In Re Boerne Hotel, Ltd. D/B/A the Bevy Hotel, Boerne Hotel General Partner, LLC, and Phoenix Hospitality Boerne, LLC v. the State of Texas ( 2024 )

NUMBER 13-23-00437-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE BOERNE HOTEL, LTD. D/B/A THE BEVY HOTEL, BOERNE
HOTEL GENERAL PARTNER, LLC, AND PHOENIX HOSPITALITY
BOERNE, LLC
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Justice Peña1
By petition for writ of mandamus, relators Boerne Hotel, Ltd. d/b/a The Bevy Hotel,
Boerne Hotel General Partner, LLC, and Phoenix Hospitality Boerne, LLC seek to compel
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
the trial court 2 to vacate an order granting their motion to compel a medical examination
as part of discovery in a personal injury suit. See TEX. R. CIV. P. 204.1 (stating that
physical and mental examinations may be ordered as part of discovery for good cause).
Specifically, relators argue that the order is erroneous to the extent that it requires the
examination to be video and audio recorded, limits the examination to a five-hour period,
and requires the examining physicians to disclose the specific tests that they will
administer prior to the examination. We conditionally grant relief in part and deny in part.
I. BACKGROUND
Real parties in interest Leticia and Jorge Peña filed suit against relators, Alamo
System Industries, LLC, and Alfaro Clemente d/b/a Alfaro’s Carpeting 3 alleging that
Leticia tripped and fell on a “dangerous expansion joint cover” at The Bevy Hotel in
Boerne, Texas. The Peñas asserted that Leticia fell “head-first onto the floor” rendering
her unconscious, that she “incurred a traumatic brain injury,” and that she consequently
“suffer[s] from impaired cognitive function.”
Relators filed a “Joint Motion to Compel [an] Independent Medical Examination”
for Leticia. 4 According to their joint motion, the Peñas’ physician Dr. Amy Duckwall
examined Leticia and concluded that she suffered “a [m]ild [n]eurocognitive [d]isorder”
that was “likely related to a traumatic brain injury she sustained from the incident giving
rise to this lawsuit.” Dr. Duckwall recommended that Leticia obtain further treatment for
2 This cause arises from trial court cause number C-4095-21-J in the 430th District Court of Hidalgo
County, Texas, and the respondent is the Honorable Israel Ramon Jr. See id. R. 52.2.
3 The name of this defendant appears in the record as Alfaro Clemente d/b/a Alfaro’s Carpeting,
Clemente Alfaro d/b/a Alfaro’s Carpets, and Clemente Alfaro d/b/a Alfaro’s Carpeting.
4 Rule 204 does not use the term “independent,” and the term is a misnomer insofar as the rule
contemplates a compelled clinical examination performed at the behest of one party for litigation purposes.
See TEX. R. CIV. P. 204.1.
2
her injury in the form of further consultations, a neuropsychological reevaluation,
individual counseling sessions, and cognitive rehabilitation therapy.
Relators alleged that the Peñas had offered Dr. Duckwall’s opinions and expert
report to support their contentions regarding causation and damages, and thus a Rule
204 examination would be relevant to the issues in controversy, was supported by good
cause, and was required by fundamental fairness. See id. Relators stated that they had
retained clinical neuropsychologist Dr. Gilbert Martinez and psychiatrist Dr. Christopher
Ticknor to examine Leticia and they requested the trial court to order Leticia to undergo
their proposed examination. Relators supported their joint motion with affidavits from Drs.
Martinez and Ticknor. Dr. Martinez testified in relevant part:
3. I conduct evaluations to characterize behavioral and cognitive
changes and treat patients if [indicated]. I have been retained by
counsel for [relators] to evaluate [Leticia’s] alleged claim of cognitive
impairment stemming from her fall that forms the basis of this lawsuit,
including the existence, cause, nature, extent, and proper treatment
for those injuries, if any. I have reviewed extensive medical records
regarding [Leticia], including, but not limited to, the reports of Dr.
Duckwall, which includes her assessment techniques, relevant
observations, testing results and observations, summary of results,
and diagnostic impressions.
4. For me to provide a comprehensive analysis of [Leticia’s]
neuropsychological conditions as they relate to the incident made the
basis of this suit, I request the opportunity to perform an interview,
neuropsychological evaluation, and administer standard
neuropsychological tests that are in common use by
neuropsychologists. This examination would take place in one day
and would include paper and pencil testing and tasks, and clinical
interviewing. The actual examination time will be approximately eight
(8) hours, depending on [Leticia’s] cooperation and speed in taking
the tests and filling out the evaluation forms. . . .
....
6. Notwithstanding the fact that [Leticia] has undergone
neuropsychological testing with Dr. Duckwall in January 2020,
3
conducting my own neuropsychological examination of [Leticia] will
assist me in my assessment of her current psychological and
neuropsychological condition and will assist me in my determination
of whether and to what extent [Leticia] has sustained any
psychological or neurocognitive impairment, the likely cause of any
such impairment, and any future treatment. Conducting my own
neuropsychological examination allows me to administer a battery of
tests of my choosing based upon my review of the medical records
and other documents in this case, and based upon my assessment
from an in person clinical interview of [Leticia] in which I would
directly interact with [Leticia] and make my own first-hand behavioral
observations, and ask my own questions and follow up questions
taking into account my behavioral observations made during the
interview.
