in Re Auburn Creek Limited Partnership The Lynd Company Lynd Family Limited Partnership And Forty Four Eleven, Llc

Supreme Court of Texas
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No. 21-0886
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In re Auburn Creek Limited Partnership; The Lynd Company;
Lynd Family Limited Partnership; and Forty Four Eleven, LLC,
Relators

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On Petition for Writ of Mandamus
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PER CURIAM

Justice Lehrmann did not participate in this decision.

This mandamus proceeding concerns a motion to compel a
medical examination under Texas Rule of Civil Procedure 204.1.
Because the motion was filed before the close of discovery and the trial
court clearly abused its discretion in concluding that relators did not
establish good cause for the examination, we conditionally grant relief.
Real parties in interest, six members of the Pau family, sued
relators, Auburn Creek Limited Partnership, the Lynd Family Limited
Partnership, The Lynd Company, and Forty Four Eleven, LLC
(collectively, Auburn Creek). The Paus seek $33 million in economic
damages, plus past and future non-economic damages, that they allege
were caused by carbon-monoxide exposure in an apartment they leased
from Auburn Creek. The Paus designated Dr. Nadia Webb as a medical
expert. Dr. Webb evaluated members of the Pau family between October
2018 and December 2020.
Auburn Creek designated Dr. Gilbert Martinez as its medical
expert. Dr. Martinez produced a preliminary report for each member of
the Pau family. These reports were based solely on medical records, as
Dr. Martinez had not personally examined any member of the family.
On June 1, 2021, Auburn Creek filed a Rule 204.1 motion to
compel a neuropsychological exam for each of the Paus. With the
motion, Auburn Creek included an affidavit from Dr. Martinez. In the
affidavit, Dr. Martinez averred that he could not ethically express a
medical opinion based solely on records. He included a list of fifty-three
possible tests for the Pau adults and twenty-three tests for the children.
Dr. Martinez proposed to begin with a 90- to 120-minute clinical
interview, followed by tests from the provided list for up to eight hours
per family member. He testified that he could not be certain exactly
which tests would be performed until he met with the patients. On June
6, the trial court denied the motion without prejudice, concluding that
the scope of the exams was not sufficiently circumscribed.1
On July 15, Auburn Creek filed a motion for reconsideration of
the motion to compel, attaching a supplemental affidavit from Dr.
Martinez. Dr. Martinez reduced the list of possible tests from fifty-three
to forty-four for the adults and from twenty-three to twenty-two for the

1 In Bexar County Civil District Courts, the local rules establish a
central-docketing system that allows for more than one judge to preside over
discovery hearings and other matters that do not require witnesses. The
relevant orders in this case were signed by three different judges.

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children. Dr. Martinez also testified that he could not be more specific
about which tests might be performed because that could bias the
patients’ results and introduce error.
Auburn Creek also filed a motion for continuance, which was
granted. The discovery deadline was set for September 7, with limited
exceptions not related to the neuropsychological exams at issue here.
The trial court heard the motion to reconsider on September 2.
The court denied the motion, concluding that the testing—which would
take up to ten hours per family member—would necessarily extend
beyond the September 7 discovery deadline. The court also ruled that
Dr. Martinez’s proposed list of tests still failed to satisfy Rule 204.1’s
scope requirements.
The Paus subsequently moved to strike Dr. Martinez as an expert
for Auburn Creek, and the court granted the motion in part. The court
ordered that Dr. Martinez could not opine on the nature and extent of
the Paus’ injuries, at least in part because Auburn Creek admitted that
Dr. Martinez could not render such an opinion without conducting his
own exam. The court of appeals denied Auburn Creek’s request for
mandamus relief in a nonsubstantive opinion. ___ S.W.3d ___, 2021 WL
4556062, at *1 (Tex. App.—San Antonio Oct. 6, 2021, orig. proceeding).
Auburn Creek now seeks mandamus relief from this Court.
Because we agree with Auburn Creek that its Rule 204.1 motion was
timely and the trial court clearly abused its discretion by concluding that
Auburn Creek had not shown good cause for the exams, we conditionally
grant relief.

