Soto Davis v. Gunther et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
FLOR BERTI SOTO DAVIS,
Plaintiff,
v.
DALEENA LYNN GUNTHER and
CONTRACT FREIGHTERS, INC.,
Defendants.
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EP-25-CV-00130-DCG
ORDER
Before the Court is Defendants Daleena Lynn Gunther and Contract Freighters, Inc.’s
“Opposed Motion to Compel Physical Examinations under Federal Rule of Civil Procedure 35 of
Plaintiff, Flor Berti Soto Davis” [hereinafter “Mot.”], ECF No. 19, filed on December 2, 2025.
Senior United States District Judge David C. Guaderrama referred the motion to the undersigned
Magistrate Judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule 1(c) of
Appendix C to the Local Rules. See Order Refer. Mot. to U.S. Mag. J., ECF No. 20. As of the
date of this order, Plaintiffs have not filed a response to the Motion.1 For the reasons set forth
below, the Motion is GRANTED.
I. BACKGROUND
This case arises from a motor vehicle collision alleged to have occurred between vehicles
operated by Plaintiff Flor Berti Soto Davis and Defendant Daleena Lynn Gunther. Compl. ¶ 11–
16, ECF No. 4. In her Complaint, Plaintiff asserted negligence claims against Defendant Gunther,
as well as the owner of the vehicle, Defendant Contract Freighters, Inc., for bodily injuries she
1 While the Motion could be granted as unopposed, the Court nevertheless addresses the merits of the motion
in the interests of completeness. See Local Rule CV-7(d)(2) (“A response to a discovery or case management motion
shall be filed not later than 7 days after the filing of the motion.... If there is no response filed within the time period
prescribed by this rule, the court may grant the motion as unopposed.”).
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claims to have sustained as a result of the incident. Id. ¶ 13, 17–25. During the course of discovery,
Plaintiff testified that her injuries included “head, neck, back, left should [sic], and left wrist
injuries,” Mot. Ex. 3, Pl.’s Resps. Def.’s, First Set Interrogs. at 4 [hereinafter “Mot. Ex. 3”], ECF
No. 19–3, which required treatment via “several invasive procedures” to her spine, id. at 8, and
caused Plaintiff continuing discomfort in her neck and back, Mot. Ex. E, Tr. Oral & Videotaped
Dep. Flor Berti Soto Davis at 7, ECF No. 19–5. Plaintiff further stated that the accident resulted in
a concussion which led to cognitive impairments, including “reduced short-term memory, slowed
processing speed, impaired concentration, difficulty multitasking, and episodes of mental fatigue.”
Mot. Ex. 3, at 10.
In light of these allegations, Defendants now move for an order compelling Plaintiff to
submit to an orthopedic examination by Dr. Paul Saiz, an orthopedic surgeon, and a neurological
examination by Dr. Brigid Dwyer, a neurologist. Mot. ¶ 4.
II. DISCUSSION
Federal Rule of Civil Procedure 35(a) provides that a court may order a party to submit to
a physical examination where “the party’s physical condition is in controversy and good cause
exists for each examination,” so long as the examination is performed by a “suitably licensed or
certified examiner.”
First, “[a] plaintiff in a negligence action who asserts mental or physical injury . . . places
that mental or physical injury clearly in controversy and provides the defendant with good cause
for an examination to determine the existence and extent of such asserted injury.” Schlagenhauf v.
Holder, 379 U.S. 104, 119 (1964) (citing Sibbach v. Wilson & Co., 312 U.S. 1 (1941)). Thus,
given the nature of the suit and the damages sought, the Court finds Plaintiff’s physical condition
has been placed in controversy and there is good cause for the requested examinations.
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Second, Plaintiff has demonstrated that both doctors are board certified and have expertise
relevant to Plaintiff’s claimed injuries. See Mot. Ex. A, Curriculum Vitae of Paul Saiz, MD,
FAAOS, CIME, ECF No. 19–1; Mot. Ex. B, Curriculum Vitae of Brigid Dwyer, MD, ECF No.
19–2. Because Defendants do not otherwise argue that either expert is unfit, the Court finds the
identified doctors are suitable to perform the examinations. See Pierce v. Aveanna Healthcare,
LLC, No. 1:21-CV-00287-RP, 2023 WL 2764660, at *5 (W.D. Tex. Mar. 31, 2023) (quoting
Shadix-Marasco v. Austin Reg'l Clinic P.A., No. A-09-CA-891-LY-AWA, 2011 WL 2011483, at
*4 (W.D. Tex. May 20, 2011)) (recognizing courts generally “appoint the physician of the moving
party's choice unless the opposing party raises a valid objection to the physician”).
Accordingly, the Court finds Defendants are entitled to compel the requested examinations.
III. CONCLUSION
For the foregoing reasons Defendant’s Motion, ECF No. 19, is GRANTED.
The Court ORDERS Plaintiff to submit to an orthopedic examination by Dr. Saiz, to begin
at 9:00 A.M. on January 16, 2026, at 3 Crosses Orthopaedic Spine LLC, 4351 E. Lohman Ave.,
Suite 211, Las Cruces, New Mexico 88011.
IT IS FURTHER ORDERED that Plaintiff submit to a neurological examination by Dr.
Dwyer, to begin at 3:00 P.M. on January 17, 2026, at 1600 Airway Blvd., El Paso, Texas 79925.
SO ORDERED and SIGNED this 6th day of January, 2026.
ROBERT F. CASTAÑEDA
UNITED STATES MAGISTRATE JUDGE
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