7. Furthermore, I do not believe the assessments performed by Dr.
Duckwall meet current interpretive standards as described by the
American Academy of Clinical Neuropsychology and the American
Psychological Association. . . . Accordingly, additional testing is
needed due to the insufficient nature of Dr. Duckwall’s test protocol.
8. I have also considered the fact that [Leticia] has already undergone
neuropsychological testing by Dr. Duckwall and any potential
“practice effects,” and based upon my training and experience, I will
limit the possible impact of practice effects using alternate forms, and
different measures to assess cognitive domains or, when applicable,
by statistically accounting for any expected practice based on
information provided in respective test manuals.
9. My examination would consist of a clinical interview and
psychometric testing, which includes performance and symptom
validity testing, cognitive testing, and assessment of emotional
functioning in accordance with the guidelines provided by the
American Psychological Association and American Academy of
Clinical Neuropsychology. All tests utilized will be standardized (e.g.,
provided in the same manner across examinees) and will have
proven reliability and validity based on research and professional
practice guidelines. . . . The tests will be chosen from the instruments
listed below:
Neuropsychological Assessment Battery (NAB)
Personality Assessment Inventory (PAI)
Wechsler Memory Scale - IV
Wechsler Adult Intelligence Scale - Fourth Edition
Advanced Clinical Solutions for the WAIS-IV/WMS-IV subtests
Wisconsin Card Sorting Test
4
Green’s Word Memory Test (WMT)
Delis-Kaplan Executive Functions Test (D-KEFS)
Wide Range Achievement Test - 4
Grooved Pegboard Test
Category Test
Repeatable Battery for the Assessment of Neuropsychological
Status
Rey 15 Item Memory Task
Rey-Osterrieth Complex Figure Test
CNS Vital Signs
Digit Vigilance
Structured Inventory of Malingered Symptomatology (SIMS)
Ruff[ ]2 & 7 Selective Attention Test
California Verbal Learning Test – 2
Modified Somatic Perceptions Questionnaire
Connors Continuous Performance Test (CPT-2)
Test of Memory Malingering (TOMM)
Trauma Symptom Inventory - 2
Paced Auditory Serial Addition Test
Minnesota Multiphasic Personality Inventory-2-RF (MMPI-2-RF)
Dementia Rating Scale - 2
Manual Finger Tapping Test
Wide Range [Achievement] Test - Fourth Edition (WRAT-4)
Medical Symptom Validity Test (MSVT)
Grip Strength
Judgment of Line Orientation
Line Bisection Test
Clock & Cross Drawings
Verbal Selective Reminding Test
Multilingual Aphasia Examination
Dot Counting Test
Neurobehavioral Symptom Inventory (NSI)
Victoria Symptom Validity Test (VSVT)
Verbal Fluency Measures
Mesulam Letter Cancellation Test
Trail Making Test
Beck Depression Inventory – 2
Behavior Rating Inventory of Executive Function – Adult
I cannot otherwise list or identify the specific tests to be provided to
[Leticia] by name because this would provide information to [her] that
could bias her report and performance during my examination.
Providing a patient with prior knowledge of the testing introduces a
potential source of error in the assessment process and would be
inappropriate. There is consensus among clinical
neuropsychologists that the names of the tests to be administered to
5
a patient should not be provided in advance. Providing a list of the
standardized tests to be administered during my evaluation of
[Leticia] ahead of time would allow [her] the opportunity to prepare
since considerable information about these tests is now available
online, which would be a potential source of error in the assessment
process. Moreover, I cannot predict which psychological and
neuropsychological instruments I will include in the battery until I
have completed my clinical interview and listened to [Leticia’s]
current symptoms and concerns. It is standard practice of clinical
neuropsychologists to withhold from both clinical patients and
individuals that are seen as part of a legal proceeding the testing
information prior to the evaluation. Thus, these details will be
included in my report from my examination rather than in this
affidavit.
10. My clinical interview of [Leticia] will assess her personal recollection
of the incident, her immediate and ongoing symptoms and
complaints, and her medical, psychiatric, and social history. This
clinical interview will also address any interval change since Dr.
Duckwall’s examinations. . . . The clinical interview portion would also
involve psychiatrist, [Dr. Ticknor]. Dr. Ticknor’s participation in the
clinical interview portion of the examination would further assist me
in identifying the specific neuropsychological tests to be
administered to [Leticia]. . . .
....
12. My testing of [Leticia] must be conducted without the presence of a
third party, either in person, or by videotape or audiotape. An
examinee who is aware that he or she is being observed by a third
party, either in person, or by videotape or audiotape, may alter his or
her behavior or affect performance, and as a result, affect the validity
of the test results. Additionally, recording of testing is not permitted
in conjunction with professional guidelines and position statements
from the National Academy of Neuropsychology, the American
Psychological Association, and other national neuropsychological
organizations stating that testing be conducted in a secure manner
that does not comprise the validity of the test, and test publishers
advise that content of tests administered are trade secrets. In
addition, the American Academy of Clinical Neuropsychology
provides practice guidelines for neuropsychological assessment and
consultation. Those practice guidelines require clinicians, such as
me, to safeguard and protect the proprietary aspects of standardized
psychological and neuropsychological instruments due to the
significant time and expense associated with standardizing those
instruments. However, the clinical interview portion of the
6
examination may be audiotaped or videotaped at the discretion of Dr.
