in Re the Society of Our Lady of the Most Holy Trinity ( 2019 )

NUMBER 13-19-00064-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE THE SOCIETY OF OUR LADY OF THE MOST HOLY TRINITY
On Petition for Writ of Mandamus.
OPINION
Before Justices Benavides, Longoria, and Hinojosa
Opinion by Justice Hinojosa1
In this original proceeding, The Society of Our Lady of the Most Holy Trinity
(Society) contends the trial court 2 abused its discretion by allowing the real party in
interest, Jane Doe, to videotape the psychological examination ordered for Doe pursuant
to Texas Rule of Civil Procedure 204.1. See TEX. R. CIV. P. 204.1 (providing for court-
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.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number 2016CCV-61648-3 in the County
Court at Law No. 3 of Nueces County, Texas, and the respondent is the Honorable Deeanne Galvan. See
TEX. R. APP. P. 52.2.
ordered physical and mental examinations). Society seeks to compel the trial court to
vacate its November 27, 2018 order allowing for Doe’s examination to be recorded by
video and its December 12, 2018 order denying reconsideration of that order. Because
Doe did not meet her burden to show good cause for the examination to be videotaped,
we conditionally grant the petition for writ of mandamus.
I. BACKGROUND
Doe filed suit against Society and others3 alleging that she was raped and sexually
abused as a child by Stephen Tarlton Dougherty, who was at that time a priest. In 2018,
Dougherty was convicted of raping Doe when she was thirteen years old. He was
sentenced to sixty years of imprisonment. In the present civil lawsuit, Doe alleged, in
part, that Society knew Dougherty was “an admitted child molester” before it ordained him
as a priest and promoted him to the public as a parish priest. Doe asserted that Dougherty
admitted to Society, prior to his ordination, that he had previously sexually abused an
eight-year old boy, R.B. Doe sought damages for past and future medical expenses, pain
and suffering, mental anguish, physical impairment, and lost wages and diminished wage-
earning capacity.
On September 11, 2018, Society filed a “Motion to Compel an Independent
Medical Examination” of Doe on grounds that she had “alleged past and present severe
physical, emotional and psychological pain and suffering, mental anguish, physical
impairment, medical expenses, and lost wages.” Society requested that Dr. Gabrielle
3 Doe also filed suit against Stephen Tarlton Dougherty and the Most Reverend W.M. Michael
Mulvey, S.T.L., D.D., as Bishop of the Diocese of Corpus Christi and His Successors in Interest, A
Corporate Sole (the Diocese). The petition for writ of mandamus refers to the Diocese as a “Settled
Defendant.” Neither the Diocese nor Dougherty has filed a response to Society’s petition for writ of
mandamus.
2
Hobday, a board-certified forensic psychiatrist, perform the examination and prepare a
report regarding the results.
On September 14, 2018, Doe filed a response to Society’s motion for an
examination alleging, inter alia, that Society had failed to show good cause for the
examination because experts had not yet been designated in the case and Society could
obtain the desired information through less intrusive means. Doe objected to Society’s
request as unreasonable, overly broad, and unduly burdensome, and she argued that the
request failed “to state with specificity the examination(s) sought” and failed “to identify
how the examination(s) sought (which are not identified) are relevant to the issues in
controversy.”
On September 14, 2018, the trial court held a hearing on Society’s motion to
compel the examination. One of Doe’s counsel stated that he was “not opposed” to the
examination itself but was concerned about the parameters of the proposed examination
and wanted to avoid a “deposition” with “questions wholly outside of the range of things
that should be asked.” The trial court discussed the Coates case and its requirement that
the movant show good cause for the examination and suggested that the examination
should be “narrowly tailored.” Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988)
(orig. proceeding) (establishing the “good cause” test for examinations under former Rule
167, now TEX. R. CIV. P. 204). The trial court ultimately recessed the hearing to allow the
parties to attempt to agree on the location, duration, and parameters of the proposed
examination.
3
The trial court held a second hearing on Society’s motion to compel an examination
on November 11 or 14, 2018. 4 Society advised the trial court that the parties had not
been able to resolve the outstanding issues pertaining to the examination. Society stated
that Doe’s counsel had requested that (1) Hobday identify in advance the tests that she
would be conducting during the examination, and (2) the examination be videotaped with
a “live video feed” or with an observer present during the examination. Society argued
that these conditions were not supported by the law and noted that Doe’s expert, Dr.
Alexandria H. Doyle, who had examined Doe, 5 was not similarly encumbered in
performing her examination. Society further argued that the examination was necessary
to fully evaluate Doe’s claims and conditions.
At the hearing, Doe’s counsel appeared to retreat from his former position that he
was “not opposed” to the examination. Doe’s attorneys argued that Society had not met
its burden to show good cause for the examination and argued that Doe was entitled to
know the names of the tests that Hobday would administer. Doe’s counsel further
asserted that Society already had relevant information regarding Doe’s psychological
status in the form of her testimony in the transcripts from Dougherty’s criminal trial and
her medical records. Counsel requested that the trial court order that Doe’s counsel be
permitted to be present at the examination because counsel had previous experience
“where experts go outside of a [c]ourt’s order” and “experts have tried to interview
whoever drove the Plaintiff to the interview session.” Counsel further requested that the
trial court order Society to identify the tests that would be administered during the
4 The reporter’s record for this hearing includes both dates. This discrepancy is not material to our
analysis.
5 Doyle is not Doe’s regular treating physician but is an expert retained for purposes of litigation.
4
examination and to limit the examination to the identified tests “so that all of us have
knowledge of what’s going on.” Counsel argued as follows:
This is obviously an adverse proceeding. We’re not going to place our
vulnerable young lady who has been raped in a position where we don’t
know what’s going on. We want to know what she can expect that day. I
don’t have to know every word that’s going to be said, but I do want to know
the tests. I do want to know the framework of what is anticipated so that we
can make sure that the Court approves of that, finds good cause for it, and
so we know what is going to take place.