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Mandamus is an extraordinary remedy that is granted only when
the relator shows that the trial court clearly abused its discretion and
no adequate appellate remedy exists. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36 (Tex. 2004).
When a trial court fails “to analyze or apply the law correctly,” it
has clearly abused its discretion. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992). Essentially, the trial court has no discretion in determining
the law or applying the law to the facts. Id.
Here, the trial court failed to apply Rule 204.1 correctly to the
facts.
The parties dispute (1) whether the motion was timely and
(2) whether Auburn Creek showed good cause for the exams. We
address each dispute in turn.
Regarding timeliness, the Pau family argues that the motion to
reconsider the denial of the motion to compel was not timely and that
Auburn Creek generally was not diligent in seeking the exam. The trial
court did not hear the motion to reconsider until September 3, so the
Paus assert that the court did not abuse its discretion because the exams
could not have been completed by the September 7 discovery deadline.
We disagree. Auburn Creek did timely seek the exams, and the delay in
hearing the motion to reconsider was outside of Auburn Creek’s control.
A party must move to compel an examination “no later than 30
days before the end of any applicable discovery period.” TEX. R. CIV. P.
204.1(a). Given the September 7 discovery deadline, the last day to file
a Rule 204.1 motion was August 8. Auburn Creek filed its initial motion
to compel the exams on June 1. The trial court denied the motion but

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invited Auburn Creek to refile. Auburn Creek refiled on July 15, again
prior to the Rule 204.1 deadline. Thus, Auburn Creek met the deadline
set by the Rule.
Although the trial court did not hold a hearing on this motion to
reconsider until September 3, the delay was due to factors outside of
Auburn Creek’s control. The hearing was moved due to scheduling
conflicts of the Paus’ counsel and the trial court’s availability, as well as
a period of delay while Auburn Creek’s counsel recovered from COVID.
To the extent that the trial court denied the motion to reconsider based
on timeliness, that was a clear abuse of discretion.
Turning to the merits of the motion, we conclude that Auburn
Creek satisfied Rule 204.1’s requirements. A trial court “may” compel
examination “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). Although the rule uses the permissive “may,” the trial
court does not have unfettered discretion to deny requests for exams.
Cf. Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011). To be sure, Rule 204.1
does not grant an automatic right to an exam. In re Ten Hagen
Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig.
proceeding). But when the trial court reasonably could have reached
only one conclusion, “the discretion vested in the court is for all practical
purposes destroyed.” Id.; see Walker, 827 S.W.2d at 840.
Here, the trial court determined that the Paus’
neuropsychological conditions had been placed in controversy. Thus, the
only disputed issue is whether Auburn Creek showed good cause.

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The purpose of the rule’s “good-cause requirement is to balance
the movant’s right to a fair trial and the other party’s right to privacy.”
In re H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016). To establish
good cause, the 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 controversy, and (3) the desired information cannot be
obtained by less intrusive means. Id. Auburn Creek’s original motion
and its motion for reconsideration met all three requirements.
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. See id. Here, Dr.
Martinez proposed a battery of tests to evaluate the Paus’ claims of brain
injuries due to carbon-monoxide exposure, including the existence,
cause, nature, extent, and proper treatment of any injuries. The Paus’
expert, Dr. Webb, had conducted twenty-seven different tests on one of
the minor plaintiffs to assess cognitive abilities, language, attention,
and memory. Auburn Creek seeks a similar opportunity for Dr.
Martinez to evaluate the claimed mental injuries and to develop facts
that might contradict Dr. Webb’s opinion. Dr. Martinez also testified
that additional testing is necessary because Dr. Webb’s tests “did not
allow for sufficiently detailed examination of performance validity,
emotional functioning, and memory which would be needed to
understand and rule out all potential causes of the [Paus’] reported
memory deficits.” This record shows that Dr. Martinez’s tests will likely
lead to the discovery of relevant evidence.

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Turning to reasonable nexus, a movant must provide more than
conclusory allegations and show more than mere relevance to the case.
Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988); see
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). Rather, there must
be evidence that the requested examination “directly relates to the
condition in controversy.” H.E.B., 492 S.W.3d at 303. The parties
dispute whether Dr. Martinez sufficiently limited the scope of the
examinations, and the trial court denied both motions based on this
requirement, at least in part.
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 Paus’ behalf. Although Dr. Martinez
provided a lengthy list of possible tests, many of which were similar to
the ones Dr. Webb performed, the Paus 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.2 This evidence shows a reasonable
nexus between the proposed examinations and the conditions at issue.

