In Re AJM Construction Company, Inc. and Resicom, Inc. v. the State of Texas

Opinion issued August 26, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00283-CV
———————————
IN RE AJM CONSTRUCTION COMPANY, INC. AND RESICOM, INC.,
Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relators AJM Construction Company, Inc. and Resicom, Inc. seek a writ of

mandamus challenging the portion of the trial court’s March 6, 2025 order granting

their motion to compel the neuropsychological examination of Real Party in Interest

Carlos Trevino, but directing that the examination be audio and video recorded.1

1
The underlying case is Carlos Trevino v. AJM Construction Company Inc. and
Resicom, Inc., cause number 2022-07009, pending in the 125th District Court of
Harris County, Texas, the Honorable Kyle Carter presiding.
Together with their petition for writ of mandamus, Relators filed a motion for

temporary relief, which this Court granted, staying all trial court proceedings until

resolution of the mandamus petition.

We conditionally grant mandamus relief.

Background

This case arises from a personal injury suit filed by Real Party in Interest

Carlos Trevino against Relators AJM Construction Company, Inc. and Resicom, Inc.

for injuries allegedly resulting from a motor vehicle collision in July 2020, involving

Trevino’s car and another vehicle. Trevino alleges that Relators removed a stop sign

while performing construction work, resulting in the accident. He sued Relators for

negligence and gross negligence, seeking to recover damages for physical pain,

mental anguish, physical disfigurement, physical impairment, and medical care

expenses, and exemplary damages.

Trevino initially was diagnosed with spasm to the back; sprain to the neck,

shoulder, ankle, and knee; and post-traumatic headaches. He later was examined by

neurologist Dr. Andres Keichian who, following a series of tests, diagnosed Trevino

with traumatic brain injury. Trevino also underwent a neuropsychological

evaluation that was performed by Dr. Gabriel Jasso, a licensed neuropsychologist.

The evaluation consisted of a four-hour “Examinee Interview &

Neurobehavioral/Mental Status Exam,” a ten-hour “Neuropsychological [T]esting

2
[E]valuation [S]ervices,” and a ten-hour “Neuropsychological Testing & Scoring.”

Based on these evaluations, Dr. Jasso concluded that Trevino’s “physical and

emotional condition [were] interfering with his cognitive abilities.” Trevino

designated Dr. Jasso and Dr. Keichian as testifying experts and Dr. Jasso provided a

report.

Relators retained Dr. Corwin Boake, a board-certified clinical

neuropsychologist, to conduct an independent medical examination (“IME”) of

Trevino. Trevino agreed to the IME, but only on the condition that it be video

recorded, which Relators opposed. On November 14, 2024, Relators moved to

compel Trevino’s IME under Rule of Civil Procedure 204.1. Relying on In re

Society of Our Lady of the Most Holy Trinity, Relators argued that Trevino’s

examination should be ordered without it being videotaped because Trevino had not

shown good cause in the form of special circumstances or particular need to warrant

the video recording.2 Relators stated the examination could occur at a mutually

agreeable location and would last no longer than two or three hours.

In support of their motion to compel, Relators submitted the deposition

testimony of Trevino’s neurologist, Dr. Keichian, as well as the medical report from

Trevino’s neuropsychologist, Dr. Jasso. Although Trevino had complained about

2
In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d 1 (Tex. App.—Corpus
Christi-Edinburgh 2019, orig. proceeding).
3
suffering from post-traumatic stress disorder and difficulty in “remembering

important things that must be done,” Dr. Jasso found that Trevino’s “overall mental

status seemed normal,” noting that he was “oriented” and “cooperative” during the

evaluation. Dr. Jasso also noted that Trevino “answered questions appropriately[,]”

“provided evidence of good conation[,]” and “displayed no evidence of a serious

mental illness . . . .” Relators later filed a supplemental motion to compel attaching

as an exhibit the affidavit of their expert, Dr. Boake. Explaining why he opposed

the videorecording of his neuropsychological examination of Trevino, Dr. Boake

stated there “is a conflict between the proposed recording . . . and [his] obligation to

comply with guidelines of neuropsychology organizations.” He further explained

that recording his examination of Trevino “would create a deviation from standard

neuropsychological procedures” including a recent guideline stating that “recording

of the administration of neuropsychological tests is not permitted” because

[t]hird party observation, whether in person, recorded or electronic,
remains a potential threat to the validity and reliability of evaluation
results, and violates test security guidelines, ethical principles and
standards of conduct in the field.

...

[o]bservation or recording of test administration violates ethical
standards that require psychologists to strive to obtain test data that are
valid and that represent the examinee’s best possible performance.