Ticknor.
Dr. Ticknor’s affidavit provided, in relevant part:
3. I conduct evaluations to assess psychiatric and neuropsychological
factors, personality traits, somatization disorders, and possible
psychopathology. I have been retained by [relators] to evaluate
[Leticia’s] alleged claim of cognitive impairment stemming from a fall
that forms the basis of this lawsuit, including the existence, cause,
nature, extent, and proper treatment for those injuries, if any. I have
reviewed extensive medical records regarding [Leticia], including,
but not limited to, the reports of Dr. Duckwall, which includes her
assessment techniques, relevant observations, testing results and
observations, summary of results, and diagnostic impressions.
4. For me to provide a comprehensive analysis of [Leticia’s] psychiatric
and psychological condition as it relates to the incident made the
basis of this suit, I request the opportunity to perform my own
evaluation of [Leticia]. My portion of the requested examination will
be conducted with a clinical neuropsychologist and last no more than
2 to 2 ½ hours. The examination will not be invasive nor will it include
any diagnostic laboratory tests or a physical examination. [Leticia]
will not be required to disrobe during the requested examination nor
will blood be drawn or x-rays taken.
....
6. Notwithstanding the fact that [Leticia] has undergone
neuropsychological testing with Dr. Duckwall in January 2020,
conducting my own evaluation of [Leticia] will assist me in my
assessment of her current psychological condition and will assist me
in my determination of whether and to what extent [Leticia] has
sustained any psychological or neurocognitive impairment, the likely
cause of any such impairment, and any future treatment. Conducting
my own evaluation allows me to administer a battery of tests of my
choosing based upon my review of the medical records and other
documents in this case, and based upon my assessment from an in
person clinical interview of [Leticia] in which I would directly interact
with [Leticia] and make my own first-hand behavioral observations
and ask my own questions and follow up questions taking into
account my behavioral observations made during the interview.
7. My clinical interview and mental status examination would be
conducted jointly with neuropsychologist [Dr. Martinez], and would
7
further assist him in identifying the specific neuropsychological tests
to be administered to [Leticia].
....
9. My examination of [Leticia] must be conducted without the presence
of a third party, either in person, or by videotape. The clinical
interview portion of the examination may be audio recorded but not
videorecorded. An examinee who is videorecorded is aware she may
be observed by a third party in the future and may find the video
recording distracting or intrusive. Videotaping may lead some people
to alter [their] behavior or affect performance, and as a result, affect
the validity of the clinical interview results. Additionally, recording of
neuropsychological testing is not permitted in conjunction with
professional guidelines and position statements from the National
Academy of Neuropsychology, the American Psychological
Association, and other national neuropsychological organizations
stating that testing be conducted in a secure manner that does not
comprise the validity of the tests. Test publishers also advise that
content of tests administered are trade secrets. In addition, the
American Academy of Clinical Neuropsychology provides practice
guidelines for neuropsychological assessments and consultation.
Those practice guidelines require clinicians, such as me, to
safeguard and protect the proprietary aspects of standardized
psychological and neuropsychological instruments due to the
significant time and expense associated with standardizing those
instruments.
The Peñas filed a response to relators’ joint motion opposing the examination in
its entirety on grounds that relators had not established good cause for the examination.
See id. In the alternative, the Peñas asserted that an examination, if any, should be limited
to four hours in duration, that Drs. Martinez and Ticknor should be required to specify the
tests to be performed in advance, and that the examination should be videotaped and
audio recorded. The Peñas included several exhibits in their response, including a portion
of a statement from the National Academy of Neuropsychology differentiating the
responsibilities of neuropsychologists who administer clinical exams from those who
8
administer court-ordered exams, which they asserted supported their request that the
examination be recorded. 5
Relators filed a reply to the Peñas’ response, contending among other matters,
that the Peñas were seeking approximately $1,653,518 in future medical expenses and
good cause had been shown for the examination.
The trial court held a non-evidentiary hearing on relators’ joint motion to compel
and took the matter under advisement. On October 2, 2023, the trial court signed an order
granting relators’ motion which generally stated that “[t]he manner, conditions[,] and
scope of the examination shall be as described” in Drs. Martinez and Ticknor’s affidavits.
However, the order limited the examination to five hours in duration, required Drs.
Martinez and Ticknor to specify the tests they intended to perform in advance of the
examination, and ordered the examination to be both videotaped and audio recorded.
This original proceeding ensued. Relators assert by three issues that: (1) the trial
court abused its discretion “by imposing unwarranted and improper video and audio
recording requirements for the exam”; (2) the trial court abused its discretion by ordering
5 The excerpt provides:
Requests to have independent and other forensic neuropsychological examinations
observed by an interested party or recorded in an audio or video format are common. In
some jurisdictions, examinees have a statutory right to have their independent
examinations observed or recorded. Observation by an involved third party and recording
of a neuropsychological examination are problematic and raise complex issues, such as
whether the results could be invalidated and how test security will be maintained. The
National Academy of Neuropsychology (NAN) position paper on third party observers, as
well as that of the American Academy of Clinical Neuropsychology (AACN), apply in this
context . . . . Forensic examiners who receive such requests need to be knowledgeable of
the relevant issues and are encouraged to respond only after careful consideration.