We ask that only the Plaintiff be examined. That the Plaintiff is not deposed
during the examination. That the Plaintiff is permitted to request breaks in
the examination as needed and that a copy of the examiner’s report be
produced to Plaintiff’s counsel. We’re asking no later than 7 days following
the examination. And so, if the Defendant’s [sic] can show good cause and
provide the Court and us with the information as to the type of testing that
they want to do, meaning the names of the tests and how they anticipate
this examination to be structured, then we would ask that the Court place
certain parameters [on] this examination and the Defendant can go forward
with that.
In response, Society confirmed that it was seeking a “noninvasive mental
evaluation through an interview” conducted in a “manner customary of a forensic
psychiatrist.” The trial court admitted several exhibits into evidence under seal, including
Doyle’s expert report and Hobday’s curriculum vitae. Society also offered into evidence,
and the trial court admitted under seal, some of Doe’s testimony from Dougherty’s
criminal trial and an excerpt from a police report. Society argued that these exhibits
showed that Doe provided varying accounts of a previous sexual incident and that it
should not have to rely on her “conflicting testimony” regarding the effect of this previous
incident without its own “independent evaluation.” In the two-page excerpt of the
transcript from the criminal trial, Doe testified that a seventeen or eighteen-year-old
relative exposed himself to her and she went to one counseling session regarding this
incident. The excerpt from the police report appears to concern this same event.
5
Society contended that opposing counsel’s suggestions that the examination might
effectively constitute a deposition or that Hobday would re-traumatize Doe was
“impugning the professionalism of an expert.” Society stated that it could not agree to
have an observer present during the examination because it could potentially invalidate
the results of the examination. Society further argued that Society and Doe should be on
the “same footing” with respect to the examination and noted that Doe had not provided
it with prior notice that Doyle would be examining Doe or which tests Doyle planned to
administer to Doe. Society pointed out that Doyle’s examination had not been recorded
or videotaped and Society did not have the opportunity to be present at that examination.
Society also alleged that if it had to provide advance descriptions of the tests that were to
be administered by Hobday, Doe might be “prepped or coached” for the examination,
which would invalidate the exam as an analytical tool.
After extensive discussion, 6 the trial court requested that the parties provide letter
briefs regarding whether Society should be required to disclose in advance the types of
testing to be utilized for the examination and whether a third party could be present for
the observation or whether a recording device such as a “video feed” should be utilized
during the examination.
By letter brief filed on November 19, 2018, Doe’s counsel requested the trial court
to allow counsel to be present at the examination and to require Society to disclose the
“anticipated tests to be performed during the mental examination” of Doe. Doe discussed
6 The parties discussed, inter alia, whether this was an “independent” medical examination or a
defense medical examination. Rule 204 does not utilize the term “independent.” TEX. R. CIV. P. 204.
Society conceded that there was “no disagreement on the fact that [it] is retaining this expert and that [it] is
paying the expert.” Society asserted that “substantively, we do need this examination to properly defend
this case.”
6
several conflicting cases regarding whether an attorney should be allowed to be present
at an examination and asserted that counsel’s presence was required in this case:
Further, the court should consider the Plaintiff at issue in this case, who was
raped by Defendant Dougherty, who was sponsored and promoted to the
priesthood by [Society] and assigned to parishes in Texas and other
dioceses in the United States [and] whom [Society] represented to others,
including the public, as being a chaste and sexually safe and . . . moral role
model for children. Plaintiff was 13 years old when she was raped by
Dougherty. Dougherty has been sentenced to sixty years in prison due to
his conduct.
As noted by Plaintiff’s expert, and contained in the report of Alexandria
Doyle, Ph.D. (which was presented to the Court and placed under seal)
regarding behavioral observations of the Plaintiff, Doyle stated, “Her
thinking was somewhat slow and difficult to follow at times, and it appeared
that she had to work hard to concentrate on the questions being asked.”
She goes on to state that, Plaintiff “was cooperative with all procedures
although by the end of the evaluation, fatigue may have been a factor in her
test responses.” Plaintiff is a 20[-]year[-]old woman with an 11th grade
education. She has struggled with learning difficulties in school that
“became worse over time and she was classified as Special Ed”. She
experiences anxiety and panic due to the events made the basis of this
case. She “has crying spells and generally feels emotionally overwhelmed
and unable to problem solve.” The [s]ymptoms of traumatic stress and a
pervasive sense of vulnerability have negatively affected [her] functioning.
Due to the Plaintiff and the events made the basis of this case, as well as
the fact that this matter is an adversarial proceeding, Plaintiff’s counsel
should be allowed to be present in the room or by live video feed during the
mental examination and/or a video camera placed on the Defendant’s
expert to record the mental examination.
Doe further argued that the trial court should require Society to provide notice regarding
the types of tests to be performed at the examination and contended, in part, that it would
violate her privacy rights not to be provided with this information.
On November 26, 2018, Society filed a letter brief in opposition to the requests
made by Doe in her letter brief. Society’s letter brief generally provided authority and
argument in support of its contention that the trial court should deny Doe’s requests.
7
On November 27, 2018, the trial court granted Society’s motion to compel an
examination of Doe under Rule 204.1. The court ordered Doe to submit to a medical
examination by Hobday for a four-hour period, at a location to be agreed upon, and
specified that the manner of examination would be “the usual manner of examination
utilized by the doctor in conducting examinations to determine [the] extent, if any, of
Plaintiff’s injuries at issue in this case.” The trial court’s order defines the scope of the
examination as “an independent mental evaluation by Dr. Gabrielle Hobday to determine
the findings or lack thereof and the nature of Plaintiff’s alleged injuries.” The order
requires Society to pay for the examination and traveling expenses for Doe and requires
Society to produce a copy of Hobday’s report to Doe’s counsel. The specific provision of
the order at issue here, interlineated in handwriting, states that the court “will allow for a
video recording of the examination.”
On December 7, 2018, Society filed a motion to reconsider the court-imposed
video recording of the examination. Society extensively discussed case law supporting
its position that to allow a third party to witness the examination, or even to allow the
examination to be recorded, would significantly impact the results of the examination.
Society’s motion was supported by Hobday’s affidavit, which provided in relevant part:
My name is Dr. Gabrielle S. Hobday, MD, and I am over the age of
eighteen, am of sound mind, and competent to make this affidavit. I am a
medical doctor licensed in the State of Texas and am board-certified in
Psychiatry and in Forensic Psychiatry by the American Board of Psychiatry
and Neurology. I have been practicing medicine, and in particular in the
field of Psychiatry, since the completion of my residency in 2008. Attached
as Exhibit A is a true and correct copy of my Curriculum Vitae.