2 The Paus’ reliance on In re Estabrook ignores these facts. No.
10-20-00175-CV, 2020 WL 6192923 (Tex. App.—Waco Oct. 21, 2020, orig.
proceeding). In Estabrook, a single plaintiff alleged symptoms limited to
depression and PTSD. Id. at *4. Here, the six Pau family members asserted a

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Finally, the movant must show that the exam would be the least
intrusive means of discovering the desired information “in light of the
fair trial standard.” In re Offshore Marine Contractors, Inc., 496 S.W.3d
796, 800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). This
requirement focuses on the importance of the discovery sought and the
ability to find it elsewhere. In particular, courts should consider
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. See H.E.B., 492 S.W.3d at
303-04.
In H.E.B., the defendant’s expert explained why a treating doctor
was in a better position than a records-review doctor to examine and
opine on the plaintiff’s alleged injuries. See id. The plaintiff intended
to prove causation and damages through expert testimony from doctors
who had examined the plaintiff. Id. We concluded that the results of
the defendant’s requested exam went to the heart of its defense strategy
and that requiring the defendant’s expert to testify at trial without the
exam would place him at a distinct disadvantage because it would allow
the plaintiff to call into question his credibility in front of the jury. Id.
Similarly, Dr. Martinez addressed in his affidavit the need to
examine the Paus before opining on the nature, cause, and extent of
their injuries. The Paus’ expert, Dr. Webb, personally examined them
and will testify at trial about those exams. Dr. Martinez explained that
a deposition of Dr. Webb conducted by a lawyer would be insufficient to

much broader list of conditions. Further, the proposed orders in this case are
more detailed than the proposal in Estabrook.

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obtain the information required to rebut or respond to Dr. Webb’s
neuropsychological opinions. And without conducting his own exams,
Dr. Martinez predicted that he would likely be barred from testifying on
some issues or subjected to critical cross-examination for lack of
first-hand knowledge. Indeed, the trial court later struck Dr. Martinez’s
testimony in part, preventing him from testifying about the Paus’
injuries without conducting his own exam. In other words, absent an
exam, Auburn Creek would lose the battle of the experts. See In re
Redbird Trails Apartments, No. 05-20-00284-CV, 2020 WL 3445811, at
*3 (Tex. App.—Dallas June 24, 2020, orig. proceeding).
For these reasons, Auburn Creek has shown good cause to compel
a medical examination of the opposing parties. Because the trial court
reasonably could have reached only one conclusion on these facts, it
clearly abused its discretion in denying the motions.
“Notwithstanding that abuse of discretion, we will not grant
mandamus relief if there is a clear and adequate remedy at law, such as
a normal appeal.” H.E.B., 492 S.W.3d at 304 (internal quotation marks
omitted). We conduct a benefits-and-detriments analysis to determine
whether mandamus relief is appropriate. In re McAllen Med. Ctr., 275
S.W.3d 458, 464 (Tex. 2008). Just as we did in H.E.B., we conclude that
mandamus relief is appropriate here. See 492 S.W.3d at 304-05.
Auburn Creek’s defense largely turns on its challenges regarding the
cause, nature, and extent of the Paus’ brain injuries, and a fair
resolution of those challenges at trial depends on competing expert
testimony that Auburn Creek has not been given an opportunity to
develop. Because Auburn Creek’s ability to present a viable defense has

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been severely compromised, it lacks an adequate remedy by appeal.
McAllen Med. Ctr., 275 S.W.3d at 468. The orders denying the requested
exams should be withdrawn.
Finally, Auburn Creek also challenges the trial court’s order
partially striking Dr. Martinez as an expert witness on the ground that
he did not offer any opinions in his report. Auburn Creek conceded that
Dr. Martinez would not be able to opine on the nature and cause of the
injuries without an exam. Because the erroneous denial of an
examination affected the trial court’s ruling on the motion to strike, that
ruling should be reconsidered.
Accordingly, without hearing oral argument, see TEX. R. APP. P.
52.8(c), we conditionally grant Auburn Creek’s petition for writ of
mandamus. We direct the trial court to withdraw its orders denying the
motion to compel and partially striking the expert and to sign an order
requiring the Paus to submit to the examination proposed in Auburn
Creek’s motion for reconsideration on reasonable terms and conditions.3
Our writ will issue only if the trial court does not comply.

OPINION DELIVERED: December 2, 2022

3The trial court should address in the first instance the Paus’ requests
to have a parent present when the minor plaintiffs are examined and to have
an interpreter present when necessary. Auburn Creek represents that it does
not oppose these requests.

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