Shane S. Bush, Independent and court-ordered forensic neuropsychological examinations: Official
statement of the National Academy of Neuropsychology, 20 ARCHIVES CLINICAL NEUROPSYCH. 997, 1000
(2005).
9
Drs. Martinez and Ticknor “to disclose the battery of tests in advance and requiring the
exam to be completed within five hours—conditions that were not equally imposed” on
Dr. Duckwall; and (3) they lack an adequate remedy by appeal to address these errors.
Relators further filed with this Court an emergency motion for temporary relief requesting
to stay the examination and trial court proceedings pending the resolution of their petition
for writ of mandamus.
This Court granted relators’ emergency motion, stayed the underlying
proceedings, and requested the Peñas, or any others whose interest would be directly
affected by the relief sought, to file a response to the petition for writ of mandamus. See
TEX. R. APP. P. 52.2, 52.4, 52.8. Real party in interest Alamo System Industries, LLC filed
a first amended response to the petition for writ of mandamus stating that it agrees with
the relief sought by relators. The Peñas filed a response asserting that the trial court’s
limitations were reasonable. 6 Relators have filed a reply in support of their contentions in
this original proceeding.
II. STANDARD OF REVIEW
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
6 The Peñas subsequently filed a motion requesting that we lift our stay, in part, to allow for “fact
discovery” pending the resolution of this original proceeding. Relators filed a response in opposition to this
motion asserting that partially lifting the stay would “lead to confusion,” “prejudice [r]elators’ ability to
conduct proper discovery,” and “deprive [r]elators of the benefits of their medical experts’ opinions during
the course of discovery and thus their ability to develop their defenses” in the lawsuit. We agree with
relators. In any event, because we are presently disposing of the petition for writ of mandamus, we dismiss
the Peñas’ motion as moot.
10
court abused its discretion, and (2) the relator lacks an adequate remedy by appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it acts with
disregard for guiding rules or principles or when it acts in an arbitrary or unreasonable
manner. In re Garza, 544 S.W.3d at 840. We determine the adequacy of an appellate
remedy by balancing the benefits of mandamus review against the detriments. In re
Acad., Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding); In re Essex Ins., 450
S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of
Am., 148 S.W.3d at 136.
III. RULE 204 EXAMINATIONS
Under the rules of civil procedure, a trial court may compel a party to submit to a
mental or physical examination as part of discovery “only for good cause shown” and
“when the mental or physical condition . . . of a party . . . is in controversy.” TEX. R. CIV.
P. 204.1(c)(1). The “good cause” requirement “balance[s] the movant’s right to a fair trial
and the other party’s right to privacy.” In re Sherwin-Williams Co., 668 S.W.3d 368, 371
(Tex. 2023) (orig. proceeding) (per curiam) (quoting In re H.E.B. Grocery Co., 492 S.W.3d
300, 303 (Tex. 2016) (orig. proceeding)). 7 In order to establish good cause:
[T]he movant must show that (1) the examination is relevant to the issue in
controversy and is likely to lead to relevant evidence, (2) there is a
“reasonable nexus between the examination and the condition in
7 In terms of the fair trial standard, we note that “[t]he proper objective of [the] rules of civil procedure
is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established
principles of substantive law.” TEX. R. CIV. P. 1. “And basic to the right to a fair trial—indeed, basic to the
very essence of the adversarial process—is that each party have the opportunity to adequately and
vigorously present any material claims and defenses.” Sw. Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 437
(Tex. 2000).
11
controversy,” and (3) the desired information “cannot be obtained by less
intrusive means.”
In re Sherwin-Williams Co., 688 S.W.3d at 371 (quoting In re H.E.B. Grocery Co., 492
S.W.3d at 303.
“When the existence, extent, and cause of an injury are in controversy, an exam
intended to glean information regarding those issues will satisfy the relevance
requirement.” In re Auburn Creek Ltd. P’ship, 655 S.W.3d 837, 841–42 (Tex. 2022) (orig.
proceeding) (per curiam). To show a reasonable nexus, the movant is required to provide
more than “conclusory allegations” and “mere relevance to the case,” but must instead
provide “evidence that the requested examination ‘directly relates to the condition in
controversy.’” Id. (quoting In re H.E.B. Grocery Co., 492 S.W.3d at 303); see Coates v.
Whittington, 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding). We measure whether
the movant has shown that the examination would be the least intrusive means to
discover the required information by the fair trial standard, and we consider “the
importance of the discovery sought and the ability to find it elsewhere,” particularly
considering “whether the exam is likely to reveal information necessary to assess the
complained-of injuries beyond what could be obtained from reviewing any medical
records available to the expert.” In re Auburn Creek Ltd. P’ship, 655 S.W.3d at 842.
If the movant meets its burden to show good cause and the trial court grants the
motion for an examination, the trial court’s order “must be in writing and must specify the
time, place, manner, conditions, and scope of the examination and the person or persons
by whom it is to be made.” TEX. R. CIV. P. 204.1(d). The trial court possesses discretion
to place reasonable limits on an examination and exercises this discretion with reference
to the fair trial standard. In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d 1, 10,
12
11 (Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding); In re Offshore Marine
Contractors, Inc., 496 S.W.3d 796, 803 (Tex. App.—Houston [1st Dist.] 2016, orig.
proceeding).