I have conducted psychiatric evaluations in the capacity of a
psychiatric expert on several hundred cases. These include the evaluation
of competency to stand trial and criminal responsibility for the criminal
courts, evaluations for federal employee disability cases, evaluations of
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safety to practice and fitness of duty for professionals, evaluations involving
boundary violations, medical malpractice expert review, evaluations of
psychiatric damages in civil cases, guardianship evaluations and probate
testamentary capacity assessments.
It is always my practice in conducting independent medical
examinations for matters in litigation that such evaluations are conducted in
a one-on-one setting with only myself and the examinee present. I do not
allow these evaluations to be recorded and I do not allow the presence of
third-party observers during the evaluations. In my experience and in my
professional judgment, the presence of a third party or a recording device
creates an atmosphere where the responses by the examinee are less
forthcoming and less representative of the true mental state of the
examinee. Accordingly, to order my evaluation of the Plaintiff to be
recorded or to order the presence of a third party would, in my opinion,
negatively impact the validity of my evaluation, and impair my ability to
provide to the court the most accurate and true expert analysis and resultant
conclusions.
I have reviewed the report of Alexandria H. Doyle, PhD, prepared for
the above­referenced case. My review of her report does not indicate that
Dr. Doyle’s evaluation was recorded or witnessed by a third party. Ordering
my evaluation to be recorded or witnessed by a third party would not provide
me with the equal ability to evaluate the Plaintiff under the same
circumstances as Dr. Doyle.
On December 12, 2018, the trial court held a hearing on Society’s motion to
reconsider. Hobday’s affidavit, originally filed with the motion for reconsideration, was
admitted into evidence under seal, as was Doyle’s report. At the hearing, counsel for Doe
decried Hobday’s affidavit as “conclusory” and again argued for videotaping the
examination to protect against potential improprieties and to provide a record of what was
to transpire during the evaluation. Doe’s counsel further asserted that “nobody has to
know that there’s a recording device in there” and we “don’t have to have a camera that’s
setup that’s . . . aimed down on everybody in there.” According to her attorney, “[w]e can
have something simple that’s out of the way, that’s unobtrusive [and] does this job.” Doe’s
counsel asserted that videotaping the examination was not equivalent to having an
9
observer present and contended that Doe had been a victim of a crime who is “under
tremendous stress.”
The trial court denied Society’s motion to reconsider on December 12, 2018.
This original proceeding ensued. By one issue, Society alleges that the trial court
abused its discretion in ordering its expert psychiatrist to videotape Doe’s examination. It
argues that “the court’s order, in the absence of evidence of special circumstances or
good cause, is an abuse of discretion which places the adverse parties on unequal footing
for which there is no adequate remedy by appeal.”
The Court requested Doe, 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.
CIV. P. 52.2, 52.4, 52.8. Doe filed a response to the petition for writ of mandamus arguing
that the trial court did not abuse its discretion in allowing the examination to be
videotaped, and even if it did, Society has an adequate remedy by appeal to cure any
alleged harm. The Court also received an amicus curiae brief in support of Doe’s position
filed by the Texas Association Against Sexual Assault (TAASA). See id. R. 11. And
finally, Society has filed a reply to Doe’s response.
II. STANDARD FOR MANDAMUS RELIEF
To obtain relief by writ of mandamus, a relator must establish that an underlying
order is void or a clear abuse of discretion and that no adequate appellate remedy exists.
In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). An abuse of
discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made
10
without regard for guiding legal principles or supporting evidence. In re Nationwide, 494
S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). A trial court
abuses its discretion when it fails to analyze or apply the law correctly or apply the law
correctly to the facts. In re Nationwide, 494 S.W.3d at 712; In re H.E.B. Grocery Co., 492
S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).
We determine the adequacy of an appellate remedy by balancing the benefits of
mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528
(Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. In
deciding whether the benefits of mandamus outweigh the detriments, we weigh the public
and private interests involved, and we look to the facts in each case to determine the
adequacy of an appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 313 (Tex. 2010)
(orig. proceeding); In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig.
proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136–37. Mandamus “may
be essential to preserve important substantive and procedural rights from impairment or
loss, [and] allow the appellate courts to give needed and helpful direction to the law that
would otherwise prove elusive in appeals from final judgments.” In re Prudential Ins. Co.
of Am., 148 S.W.3d at 136.
An order regarding a physical or mental examination under Rule 204 may be
subject to review by mandamus. See TEX. R. CIV. P. 204. The Texas Supreme Court has
concluded that mandamus is appropriate to correct the denial of an examination where
the defense of the case “hinge[d] in large part on challenges to the nature, extent, and
cause” of the plaintiff’s injuries, those issues depended significantly on competing expert
testimony, and the defense’s expert required “the same opportunity” as the plaintiff’s
11
expert “to fully develop and present his opinion, ensuring a fair trial.” In re H.E.B. Grocery
Co., 492 S.W.3d at 304–05; see In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863
(Tex. App.—Dallas 2014, orig. proceeding). Further, rulings regarding Rule 204
examinations may be reviewed by mandamus when they violate the “fundamental
fairness” doctrine or the “fair trial” standard. See, e.g., In re Advanced Powder Sols., Inc.,
496 S.W.3d 838, 851 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); In re Ten
Hagen Excavating, Inc., 435 S.W.3d at 870; see also In re Kirby Inland Marine, LP, No.
01-18-00383-CV, 2018 WL 3468476, at *4 (Tex. App.—Houston [1st Dist.] July 18, 2018,
orig. proceeding) (mem. op., per curiam).
Doe argues that mandamus relief is inappropriate and asserts that we should reject
any argument that the trial court abused its discretion when making a discovery ruling on
an issue that has not been clearly resolved by the relevant case law. However, a trial
court has no discretion in determining what the law is or applying the law to the facts,
even when the law is unsettled. In re Shipman, 540 S.W.3d 562, 565–66 (Tex. 2018)
(orig. proceeding) (per curiam); In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017)
(orig. proceeding). Thus, “[e]ven where the law is unsettled or the issue is one of first
impression, a court may abuse its discretion if its legal decision is incorrect.” In re Silver,
540 S.W.3d 530, 538 (Tex. 2018) (orig. proceeding); see In re Prudential Ins. Co. of Am.,
148 S.W.3d at 135. Accordingly, we proceed with our review on the merits of Society’s
petition for writ of mandamus.
