision in a rarely granted mandamus petition reversed a Bexar County trial judge’s order striking the defense’s expert in part because he wasn’t able to examine the plaintiffs, leaving only the plaintiff’s expert to testify at trial.
The Pau family sued Auburn Creek L.P., the Lynd company and others over injuries they say they suffered due to the carbon monoxide leak. The Paus hired Dr. Nadia Webb as their medical expert and she completed more than 20 tests on the plaintiffs.
Auburn Creek designated Dr. Gilbert Martinez as its medical expert and he filed preliminary reports on the plaintiffs based only on examining their medical records. On June 1, 2021, the company filed a motion to compel additional testing, including an affidavit from Dr. Martinez saying he needed to perform as many as 53 tests on the parents and 23 tests on the children to form an opinion about whether they had suffered injury.
The Bexar County trial judge rejected the motion, saying the list of tests wasn’t specific enough. Dr. Martinez refiled on July 15 with a smaller number of tests, saying he couldn’t reduce it further because informing the plaintiffs in advance of which tests he would perform could produce bias and error. The trial court held a hearing on the motion Sept. 2, then denied it, saying the doctor’s list was still too large and the proposed examinations would extend beyond the Sept, 7 discovery deadline.
The judge also agreed to strike Dr. Martinez as an expert, since he had told the court he couldn’t offer a medical opinion without examining the patients in person.
Auburn Creek appealed to the Texas Supreme Court, which reversed the judge’s order in a Dec. 2 opinion.
In opposition, the plaintiffs argued Auburn Creek waited too long to seek its own exams. The Texas Supreme Court disagreed, saying Auburn filed its motion to compel the medical exams on June 1, well before the 30-day deadline before the end of discovery. The court didn’t hold a hearing until Sept. 2, but the delay was partly due to scheduling conflicts for the plaintiff lawyers.
The plaintiffs’ expert performed 27 different tests on the children, the Supreme Court said, and “Auburn Creek seeks a similar opportunity,” the court ruled. Dr. Webb personally examined the plaintiffs, performed 27 tests on the children and will testify at trial, the court observed. Yet the trial judge barred Dr. Martinez from testifying unless he conducted his own exam.
“In other words, absent an exam, Auburn Creek would lose the battle of the experts,” the court concluded.