IV. ANALYSIS
Relators contend that the trial court abused its discretion by requiring audio and
video recording of the examination, limiting its duration to five hours, and requiring Drs.
Martinez and Ticknor to disclose the tests that they would perform in advance. Relators
assert that these “requirements are not authorized under Texas law[,] are unworkable,
improperly favor the Peñas, invade the province of qualified experts, and prevent
[relators] from being able to defend [themselves] at trial against the Peñas’ damages
claims.” Relators assert that the “order’s improper requirements and limitations essentially
deny [relators’] right to an examination and contravene this Court’s prior holdings.” The
Peñas assert generally that these conditions are reasonable and within the trial court’s
discretion.
A. Recording
We first address that part of the trial court’s order requiring the examination to be
audio taped and videorecorded. Citing our decision in Society, relators assert that the
Peñas were required to show that special circumstances necessitated video and audio
recording of the examination, yet they failed to do so, thus the trial court abused its
discretion in requiring this condition for the examination. See In re Soc’y of Our Lady of
Most Holy Trinity, 622 S.W.3d at 18. The Peñas argue, in contrast, that Society is
distinguishable, but if we determine otherwise, we should reconsider our decision in that
case.
13
In Society, we held that a party seeking to have an examination recorded must
show “special circumstances or a particularized need” for the recording “supported by
evidence including specific facts amounting to good cause,” and we determine whether
this burden has been met on a case-by-case basis. Id. at 17–18. Under this standard,
“generalized concerns about accuracy, reliability, and methodology for the examination
do not constitute good cause for recording,” nor does
the inherently adversarial nature of the examination, the fact that the
examining physician was selected or paid for by opposing counsel, the
theoretical potential for misconduct during the examination, the desire to
obtain an accurate, dispute-free version of what was said, or the fear that
the examination would become a de facto deposition.
Id. at 15. This standard is based on cases construing the analogous federal rule regarding
examinations conducted for litigation. See id. at 12–15; see also Coates, 758 S.W.2d at
751 (explaining that the predecessor rule to Rule 204.1 was derived from Federal Rule of
Civil Procedure 35 and that “[f]ederal courts’ construction of Rule 35 is thus helpful to an
analysis of [Rule 204]”). We found this approach consistent with Texas law and the fair
trial standard. See In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d at 15–16.
Because the proponent of recording in that case did not demonstrate good cause, we
held that the trial court abused its discretion in requiring the examination to be recorded.
Id. at 18–19.
The Peñas assert that Society is distinguishable from this case because in Society,
the proponent of recording the examination did not present evidence that “called into
question the conclusory statements made by the defense experts there to the effect that
examinations should not be recorded,” but here, the Peñas presented evidence that the
examination to be conducted by Drs. Martinez and Ticknor would be litigation-driven and
14
would not give rise to a clinician-patient relationship in which recording the examination
would be inappropriate. The Peñas assert that by presenting this evidence, they shifted
the burden to relators to show that the examination should not be recorded. The Peñas
assert that relators failed to carry that burden because, inter alia, relators’ contention that
recording might alter Leticia’s examination results is based on mere speculation.
We disagree with the Peñas’ assertions. Fundamentally, on these facts, Society is
not distinguishable. All examinations conducted pursuant to Rule 204 are litigation-driven,
and such examinations are not recorded as a matter of course. Further, we have already
rejected the contention that the adversarial nature of such an examination alone
constitutes good cause for recording. See id. We thus reject the Peñas’ contentions that
Society is distinguishable, or that relators otherwise bore the burden to show that the
examination should not be recorded. 8
We turn our attention to the Peñas’ policy arguments for revisiting our precedent.
They assert that recording the examination will protect the parties’ right to a fair trial and
that recording prevents any disputes regarding the results of the examination,
discourages gamesmanship, and mitigates the potential for abuse of the examination.
The Peñas further argue that:
Numerous legislatures and courts across the county have recognized these
varied interests militating in favor of the recording of defense-driven medical
examination[s] in the course of litigation and have required that they be
recorded or otherwise be overseen by someone other than the examinee
and the expert conducting the examination.
8 The hearing on the motion to compel was not evidentiary. Based on our review of the Peñas’
response and exhibits, nothing therein could be construed as good cause for recording the examination.
15
The Peñas essentially urge us to reconsider Society and “align Texas law with the
supermajority of states that have considered the issue and make recording the default”
procedure for Rule 204 examinations. 9
While we appreciate the policy concerns raised by the Peñas regarding the
challenges inherent in examinations conducted for litigation purposes, we decline to
accept the Peñas’ invitation to depart from our precedent. The Peñas offer neither
persuasive nor controlling authority in support of altering our approach, and in fact, other
Texas cases have adopted our approach in Society. See In re UV Logistics, LLC, No. 01-
23-00044-CV, 2023 WL 8192532, at *8 (Tex. App.—Houston [1st Dist.] Nov. 28, 2023,
orig. proceeding) (concluding that Society is “well-reasoned” and “sets out a reasonable
rule for determining whether recording an independent examination should be
permitted”); see also In re Redbird Trails Apartments, No. 05-20-00284-CV, 2020 WL
3445811, at *4 (Tex. App.—Dallas June 24, 2020, orig. proceeding [mand. filed]) (mem.
op.) (following Society in concluding that “in the absence of proof of special circumstances
or a particularized need for videotaping or having an attorney present at the opposing
party’s examination, one party should not be required to videotape the examination when
the other party did not”). Further, the Peñas’ suggested approach is inconsistent with the
fair trial standard employed by Texas courts. See In re Auburn Creek Ltd. P’ship, 655
S.W.3d at 842; In re Offshore Marine Contractors, Inc., 496 S.W.3d at 803.