III. RULE 204
Rule 204 of the Texas Rules of Civil Procedure governs court-ordered physical
and mental examinations. See TEX. R. CIV. P. 204.1–.5. Under Rule 204.1, a party may,
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no later than thirty days before the end of the applicable discovery period, move for an
order compelling another party to submit to a physical or mental examination by a
qualified physician or psychologist. See id. R. 204.1(a)(1). The party seeking the
examination must show both (1) good cause, and (2) that the mental or physical condition
of a party is in controversy or the party responding to the motion has designated a
psychologist as a testifying expert or has disclosed a psychologist’s records for possible
use at trial. See id. R. 204.1(c)(1); In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates,
758 S.W.2d at 752. These requirements may not be met with “conclusory allegations” in
the movant’s pleadings or by “mere relevance to the case.” Coates, 758 S.W.2d at 751;
see In re H.E.B. Grocery Co., 492 S.W.3d at 303; In re Click, 442 S.W.3d 487, 491 (Tex.
App.—Corpus Christi–Edinburg 2014, orig. proceeding); In re Transwestern Publ’g Co.,
96 S.W.3d 501, 505 (Tex. App.—Fort Worth 2002, orig. proceeding).
The purpose of the “good cause” requirement in Rule 204 is to balance the
competing interests of the party’s right of privacy and the movant’s right to a fair trial. See
In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates, 758 S.W.2d at 753; In re Click, 442
S.W.3d at 491. In order to show good cause, the movant must establish that: (1) the
examination is relevant to issues that are genuinely in controversy in the case and the
examination would produce, or would likely lead to, relevant evidence; (2) a reasonable
nexus exists between the condition in controversy and the examination sought; and (3) it
is not possible to obtain the desired information through means that are less intrusive
than a compelled examination. See In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates,
758 S.W.2d at 751; In re Transwestern Publ’g Co., 96 S.W.3d at 505; In re Caballero, 36
S.W.3d 143, 144 (Tex. App.—Corpus Christi–Edinburg 2000, orig. proceeding). There
13
must be a greater showing of need to obtain a physical or mental examination than to
obtain other sorts of discovery. In re Ten Hagen Excavating, Inc., 435 S.W.3d at 866
(citing Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)).
Rule 204 requires the trial court to determine “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); see also In re Sharaf, No. 03-18-00671-CV, 2018 WL 5796977, at *3
(Tex. App.—Austin Nov. 5, 2018, orig. proceeding) (mem. op.) (concluding that the trial
court abused its discretion by failing to specify the requirements for the examination). The
trial court possesses discretion regarding the conditions for the examination. TEX. R. CIV.
P. 204.1(d); In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 803 (Tex. App.—
Houston [1st Dist.] 2016, orig. proceeding) (“The length of Yohman’s interview and the
quantity and duration of neuropsychological tests to be administrated are matters for the
trial court’s discretion, which must be exercised by considering the fair-trial standard.”);
see also In re Trimac Transp., Inc., No. 09–08–270–CV, 2008 WL 2758793, at *1 (Tex.
App.—Beaumont July 17, 2008, orig. proceeding) (mem. op.) (stating that the trial court
retains discretion to impose reasonable limits on the location for the examination and the
scope of the examination). In exercising this discretion, the trial court may issue
protective orders “in the interest of justice” and may order, inter alia, that “discovery be
undertaken only by such method or upon such terms and conditions” as directed by the
court. TEX. R. CIV. P. 192.6(b).
IV. ARGUMENTS OF THE PARTIES
Society contends that there is a presumption that the presence of a recording
device is neither necessary nor proper in a Rule 204 examination. It asserts that Doe, as
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the party seeking the recording, had the burden to demonstrate “special conditions” or
good cause for requesting that the examination be recorded, but introduced no evidence
of either. Society contends that it, in contrast, offered “conclusive evidence”
demonstrating that the presence of a recording device was improper and would destroy
the validity of the psychological examination. Society argues that the trial court’s action
constitutes a clear abuse of discretion for which there is no adequate remedy on appeal
because Society, in the “battle of the experts,” will be required to defend itself in the
lawsuit on an “uneven playing field,” thereby depriving it of a fair trial. In support of these
arguments, Society asserts that Texas courts consider case law interpreting Federal Rule
of Civil Procedure 35 7 as instructive in interpreting Rule 204 and cites federal law in
support of its contentions.
In contrast, Doe concedes that Texas Rule of Civil Procedure 204.1 and its federal
counterpart “are silent as to whether a trial court can impose a condition requiring an
independent psychiatric examination to be recorded by video.” Doe asserts that federal
courts do not uniformly prohibit the recording of psychological examinations and that
several cases allow videotaping such examinations. Doe further contends that the
recording is not equivalent to having a third-party observer, such as counsel, present at
the examination because the recording device here will be “unobtrusive.” Doe finally
asserts that assuming—without conceding—that she was required to show good cause
to obtain the recording of her examination, she has met this burden. She points out that
this case involves allegations that Society’s employee raped Doe as a child. Doe’s
7 See FED. R. CIV. P. 35(a)(2) (stating that an order requiring a party to submit to a physical or
mental examination “must specify the time, place, manner, conditions, and scope of the examination, as
well as the person or persons who will perform it”).
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counsel offered evidence of the trauma that she experienced in the form of her expert
affidavit and expressly stated that the intent underlying the request for recording was to
“make sure that she is not revictimized again.” Doe asserts, in sum, that trial courts have
discretion to determine the conditions of an independent medical examination and that
this Court should not conclude that the trial court’s decision “to make an exception to the
usual practice for a rape victim” was done “without reference to guiding rules or
principles.”
