2020 Environmental Real Estate Issues

Several family members sued their apartment owner, claiming brain injuries from carbon monoxide exposure. The apartment owner requested that a doctor it chose be allowed to conduct examinations and testing of the plaintiffs. The apartment owner claimed it could not adequately respond to the plaintiffs’ allegations of causation and extent of injuries without its own doctor’s neuropsychological analysis of the plaintiffs.

Trial Court Refuses Defense Request
The trial court refused to order the plaintiffs to be examined by the defense doctor. Moreover, the trial court limited the testimony the defense doctor could give at trial, in part because the defense doctor admitted he could not testify on some topics because he had not conducted his own examination.
The apartment owner filed a mandamus proceeding, seeking an order requiring the trial court to order the plaintiffs be examined by the defense doctor. An intermediate appellate court denied the request for mandamus. The apartment owner then successfully appealed to the Supreme Court of Texas, which determined the trial court abused its discretion in not ordering the plaintiffs to be examined by the defense doctor.

Least Intrusive Method to Get Relevant Evidence
The Court said the plaintiffs’ neuropsychological conditions were clearly at issue, the examination and tests sought by the apartment owner would provide relevant information, and the doctor’s examination was the least intrusive method available for the apartment owner to get the evidence. Also, a doctor designated as a plaintiffs’ expert witness had examined and performed tests on all the plaintiffs; the Court said allowing the apartment owner’s lawyer to take the deposition of the plaintiffs’ expert doctor would not be adequate for the defense doctor to formulate opinions.

To see the opinion https://www.txcourts.gov/media/1455392/210886pc.pdf