9 Supporting their argument with relevant citations, the Peñas assert that eight states have rules
that require recording examinations, eight states “hold that recording or other attendance is the default rule
through case law,” two states present “mixed case law on this issue,” one state considers the matter
discretionary, and six other states require “good cause or the like” for recording or an external presence.
The Peñas do not address federal authority on point.
16
Here, Dr. Duckwall’s examination of Leticia was not recorded, and we conclude
that the trial court abused its discretion in ordering Drs. Martinez and Ticknor’s
examination to be recorded where good cause for recording was not shown. See In re
UV Logistics, LLC, 2023 WL 8192532, at *8; In re Soc’y of Our Lady of Most Holy Trinity,
622 S.W.3d at 17–18; see also In re Redbird Trails Apartments, 2020 WL 3445811, at *4.
We sustain relators’ first issue.
B. Timing and Specification
In their second issue, relators assert that the trial court erred by ordering Drs.
Martinez and Ticknor “to disclose the battery of tests in advance and requiring the exam
to be completed within five hours—conditions that were not equally imposed” on Dr.
Duckwall. We note that Rule 204 specifically requires the trial court to specify the
“manner, conditions, and scope of the examination.” TEX. R. CIV. P. 204.1(d); see also In
re Reyes, No. 02-20-00071-CV, 2020 WL 1294923, at *2, (Tex. App.—Fort Worth Mar.
19, 2020, orig. proceeding) (mem. op.) (conditionally granting mandamus relief where the
trial court’s order compelling an examination “demonstrate[d] a clear failure to comply
with Rule 204.1’s requirements”).
We first address that aspect of the trial court’s order requiring Drs. Martinez and
Ticknor to “specify the tests they intend to perform on [Leticia].” Relators assert that “[t]he
Texas Supreme Court’s precedent [of] In re Auburn Creek is . . . clear—for mental exams,
the expert cannot be required to disclose the specific testing battery in advance because
that could bias the results and introduce error.” See In re Auburn Creek Ltd. P’ship, 655
S.W.3d at 842. In Auburn, the trial court denied the relators’ motion for a Rule 204 medical
examination, and the supreme court held that the trial court abused its discretion in
17
concluding that the relators had not shown good cause for an examination. See id. at 839.
In Auburn, relators had supported their request for an examination with an affidavit from
the same Dr. Martinez who is present in this case, in which, as here, he asserted that he
should not be required to disclose the tests that he would administer:
Dr. Martinez testified that the neuropsychological exams would assess the
claimed injuries, including memory impairment, language difficulties, anxiety,
depression, and processing deficiencies for each of the six plaintiffs. This
wide variety of disorders and symptoms is listed in Dr. Webb’s report on the
[plaintiffs’] behalf. Although Dr. Martinez provided a lengthy list of possible
tests, many of which were similar to the ones Dr. Webb performed, the
[plaintiffs] did not object to any particular test. Dr. Martinez testified that he
could not be certain which tests would be appropriate until he interacts with
each plaintiff in a clinical interview and makes first-hand behavioral
observations. Dr. Martinez also identified the risk of bias and error if the
patients are aware of the exact list of tests to be performed. This evidence
shows a reasonable nexus between the proposed examinations and the
conditions at issue.
Id. at 842 (internal footnote omitted). In a footnote, the supreme court distinguished In re
Estabrook, No. 10-20-00175-CV, 2020 WL 6192923, at *1–5 (Tex. App.—Waco Oct. 21,
2020, orig. proceeding) (mem. op.) on the facts. Id. at 842 n.2. In Estabrook, the Tenth
Court of Appeals agreed that the plaintiff’s mental condition was in controversy and
merited a Rule 204 examination but found that the scope of the trial court’s order providing
for a neuropsychological examination was too broad because it “did not limit the
neuropsychological examination to the mental conditions in controversy . . . .” In re
Estabrook, 2020 WL 6192923, at *3–4. The supreme court distinguished Auburn based
on the specificity of Dr. Martinez’s expert testimony regarding reasonable nexus, the
“much broader list of conditions” presented, and the “more detailed” proposed orders
granting the Rule 204 examinations. See In re Auburn Creek Ltd. P’ship, 655 S.W.3d at
842 & n.2.
18
We decline to accept relators’ contention that Auburn stands for the broad
proposition that experts are never required to disclose the specific tests that will be
administered in advance of the examination. The precise issue presented in Auburn was
whether the trial court abused its discretion in denying a Rule 204 examination, and the
supreme court’s discussion regarding disclosure of the tests for the examination was
dicta. Id. at 839; see Seger v. Yorkshire Ins., 503 S.W.3d 388, 399 (Tex. 2016) (discussing
the precedential value of judicial dictum and obiter dictum). Further, to the extent that
Auburn addressed the conditions for the examination, it did so in the well-established
analytical framework that we use for Rule 204 examinations. Id. at 842 & n.2. Specifically,
the supreme court applied a fact-based analysis to determine whether the manner,
conditions, and scope of the examination were supported by good cause and ensured a
fair trial. Id.; see generally In re Sherwin-Williams Co., 688 S.W.3d at 371; In re H.E.B.