V. APPLICABLE LAW
In Coates, the Texas Supreme Court held that the federal courts’ construction of
the analogous federal rule was “helpful” to an analysis of our Texas rule. Coates, 758
S.W.2d at 751 (regarding former Rule 167a); see also In re H.E.B. Grocery Co., 492
S.W.3d at 304. Under federal law, third-party observations and recordings of
examinations are disfavored. Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 395–397
(S.D. Tex. 2013) (collecting cases); Holland v. United States, 182 F.R.D. 493, 495 (D.S.C.
1998) (“[T]he majority of federal courts have rejected the notion that a third party should
be allowed, even indirectly through a recording device, to observe a Rule 35
examination.”); see also Jackson v. Harris Cty, Tex., 2019 WL 2544058, at *1, __ F.R.D.
__, __ (S.D. Tex. June 20, 2019). This is because “[t]he introduction of a human or
mechanical presence—whether a lawyer, a stenographer, a tape recorder, or other
instrumentality—changes the nature of the proceeding.” Ornelas, 292 F.R.D. at 397
(quoting Tirado v. Erosa, 158 F.R.D. 294, 299 (S.D.N.Y. 1994)). 8 The court in Romano
8 Most courts analyze a request that an examination be recorded in the same manner that they
evaluate whether to allow a third party to be present at the examination. See Ornelas v. S. Tire Mart, LLC,
292 F.R.D. 388, 396 (S.D. Tex. 2013); Calderon v. Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D.
523, 529 (S.D. Fla. 2009); Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 557 (D. Conn.
16
v. II Morrow, Inc. articulated the reasons for prohibiting the presence of third parties or
recording or videotaping an examination:
[A]n observer, a court reporter, or recording device would constitute a
distraction during the examination and work to diminish the accuracy of the
process. [An observer could] potentially distract the examining [physician]
and examinee thereby compromising the results of the examination.
Moreover, the presence of the observer interjects an adversarial, partisan
atmosphere into what should be otherwise a wholly objective inquiry . . . .
The Court finds that the presence of the observer would lend a degree of
artificiality to the examination that would be inconsistent with the applicable
professional standard.
173 F.R.D. 271, 273–74 (D. Or. 1997) (quoting Shirsat v. Mutual Pharm. Co., 169 F.R.D.
68, 70–71 (E.D. Pa.1996)); see Calderon v. Reederei Claus-Peter Offen GmbH & Co.,
258 F.R.D. 523, 527 (S.D. Fla. 2009). 9 And further, allowing an observer or recording
subverts the purpose of the rule allowing examinations, which is to put both the plaintiff
and the defendant on an equal footing regarding the evaluation of the party’s medical or
psychological status. Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008), Favale
v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 557 (D. Conn. 2006). In other
words—where one party has been examined by his or her doctors outside the presence
of others or recording devices—the other party should be given the same equal
opportunity. See Tarte, 249 F.R.D. at 859; Favale, 235 F.R.D. at 557.
2006); see, e.g., Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628 (D. Kan. 1999)
(“Whether to allow a tape recorder or a third person at the examination of [the] plaintiff raises only a single
issue.”); Holland v. United States, 182 F.R.D. 493, 495 (D.S.C.1998) (considering the presence of “a
professional videographer or court reporter, or even . . . an unattended videotape machine” as variations
of the same issue, i.e. the presence of a “third party”).
9 We would note, as have some courts, that a compulsory examination with counsel selected and
paid for by the opposing party is not inherently a neutral judicial proceeding but is instead part of the
adversarial litigation process. See, e.g., Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 14 (E.D.N.Y.
1989).
17
Under the majority viewpoint, the party requesting the presence of counsel or
seeking to record or videotape the examination has the burden to show a factual basis
establishing special circumstances which constitute good cause for the accommodation.
Ornelas, 292 F.R.D. at 396; see, e.g., Ren v. Phoenix Satellite Television (US), Inc., 309
F.R.D. 34, 36 (D.D.C. 2015) (stating that “the typical procedure is not to create a recording
of the examination” absent “a showing of specific need”); J.H. v. Sch. Town of Munster,
38 F. Supp. 3d 986, 989 (N.D. Ind. 2014) (“In this case, Plaintiff has not identified any basis
that would persuade the Court to order that the examination be video recorded.”); Stefan
v. Trinity Trucking, LLC, 275 F.R.D. 248, 250 (N.D. Ohio 2011) (“Federal courts have
determined that third parties—whether human or electronic—cannot sit in on physical and
mental examinations under Federal Civil Rule 35 unless special circumstances require it.
These circumstances, however, must be balanced against the interests of the parties
involved in the litigation.”); Morrison v. Stephenson, 244 F.R.D. 405, 407 (S.D. Ohio 2007)
(“In short, Ms. Morrison has simply presented no evidence that any of the facts and
circumstances of this case differ from the ordinary case and require the Court to attach,
as a condition to the examination, a directive that a recording device be made available.”);
Favale, 235 F.R.D. at 557 (refusing to allow the recording of an examination because the
plaintiff had not shown “special circumstances” supported by specific facts constituting
good cause); Holland, 182 F.R.D. at 496 (“Plaintiff has not demonstrated that compelling
circumstances exist that could mandate recordation of the Rule 35 examination.”); see
also Jackson, 2019 WL 2544058, at *2 (stating that the movant must persuade the court
that recording is “necessary”). Thus, the party seeking to record or videotape an
examination bears the burden of showing special circumstances, unique to that party’s
18
situation, supported by specific facts, that distinguish the case from others in which
examinations are sought. See, e.g., Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at
557. Courts have found that good cause for recording or videotaping an examination may
be shown by various special circumstances, including for instance, where the examinee
is a minor, does not speak the relevant language, or suffers from a disability that might
impair his or her ability to communicate to counsel what occurs during the examination,
or where evidence otherwise suggests that recording would be advisable. See, e.g.,
Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D. 662, 664 (D. Kan. 2011) (allowing
recording because, among other reasons, “plaintiff ha[d] a lengthy history of serious
mental issues,” and the court had serious doubts “as to whether plaintiff [would] be
capable of providing any assistance to his attorney in understanding what took place
during the examination”); Greenhorn v. Marriott Int’l, Inc., 216 F.R.D. 649, 654 (D. Kan.
