Appeals court allows defendants to get second medical opinion in injury case

Steve Korris Jul. 31, 2008, 4:41am

Companies blamed for an illness are entitled to obtain a second opinion from a doctor of their choosing, the 9th District appeals court has ruled.

In the case of Thomas Posey, a doctor said he suffers from "reactive airways dysfunction syndrome.

Three appellate judges in Beaumont agreed July 17 that Jasper County District Judge Bob Golden abused his discretion when he denied defense requests for a separate examination of Posey.

The 9th District moved swiftly, responding to two orders Golden signed in May.

Posey alleges that as he sat in his vehicle he inhaled vapors from sodium hydroxide that a tanker truck spilled.

He sued Trimac Transportation, DSI Transports, tanker driver Edward Franklin and PPG Industries.

Posey's physician, Dr. Luigi Terminella, stated in an expert report and a deposition that Posey suffered from reactive airways dysfunction.

Defendants moved for Dr. Jeff Britton to examine Posey and test his lungs. Golden denied the examination.

On appeal, Chief Justice Steve McKeithen and Justices David Gaultney and Hollis Horton granted it.

"A physical examination is appropriate when the physical condition of a party is in controversy," they held in an unsigned opinion.

Posey clearly placed his condition at issue, they agreed.

"His claim includes a diagnosis of a medical condition the proof of which requires specialized medical testimony," they wrote.

Golden can place reasonable conditions on the examination, they wrote.

"However, a trial court may not prevent the development of medical testimony that would allow the defendant to fully investigate the conditions that the plaintiff has placed in issue," they wrote.

Leeann Kay and Mark Allen represent Trimac, DSI and trucker Franklin. A. M. Landry III represents PPG. Christopher Smith represents Posey.

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