Simmons v. Thompson

OPINION CORNELIUS, Chief Justice. Relator, the plaintiff in a breast implant damage suit, has filed a motion for leave to file a petition for writ of mandamus to compel the Honorable Jim Thompson, District Judge of the 62nd Judicial District, to [404] set aside his order- denying her request to be • accompanied by her attorney during a physical examination to be conducted pursuant to Tex.R.Civ.P. 167a. Relator has made no attempt to show a particularized need for her attorney’s presence at the scheduled examination. Instead, she contends that the issue is one of law rather than fact, .and that she has an absolute right as a matter of law to have her attorney present at the examination. Yet relator concedes that Rule 167a, which governs such examinations, grants no such right.. We conclude that, in the absence of any rule or statute, the right to have one’s attorney present- at a physical examination ordered pursuant to Rule 167a is a matter to be determined.within .the discretion of the trial court on a case-by-ease basis according' to evidence showing a particularized need therefor. As relator has produced no facts showing a need for the presence of her attorney, we conclude that she has failed to show a probable abuse of discretion on the part of the trial court, and therefore her petition and brief do not show that she is probably entitled to the relief sought in this proceeding. Because we are not of the tentative opinion that relator is probably entitled to the relief sought, the motion for leave to file petition for writ of mandamus is overruled. The stay issued by this Court is dissolved as of this date.