2003) (allowing tape recording of the examination because the plaintiff produced
evidence that the examining physician was “abusive and ha[d] a ‘predilection for ignoring
court orders imposing conditions upon his examinations’” and had previously been
disqualified from several cases); Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12
(E.D.N.Y. 1989) (allowing a stenographer to be present at a psychiatric examination
where it appeared that plaintiff, who was not fluent in English, would have difficulty
communicating with his attorney); see also Maldonado v. Union Pac. R.R. Co., No. 09–
1187–EFM, 2011 WL 841432, at *3 (D. Kan. Mar. 8, 2011) (relying on the fact that the
plaintiff, who “ha[d] a third-grade education and [wa]s a non-English speaker,” suffered
from impaired memory and cognitive abilities, “thus impairing his ability to communicate
to his counsel what occurred during the examination,” in finding the recording warranted);
19
T.B. ex rel. G.B. v. Chico Unified Sch. Dist., No. CIV S–07–0926–GEB–CMK, 2009 WL
837468, at *2 (E.D. Cal. Mar. 26, 2009) (allowing recording of an autistic child’s
examination upon the examining physician’s request because “with traumatized children,
a child’s facial expressions, body language, movements and behavioral enactments
communicate medically significant information which can be captured on videotape” and
there was “no indication in this case that the unobtrusive use of a video camera will make
the examination of plaintiff adversarial”).
In contrast, in accordance with the requirement for special circumstances or a
compelling need, generalized concerns about accuracy, reliability, and methodology for
the examination do not constitute good cause for recording. Ornelas, 292 F.R.D. at 397;
see also Jackson, 2019 WL 2544058, at *2. Thus, good cause for recording an
examination is not established by 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. See, e.g., Hertenstein v. Kimberly Home Health Care,
Inc., 189 F.R.D. 620, 629–31 (D. Kan. 1999). 10
10 Cases which require compelling reasons or exceptional circumstances to allow third-party
observers or recording an examination consider that many of the rationales offered in support of these
measures can be addressed through other means. See, e.g., Smolko v. Unimark Lowboy Trans., LLC.,
327 F.R.D. 59, 63 (M.D. Pa. 2018) (stating that “to the extent that these concerns exist there are other, less
drastic means of addressing them”); Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008) (noting
that there are “safeguards” other than third-party observers for plaintiffs who submit to examinations). For
instance, the trial court can exclude from evidence any statements made by the examinee to the examiner
relating to irrelevant matters or exclude any evidence regarding the exam that goes beyond the appropriate
scope. Further, if there are concerns about the factual accuracy of the expert’s examination or report, or
any bias that the expert might have, the examinee’s counsel can counter these concerns with the
examinee’s own testimony, testimony from that party’s witnesses, and cross-examination of the expert.
Ultimately, if there is a fundamental impropriety in how the exam is conducted, the trial court can exclude
the evidence altogether or otherwise impose appropriate sanctions.
20
The foregoing federal authority requiring good cause or special circumstances for
third party observations or recording an examination is consistent with Texas
jurisprudence. While there is little Texas authority regarding recording or videotaping
physical or mental examinations under Rule 204, 11 the Texarkana Court of Appeals has
considered whether a plaintiff could be accompanied by her attorney during a physical
examination. See Simmons v. Thompson, 900 S.W.2d 403, 403 (Tex. App.—Texarkana
1995, orig. proceeding). 12 In Simmons, the plaintiff in a personal injury suit regarding
defective breast implants requested to have her attorney accompany her to the court-
ordered physical examination. See id. The trial court denied her request and she filed a
petition for writ of mandamus seeking to compel the trial court to set aside the order
denying her request. See id. (discussing former TEX. R. CIV. P. 167a, now Rule 204).
11 Texas cases that involve recording or videotaping examinations provide little discussion or
analysis regarding whether an examination should be recorded or videotaped. See, e.g., In re Commitment
of Shoemaker, No. 09-14-00239-CV, 2015 WL 2124987, at *2 (Tex. App.—Beaumont May 7, 2015, pet.
denied) (mem. op.) (“We agree with the State that the Texas Rules of Civil Procedure do not mandate that
the court require mental examinations to be videotaped.”); In re Freshpoint Dall., Inc., No. 05-14-00872-
CV, 2014 WL 3557616, at *1 (Tex. App.—Dallas July 17, 2014, orig. proceeding) (mem. op.) (denying
mandamus relief where “[r]elators have not established that the trial court has clearly abused its discretion
in ordering that a videographer must be present during the independent medical examination of the real
party in interest.”); In re Medina, No. 01-07-00747-CV, 2007 WL 4279171, at *1 (Tex. App.—Houston [1st
Dist.] Dec. 6, 2007, orig. proceeding) (mem. op.) (concluding that the trial court did not err in ordering
physical examinations for the plaintiffs, but did err in ordering psychological examinations and noting,
without discussion, that the trial court had “also ruled that no representatives of the Medina Plaintiffs could
attend the examinations or videotape or audiotape the examinations”); In re The Kansas City S. Ry. Co.,
No. 09-07-259CV, 2007 WL 1793758, at *1 (Tex. App.—Beaumont June 21, 2007, orig. proceeding) (mem.
op., per curiam) (denying mandamus relief without discussion where the relator sought “to compel the trial
court to remove a condition on an independent medical examination”).
12 A line of cases follows Simmons in the context of civil cases concerning sexual predator litigation.
See generally TEX. HEALTH & SAFETY CODE ANN. §§ 84.001–.153 (codifying the civil commitment of sexually
violent predators). These cases hold that the sexual predator act, which provides that a person subject to
a civil commitment proceeding is entitled to the assistance of counsel, does not require the presence of
counsel at the post-petition expert examination. See, e.g., In re Commitment of Wirtz, 451 S.W.3d 462,
469 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“We hold that under the circumstances of this case,
Section 841.144(a) of the Act did not require the attorney’s presence at the post-petition psychiatric
examination.”); In re Commitment of Smith, 422 S.W.3d 802, 805–07 (Tex. App.—Beaumont 2014, pet.
denied) (concluding “that neither the . . . statute nor the Fourteenth Amendment require that counsel be
present during a psychiatrist’s post-petition examination.”).
21
The plaintiff contended that the issue was “one of law rather than fact” and that she had
an “absolute right as a matter of law to have her attorney present at the examination.” Id.