Grocery Co., 492 S.W.3d at 303; see also In re Evans, No. 03-20-00532-CV, 2021 WL
278944, at *5 (Tex. App.—Austin Jan. 28, 2021, orig. proceeding) (mem. op.) (“Although
there may be cases where there are reasons not to require the movant’s psychiatrist to
identify the possible universe of tests that may be given to the nonmovant, on the record
before us in this case, there was no evidence before the trial court to support counsel’s
argument.”); In re Kirby Inland Marine, LP, No. 01-18-00383-CV, 2018 WL 3468476, at
*3–4 (Tex. App.—Houston [1st Dist.] July 18, 2018, orig. proceeding) (mem. op.)
(“Because the time and advance notice limitations imposed by the trial court deny Kirby
the ability to conduct a full evaluation, the limitations violate fundamental fairness and the
fair-trial standard, and therefore constitute an abuse of discretion.”). In this regard, we
consider the record that was before the trial court when considering a motion to compel
19
a Rule 204 examination. See In re Sanchez, 571 S.W.3d 833, 837 (Tex. App.—Houston
[1st Dist.] 2018, orig. proceeding).
Here, Dr. Martinez offered affidavit testimony that included a list of the potential
tests that he would administer in his examination. Dr. Martinez explicitly testified that he
could not further identify the specific tests that he would administer because it could bias
the results, introduce a potential source of error, and allow Leticia “the opportunity to
prepare” for the examination. He further testified that he “cannot predict which
psychological and neuropsychological instruments I will include in the battery until I have
completed my clinical interview and listened to [Leticia’s] current symptoms and
concerns.” Dr. Martinez also testified that, “[i]t is standard practice of clinical
neuropsychologists to withhold from both clinical patients and individuals that are seen
as part of a legal proceeding the testing information prior to the evaluation.” Thus, as in
Auburn, the Peñas were explicitly advised as to the list of potential tests that Dr. Martinez
might administer, but they did not object to any particular one of the proposed tests, and
they did not offer evidence indicating that the administration of any of the proposed tests
would be improper under the applicable standard. Based upon the foregoing facts and
circumstances, we conclude that the trial court abused its discretion in requiring Dr.
Martinez to specify the tests that he would administer in advance. See In re Sherwin-
Williams Co., 688 S.W.3d at 371; In re Auburn Creek Ltd. P’ship, 655 S.W.3d at 842 &
n.2; In re H.E.B. Grocery Co., 492 S.W.3d at 303.
Our analysis differs regarding Dr. Ticknor. By affidavit, Dr. Ticknor advised that his
part of the examination would include “a battery of tests of [his] choosing based upon [his]
review of the medical records and other documents in this case, and based upon [his]
20
assessment from an in person clinical interview of [Leticia].” Dr. Ticknor did not provide a
list of potential tests that he might administer. Unlike Dr. Martinez, Dr. Ticknor did not
testify that he was unable to specifically identify the tests that he would administer to
Leticia.
Based on the foregoing, an order allowing an examination “as described” in Dr.
Ticknor’s affidavit would fail to meet Rule 204’s requirement for an order allowing an
examination to “specify the . . . manner, conditions, and scope of the examination.” TEX.
R. CIV. P. 204.1(d). When the record lacks information regarding the manner, conditions,
and scope of the examination, there is nothing substantiating the required reasonable
nexus between the examination and the conditions in controversy. See id.; In re Sherwin-
Williams Co., 688 S.W.3d at 371. And Dr. Ticknor’s failure to more specifically explain the
potential tests that he might administer renders the Peñas unable to lodge objections to
any specific tests or otherwise assert that any specific part of the examination does not
directly relate to the condition in controversy. See In re Sherwin-Williams Co., 688 S.W.3d
at 371; In re Auburn Creek Ltd. P’ship, 655 S.W.3d at 841–42. Further, requiring an
examinee to undergo an array of undisclosed exams which might or might not possess a
reasonable nexus to the conditions in controversy or otherwise fall within standard
professional protocols would unduly impinge on Leticia’s privacy rights in a manner not
necessary to accord the relators a fair trial. In re Auburn Creek Ltd. P’ship, 655 S.W.3d
at 842. The provision in the trial court’s order requiring Dr. Ticknor to specify the tests that
he will administer in advance of the examination remedies this deficiency. Accordingly,
we conclude that the trial court did not abuse its discretion by ordering Dr. Ticknor to
“specify the tests” he intends to perform before the examination.
21
We turn our attention to the five-hour time limitation imposed by the trial court. We
note that the Peñas had requested that the Rule 204 examination be limited to four hours.
In their petition for writ of mandamus, relators assert that they “should have the
opportunity to have the same amount of time Dr. Duckwall had when she conducted her
evaluation—eight hours.” There are several problems with relators’ contentions in this
regard. First, there is no direct evidence in the record regarding the duration of Dr.
Duckwall’s exam. Relators have estimated that Dr. Duckwall spent between “6.6 to 10.0
hours” examining Leticia based on the number and type of tests that she administered,
or alternatively, that Dr. Duckwall’s billing records indicate that she spent eight hours over
the course of two days examining Leticia.
