Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—S.D. Tex.: Health company employee seeks $300M emotional distress damages, (Aug 20, 2025)

By WK Editorial Staff

Since the employee, who alleges racial discrimination, sought $300M in damages, and planned to present her own expert testimony, denying the exam request would be unfair, the court found.

A health company employee, allegedly subjected to racial discrimination, must submit to a mental health examination since her employer showed good cause for such an examination, a federal district court in Texas has ruled. The complaint alleged emotional distress from continued retaliation, discrimination, and harassment, and sought emotional distress damages of at least $300 million. The court found that the employer established that there was good cause to grant its motion for a Federal Rule of Civil Procedure 35 (Rule 35) examination and to extend the time for such an examination (Peters v. Banner Health, No. 4:24-cv-772 (S.D. Tex. Aug. 15 2025)).

Under Rule 35, courts may order a party whose mental or physical condition is in controversy to submit to a mental examination by a suitably licensed or certified examiner. The employee alleged that due to the continuous retaliation, discrimination, and harassment, she contemplated suicide. Additionally, her amended complaint sought damages for emotional pain and suffering and mental anguish.

Good cause. The court noted that “good cause” requires a showing of specific facts that demonstrate the need for the information sought and lack of means for obtaining it elsewhere. The court stated that the health company demonstrated good cause for a Rule 35 examination because the employee alleged “specific mental or psychiatric injur[ies]” beyond garden variety mental anguish. Also, the employee identified medical providers who would offer testimony to support her claim for emotional distress damages. Since treating physicians had been identified, and their testimony would support her claim for $300M in emotional distress damages, the court reasoned that denying the health company’s request for a Rule 35 examination would be patently unfair. Also, the fact that the health company already had her mental health records, declarations, and other paper-type evidence did not negate the health company’s good cause for an in-person exam.

Timeliness. The health company argued that the Rule 26(a)(2)(B) expert disclosure deadline did not apply to Rule 35 examinations, and even if it did, good cause exists to extend the expert deadline to allow for the Rule 35 examination. The court acknowledged that decisions have been split on the issue but agreed with the health company, noting that the court may alter the schedule for good cause. The court stated that, given the divergent case law, it would not penalize the health company for failing to request and conduct a Rule 35 examination prior to the Rule 26(a)(2)(B) deadline. The court also reasoned that mental examination, to be performed by a doctor identified by the health company, was “highly important” given the employee’s numerous medical experts who would testify on her behalf, and given her $300M claim. Allowing a period of time for the report to be reviewed would remove any prejudice to the former employee, the court stated.

The motion for a Rule 35 examination was granted, and to the extent that the employee moved for a Protective Order, her request was denied. The court also ordered a timeline for when the examination must take place, along with terms of the exam, and created a new scheduling order for the case.

The case is No. 4:24-cv-772.

Judge: Bryan, C.

Attorneys: Kisha Peters, pro se. Andrew Fox (Coppersmith Brockelman) for Banner Health d/b/a BHT Banner Health of Texas.

Companies: Banner Health; BHT Banner Health of Texas

Cases: EvidenceDiscovery RaceDiscrimination Discrimination Procedure Retaliation TexasNews