Texas Supreme Court orders fair fight in personal injury lawsuit

Discovery is the process by which each side in a lawsuit gets to know, before a trial, the knowledge possessed by the other side. And, sometimes, this knowledge will be shaped and offered at a trial. A new Texas Supreme Court case stresses yet again that our system’s legitimacy depends on a fair fight.

Accident

Marcos Acosta was injured in an automobile collision, and the other vehicle was driven by an employee of the Sherwin-Williams Company. He sued both the driver and the employer, claiming he was injured because of the driver’s negligence when using the company’s vehicle. He sought damages for medical expenses, physical pain, past and future lost earnings, and mental anguish.

Part of Acosta’s case on his damages was expert medical testimony from two doctors who examined him and performed surgery on his spine.

Expert witness dispute goes to Texas Supreme Court

Not unnaturally, Sherwin-Williams had its own expert witness, another spine surgeon. When the company requested that Acosta undergo an in-person medical exam by its expert, his counsel essentially exclaimed, “Oh no. You don’t need to do that. You have all his medical records, and that’s good enough!”

Sherwin-Williams asked the Bexar County trial court to order the examination, which it declined to do. The company then asked the San Antonio Court of Appeals to order the examination and was again denied. It then tossed a “Hail Mary” pass to the Texas Supreme Court, which finally agreed.

The court’s reasoning