in Re Pablo Reyes ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00071-CV
___________________________
IN RE PABLO REYES, Relator
Original Proceeding
Trial Court No. 19-4237-16
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Relator Pablo Reyes sued Real Party in Interest Keith Hamaker, alleging that he
injured Reyes’s right arm. Hamaker filed a motion for an independent medical
examination, and Respondent granted the motion in an order that states,
ON THIS day came on to be heard DEFENDANT KEITH
HAMAKER’S Motion for Independent Medical Examination and the
Court having considered said Motion finds that same should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED and
DECREED that DEFENDANT KEITH HAMAKER’s Motion for
Independent Medical Examination be GRANTED and that Plaintiff is
ordered to submit to an independent medical examination no later than
the 15th day of March, 2020 or as agreed to by counsel.
In four issues in his petition for writ of mandamus, Reyes complains that
Respondent’s order is an abuse of discretion because it is overbroad and over-
intrusive and argues that he is entitled to mandamus relief because he has no adequate
remedy by appeal.1 We requested a response from Hamaker. See Tex. R. App. P.
52.8(b)(1) (stating that the court must request a response if the court is of the
tentative opinion that relator is entitled to the relief sought or if a serious question
concerning the relief requires further consideration).
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Reyes asks whether Respondent abused her discretion by granting the motion
as to his “unrelated Left Arm, which is not in controversy in the underlying lawsuit,”
by failing to follow Texas Rule of Civil Procedure 204.1(d)’s specificity requirements,
and by failing to require Hamaker to show that the desired information cannot be
obtained by less intrusive means, and he complains that he has no adequate remedy by
appeal because the order impairs his right to a fair trial.
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We may grant mandamus relief from a discovery order only when (1) the trial
court’s decision is so arbitrary and unreasonable that it is “a clear and prejudicial error
of law” and (2) the relator has no adequate remedy by appeal. In re State Farm Lloyds,
520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding). A trial court’s clear failure to
correctly apply the law is an abuse of discretion. In re M-I L.L.C., 505 S.W.3d 569,
574 (Tex. 2016) (orig. proceeding). And appeal is inadequate when a party is in
danger of losing substantial rights, such as when an appellate court could not cure the
trial court’s discovery error. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211
(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992)
(orig. proceeding).
The scope of discovery is generally within the trial court’s discretion so long as
a discovery order does not exceed what the Texas Rules of Civil Procedure permit.
See Tex. R. Civ. P. 192.4; State Farm Lloyds, 520 S.W.3d at 604. As applicable here,
under Rule 204.1, a trial court may issue an order for examination only for good cause
shown and only when the party’s physical condition is in controversy, and the order
“must be in writing and must specify the time, place, manner, conditions, and scope
of the examination” and by whom it is to be made. See Tex. R. Civ. P. 204.1(c)(1), (d).
“[G]ood cause” requires the movant to show that the requested examination is
relevant to issues in controversy and will produce or likely lead to relevant evidence,
to establish a reasonable nexus between the requested examination and the condition
in controversy, and to demonstrate that the desired information cannot be obtained
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by less intrusive means. In re H.E.B. Grocery Co., 492 S.W.3d 300, 303–04 (Tex. 2016)
(orig. proceeding) (focusing on fairness in battle of experts).
Here, on its face, Respondent’s order does not set out the place, manner,
conditions, or scope of the examination, or by whom it is to be made. See In re Sharaf,
No. 03-18-00671-CV, 2018 WL 5796977, at *3 (Tex. App.—Austin Nov. 5, 2018,
orig. proceeding) (mem. op.) (granting partial relief when “the order does not limit the
scope of the examination to the identified testing and interview or place other
parameters on the examination, such as limiting the testing to standardized testing or
placing a limitation on the duration of the testing and interview”). Because the order
demonstrates a clear failure to comply with Rule 204.1’s requirements, we sustain the
relevant portions of Reyes’s four issues and conditionally grant partial relief so that
Respondent may tailor the order to comply with Rule 204.1’s requirements, thereby
limiting the order to that which fairness requires. See, e.g., In re Offshore Marine
Contractors, Inc., 496 S.W.3d 796, 801–03 (Tex. App.—Houston [1st Dist.] 2016, orig.
proceeding) (discussing less intrusive means). We are confident that Respondent will
modify the order in accordance with this opinion and will instruct our clerk to issue
the writ only if Respondent fails to do so. All other relief is denied.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: March 19, 2020
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