The Texarkana Court of Appeals held that the right to have one’s attorney present at a
court-ordered examination “is a matter to be determined within the discretion of the trial
court on a case-by-case basis according to evidence showing a particularized need
therefor.” Id. The court denied relief because “relator has produced no facts showing a
need for the presence of her attorney.” Id.
As a preliminary matter, Doe asserts we should not apply the foregoing federal
authority—which equates the presence of a third party at an examination with recording
or videotaping the examination—to this case. In her response to the petition for writ of
mandamus, she argues that this Court should reject Society’s “attempt to demonstrate
such an equivocation” on grounds it is contrary to the record. She reiterates the
arguments that her attorneys made at the hearing on Society’s motion for reconsideration,
to wit, that “[n]obody has to know that there’s a recording device in there” and that the
recording device could be “something simple that’s out of the way, that’s unobtrusive.”
Doe’s attorneys thus submit that the trial court properly rejected case law that equates
what they term as a “secret recording” with the “obvious physical presence of a third party
during an examination.” Doe’s counsel argues that Hobday’s assertion that a recording
device would render the examination less accurate “necessarily presupposes that the
examinee was aware of the recording device—which—as discussed above—is not the
case here.”
Consistent with the majority of federal courts who have considered this issue, we
see no need to apply separate rules to determine whether a third party can be present at
22
an examination or whether the examination can be videotaped or recorded. See
Calderon, 258 F.R.D. at 529; Favale, 235 F.R.D. at 557; Hertenstein, 189 F.R.D. at 628;
Holland, 182 F.R.D. at 495. The distinctions between allowing an observer to be present,
or recording the examination, or the obtrusiveness of the recording device, may be factors
to be considered in the overall analysis regarding good cause for the accommodation, but
the distinctions are not determinative. And, even if we were to conclude otherwise, we
question any suggestion that the examination could proceed without Doe’s attorneys
informing her that her psychological examination by Hobday would be videotaped.
Videotaping Doe during a psychological examination performed for the purposes of
litigation, without disclosing to her that the examination would be recorded, or the
possibility and likelihood that the videotape would be viewed by third parties, presents
fundamental problems pertaining to consent, privacy, and re-victimization. Although we
need not further address this issue here, we are profoundly skeptical that proceeding in
such a manner would comport with the rules of ethics and fiduciary responsibilities
imbedded in the attorney-client relationship and the ethical and professional obligations
of the examiner.
Based on the foregoing, we conclude that Doe must show special circumstances
or a particularized need, as in Simmons and consistent with federal authority, supported
by evidence including specific facts amounting to good cause, for video recording her
examination. See Simmons, 900 S.W.2d at 403; see also Ornelas, 292 F.R.D. at 39. In
this regard, we note that both federal courts and our Texas Supreme Court have
emphasized the importance of allowing the moving party’s expert the “same opportunity”
as the opposing party’s expert “to fully develop and present [her] opinion, ensuring a fair
23
trial.” In re H.E.B. Grocery Co., 492 S.W.3d at 304–05; see Tarte, 249 F.R.D. at 859;
Favale, 235 F.R.D. at 557. Because Doe was examined by her expert without videotaping
the examination, she should not require Society’s expert to do otherwise in the absence
of special conditions and a factual basis demonstrating good cause.
VI. GOOD CAUSE
We determine, based on the record presented, whether Doe has met her burden
to show special circumstances or a particularized need, unique to her situation, supported
by specific facts, that provide good cause for allowing the examination to be videotaped.
See Simmons, 900 S.W.2d at 403; Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at
557. Doe asserts that good cause is shown for videotaping Hobday’s examination
because her case does not arise out of a “routine” claim but instead involves allegations
that relator’s employee intentionally raped her as a child. Doe’s attorneys assert that they
are “reluctant to require her to participate in a one-on-one session with a person
investigating her claims on [Society’s] behalf without some guarantee of knowing what
transpired,” that they have “offered evidence of the trauma that she has experienced,”
and that they have “expressly stated the intent to ‘make sure that she is not revictimized
again.’” Doe contends that, given the “undisputed discretion that trial courts have when
determining the conditions of an independent medical examination, this Court should not
conclude that the trial court’s decision to make an exception to the usual practice for a
rape victim was done ‘without reference to guiding rules or principles.’”
TAASA similarly asserts in its amicus curiae brief that in sexual abuse cases, such
as the case at bar, “trial courts have a particular duty to take into account the unique
needs of the sexual assault survivor.” It argues that “the trial court made the sound
24
decision, firmly grounded in legal precedent and in public policy, that a sexual assault
survivor should have the safeguard of a recording during her mental examination by the
Relator’s expert.”
We appreciate the arguments made by Doe and TAASA regarding the nature of
the injury at issue in this case, and we sympathize with the challenges and obstacles
presented by the factual allegations presented here. However, we determine good cause
for allowing the examination to be videotaped on a case-by-case basis according to
evidence showing a particularized need, rather than by a categorical determination based
on the underlying tort or cause of action, or the nature of the injury alleged. See Simmons,
900 S.W.2d at 403; Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at 557.
Doe asserts that recording is necessary to provide “some guarantee of knowing
what transpired.” However, without more, this rationale does not provide good cause for
videotaping the exam. See Ornelas, 292 F.R.D. at 396 (rejecting a request for recording
where the plaintiff requested an audio or video recording of his examinations based on
“the Plaintiff’s right to preserve evidence of the nature of the examination, the accuracy
of the examiner’s notes or recollections[,] and the tones of voice”); Calderon, 258 F.R.D.
at 529 (rejecting the argument that “videotaping the [examination] will avoid discrepancies
that may arise over statements made by Plaintiff during the examination in response to
the examining physician’s inquiries and reduce the prospective need for court
intervention”).
Doe further expresses concerns regarding whether Hobday will “revictimize” Doe
or whether Hobday will improperly conduct the examination as a “de facto deposition.”
Doe’s arguments are speculative in nature and are wholly unsupported by any evidence.