Second, the amount of time that relators seek is not consistently reflected in their
pleadings. In their joint motion to compel, the relators stated that “[t]he entire evaluation
will likely comprise about 7 or 8 hours and can be completed in one day.” In their reply,
to the Peñas’ response to their motion to compel the examination, the relators asserted
that the time they had requested, “between 6–8 hours,” was consistent with the duration
of Dr. Duckwall’s examination. Thus, the trial court’s award of a five-hour examination
differs from that requested by a variance of one to three hours.
Third, there is no evidence in the record that a five-hour examination would be
insufficient. Dr. Martinez testified by affidavit that the “actual examination time will be
approximately eight (8) hours,” that “actual testing typically takes up to 6-8 hours of face-
to-face administration, in addition to breaks throughout the day as needed, as well as an
approximately one-hour break for lunch,” and that his clinical interview, in which Dr.
Ticknor would participate, “will last 90 to 120 minutes.” In contrast, Dr. Ticknor testified
22
that his “portion of the requested examination will be conducted with a clinical
neuropsychologist,” we assume Dr. Martinez, and that it will “last no more than 2 to 2 ½
hours.” These affidavits seem to establish an estimate of the outmost bounds for how
long it will take to perform the examination and are somewhat vague as to how much time
will be involved in the actual examination. However, neither expert testified that an eight
hour examination is absolutely required for the examination to be legitimate or that a five
hour limitation would render the examination insufficient. See In re Soc’y of Our Lady of
Most Holy Trinity, 622 S.W.3d at 10, 11; In re Offshore Marine Contractors, Inc., 496
S.W.3d at 803; see also In re Kirby Inland Marine, LP, 2018 WL 3468476, at *1
(concluding that the trial court abused its discretion in imposing a time restriction for an
examination when the record contained a physician’s affidavit stating that “the time
restriction essentially would prevent him from performing an effective evaluation”).
In examining this issue, we are cognizant that we “must be careful not to prevent
the development of medical testimony that would allow the [relators] to fully investigate
the conditions” that Leticia has placed in issue. In re Ten Hagen Excavating, Inc., 435
S.W.3d 859, 867 (Tex. App.—Dallas 2014, orig. proceeding). However, there is no
evidence before us that the trial court’s temporal limitation for the examination presents
such an impediment. We further observe that the fair trial standard does not require
absolute parity, nor could it, between an examination conducted by a treating physician
and one conducted by professionals engaged for litigation. Based on the foregoing, we
conclude that the trial court did not abuse its discretion in determining that a five-hour
time limit was reasonable based on the factual circumstances indicated by the record and
the fair trial standard. See In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d at 10,
23
11; In re Offshore Marine Contractors, Inc., 496 S.W.3d at 803; see also In re Kirby Inland
Marine, LP, 2018 WL 3468476, at *1–2 (concluding that it was an abuse of discretion to
allow only a two-hour examination when the examining physician testified “that the time
restriction essentially would prevent him from performing an effective evaluation”).
In summary, we sustain relators’ second issue in part regarding the trial court’s
requirement for Dr. Martinez to specify the tests he will perform in advance. We overrule
relators’ second issue in all other respects.
C. Remedy by Appeal
In their third issue, relators assert that they lack an adequate remedy by appeal to
address the trial court’s errors. We agree. Balancing the benefits of mandamus review
against the detriments and examining the specific facts and circumstances of this case,
we conclude that appeal is an inadequate remedy. See In re Acad., Ltd., 625 S.W.3d at
32; In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. The supreme court has repeatedly
held that appeal is an inadequate remedy to address errors with regard to Rule 204
examinations that impair the movant’s ability to develop expert testimony fully and fairly
and thus severely compromises the ability to present a defense in the case. See In re
Sherwin-Williams Co., 668 S.W.3d at 372; In re Auburn Creek Ltd. P’ship, 655 S.W.3d at
843; In re H.E.B. Grocery Co., 492 S.W.3d at 304. As in H.E.B., relators’ defense in this
case centers on their challenges to the nature, extent, and cause of Leticia’s injuries, and
these issues depend significantly on expert testimony. See In re H.E.B. Grocery Co., 492
S.W.3d at 304. Relators seek to allow Drs. Martinez and Ticknor the same opportunity
that Dr. Duckwall had to fully develop and present their opinions, thereby ensuring
fundamental fairness and a fair trial. See id.; In re Soc’y of Our Lady of Most Holy Trinity,
24
622 S.W.3d at 19–20; In re Offshore Marine Contractors, Inc., 496 S.W.3d at 804; In re
Ten Hagen Excavating, Inc., 435 S.W.3d at 864. We conclude that relators lack an
adequate remedy by appeal. We sustain their third issue.
V. CONCLUSION
The Court, having examined and fully considered relators’ petition for writ of
mandamus, the responses, and the applicable law, is of the opinion that relators have
met their burden to obtain mandamus relief, in part, as stated herein. Accordingly, we lift
the stay previously imposed in this case. See TEX. R. APP. P. 52.10. We conditionally
grant the petition for writ of mandamus in part and direct the trial court to vacate those
portions of its October 2, 2023 order requiring the examination to be videotaped and audio
recorded and requiring Dr. Martinez to specify the tests he intends to perform in advance.
We deny the petition for writ of mandamus as to all other relief sought. Our writ will issue
only if the trial court fails to promptly comply.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
14th day of February, 2024.
25