25
There is no factual basis, in this record, to assume that Hobday will terrorize Doe or turn
the examination into a deposition. See, e.g., Greenhorn., 216 F.R.D. at 654 (“The court
assumes that Dr. Stillings will exercise sound professional discretion in making such
inquiries and will not pursue private information that is wholly unrelated to plaintiff’s claims
of injury and emotional distress.”). Similarly, there is nothing in this record which would
suggest that Hobday will not conduct an examination that is appropriate to Doe’s specific
mental health needs. We finally note that, fundamentally, an examination conducted for
purposes of litigation, pursuant to the rules and under the direction of a court, should not
be classified as a “revictimization.” In this regard, we observe that Doe instituted the
underlying litigation and placed her mental condition in controversy.
Finally, Doe has not alleged that she suffers a disability that would militate in favor
of videotaping the examination or that she is unable to communicate with counsel
regarding the content and procedure for the examination. Doe’s counsel advised the trial
court in her November 19, 2018 letter brief that, as discussed in Doyle’s report, Doe had
an 11th grade education, was classified as “Special Ed” in school, and was currently trying
to obtain her GED. In this proceeding, however, Doe does not make any arguments that
these matters necessitate videotaping the examination. And, there is no evidence or
testimony in the record that these matters provide good cause for videotaping Doe’s
examination.
Utilizing the fair trial standard, and considering the specific facts presented in this
case, we conclude that Doe has not shown good cause for videotaping the examination.
Doe has not met her burden to show special circumstances or a particularized need,
unique to her situation, supported by specific facts, that provide good cause for allowing
26
the examination to be videotaped. See Simmons, 900 S.W.2d at 403; Ornelas, 292
F.R.D. at 397; Favale, 235 F.R.D. at 557. 13 In this regard, Hobday has testified that she
does not allow examinations to be recorded, that recording the examination would
negatively impact the validity of her evaluation, and that ordering her examination to be
recorded would not provide her with the same and equal ability to evaluate Doe under the
same circumstances as Doyle. We note that these factual allegations in the record
resonate strongly with the supreme court’s directive to ensure that court-ordered
examinations are conducted in such a manner as to ensure a fair trial. See In re H.E.B.
Grocery Co., 492 S.W.3d at 304–05 (concluding that the defense’s expert required “the
same opportunity” as the plaintiff’s expert “to fully develop and present his opinion,
ensuring a fair trial”).
VII. REMEDY BY APPEAL
We have concluded that the trial court abused its discretion by permitting Doe’s
examination to be videotaped. However, we will not grant mandamus relief if an appeal
would provide a clear and adequate remedy. See In re Nationwide Ins. Co. of Am., 494
S.W.3d at 712; In re H.E.B. Grocery Co., 492 S.W.3d at 304. Doe asserts that Society
has an adequate remedy by appeal to cure any alleged error in allowing the examination
to be videotaped and that allowing the examination to be videotaped does not somehow
“ring a bell that cannot be unrung.” See, e.g., Paxton v City of Dallas, 509 S.W.3d 247,
261 (Tex. 2017) (“Once information has been disclosed, loss of confidentiality is
13 Given our analysis here and the applicable burden of proof for allowing the examination to be
videotaped, we need not address Doe’s complaint that Hobday’s affidavit is conclusory. See Starwood
Mgmt., LLC v. Swaim, 530 S.W.3d 673, 679 (Tex. 2017) (per curiam) (stating that conclusory affidavits are
not probative). Doe’s sole argument offered in support of this contention is that Hobday “is attempting to
convince this Court that she has personal knowledge of the nature of answers to questions that she has
not asked yet” and such an assertion “is obviously conclusory.”
27
irreversible. The bell cannot be unrung, and neither dissemination nor use can be
effectively restrained.”). Doe asserts that the ruling at issue does not severely
compromise Society’s ability to develop a defense to her claims, nor does it “deny this
Court the ability to evaluate the effect of the trial court’s error on appeal.” Doe contends
that if Society concludes that a recorded examination is insufficient to allow it to prepare
for trial, “it can make an appropriate request to the trial court at that time.” Doe further
argues that Society “cannot possibly identify the harm from a recorded examination that
has not yet occurred,” and therefore, Society possesses an adequate remedy by appeal.
We determine the adequacy of Society’s appellate remedy by balancing the
benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d
at 528; In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36. Balancing the benefits
against the detriments and examining the specific facts and circumstances of this case,
we conclude that appeal is an inadequate remedy. In re McAllen Med. Ctr., Inc., 275
S.W.3d at 464 (stating that the cost-benefit analysis regarding the adequacy of a remedy
by appeal “depends heavily on circumstances” and “must be guided by analysis of
principles rather than simple rules that treat cases as categories”). Society’s “defense in
this case hinges in large part on its challenges to the nature, extent, and cause” of Doe’s
injuries, and these issues “in turn depend significantly on competing expert testimony.”
See In re H.E.B. Grocery Co., 492 S.W.3d at 304. Society seeks to allow Hobday the
same opportunity as Doyle to fully develop and present her opinion, ensuring a fair trial.
See id. In this regard, Doyle’s examination was not videotaped or otherwise recorded.
Further, Hobday has provided explicit testimony that videotaping the examination would
skew the examination and impair the accuracy of the results. The evidence presented in
28
this case suggests that the differing procedures or conditions on the examination will not
provide the parties with equivalent discovery. We thus conclude that Society’s ability to
present a viable defense at trial is vitiated or severely compromised by the trial court’s
discovery error. See id. And, we would be unable to evaluate the extent to which
Hobday’s evaluation might be impaired or inadequate on appellate review. See In re Ten
Hagan Excavating, Inc., 435 S.W.3d at 864 (concluding that the denial of a request for an
examination denied the appellate court “the ability to evaluate the effect of the trial court’s
error on appeal”); see also In re Offshore Marine Contractors, Inc., 496 S.W.3d at 804.
We conclude that Society lacks an adequate remedy by appeal.
VIII. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the reply, is of the opinion that Society has met its burden to obtain
relief. Accordingly, we conditionally grant relief and direct the trial court to vacate its
November 27, 2018 order allowing for the examination to be recorded by video and its
December 12, 2018 order denying reconsideration of that order. Our writ will issue only
if the trial court fails to comply.
LETICIA HINOJOSA
Justice
Delivered and filed the
23rd day of July, 2019.
29