4
Dr. Boake opined that given these ethical considerations and related prohibition, he

would not be able to conduct a standard examination of Trevino if his

neuropsychological examination were recorded. Instead, he would have “to restrict

[his] examination” to “mostly checklists and questionnaires” and he would have to

omit “most routine neuropsychological tests.”

Trevino responded that Relators’ motion should be denied because it was

untimely. Trevino further argued that to the extent Relators’ motion was granted,

the IME should be video recorded. Relying on this Court’s opinion in In re UV

Logistics, LLC, 682 S.W.3d 612, 623–24 (Tex. App.—Houston [1st Dist.] 2023,

orig. proceeding), Trevino argued that “special circumstances that might support

recording [of an IME] include where the examinee suffers from a disability that

might impair his ability to communicate with counsel [about] what occurs during the

examination.” Trevino attached to his response excerpts from the depositions of Dr.

Keichian and his mother, Carolina Tejeda, as well as medical reports from Dr.

Keichian. Trevino noted that Dr. Keichian testified that his “symptoms after the car

crash include[d] memory problems, difficulty concentrating, headaches, and

decreased executive functions,” and that his mother testified he “ha[d] constant

memory issues.” According to Trevino, this evidence “show[ed] that [Trevino]

ha[d] memory and focus issues that are constant and unbearable and that he ha[d]

5
memory problems, difficulty concentrating, decreased executive functions . . . which

likely will affect his ability to communicate with his attorney[] about the testing.”3

The trial court held a hearing on Relators’ motion to compel. Relators argued

that Trevino’s opposition to their motion to compel did not “rise[] to the level of

requiring a videotaping of the [IME]” and that a recording would “inhibit [Dr.

Boake’s] ability to conduct the exam” because he “wo[uldn’t] be able to conduct [a]

full battery of tests . . . .” Relators further argued that requiring that the examination

be recorded would violate the parties’ “equal footing” as Trevino’s examination by

his own doctor was not audio or video recorded, and “[t]here were apparently no

issues that came up during that exam where [Trevino’s] attorney felt like his client

wasn’t going to be able to communicate what happened in that exam.” Relators

noted that during Trevino’s deposition, “[h]e was able to clearly and accurately

communicate what happened to him during his wreck, [and] what his symptoms

were.” Relators informed the court that during the IME, Dr. Boake would not ask

Trevino questions about the accident, and would produce “a report that[] . . . clearly

detail[s] the testing that was done and what happened in that testing[,]” and as such,

there was no “valid reason for the [IME] to be videotaped.”

3
Trevino also submitted an order from a different trial court finding Dr. Boake in
contempt of court for not providing unaltered raw data, arguing that it “should not
[be] presume[d] that Dr. Boake will follow court orders.”
6
In response, Trevino argued that he “ha[d] shown a particularized need or

special circumstances for allowing [the IME] to be videotaped.” Trevino compared

his evidence to that presented by the real parties in interest in UV Logistics, where

this Court held relator was not entitled to mandamus relief stemming from the trial

court’s order directing that the IME of real parties be video recorded. 682 S.W.3d

at 627. He compared himself to the real parties in UV Logistics, arguing that his

case was “something similar” in that Dr. Keichian had diagnosed him with

“traumatic brain jury” and his mother testified his “memory [wa]s really impaired.”

Trevino differentiated between being examined by Dr. Boake, for which he

requested recording, and being examined by his treating doctor, which was not

recorded, stating that his doctor “meant to help him get better,” and was not hired

“solely for the purpose of litigation.”

The trial court orally granted Relators’ motion to compel an IME, but it

ordered that the IME be videotaped. The trial court later signed an order on March

6, 2025, granting Relators’ motion to compel and ordering that Trevino’s IME be

audio and video recorded.

Relators seek mandamus relief arguing the trial court abused its discretion in

ordering that the IME be video and audio recorded, and that they lack an adequate

remedy by appeal.

7
Standard of Review

Mandamus is an extraordinary remedy that is available only in limited

circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.

proceeding). To secure mandamus relief, a relator must establish that (1) the trial

court committed a clear abuse of discretion or violated a duty imposed by law, and

(2) there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d

124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when

“it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or if it clearly fails to correctly analyze or apply the law.” In

re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (internal quotation marks and citations omitted); see also In re Bailey-

Newell, 439 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2014, orig.

proceeding). “A trial court has no discretion in determining what the law is or

applying the law to the facts.” Walker, 827 S.W.2d at 840 (internal quotation marks

omitted).

When resolving factual issues or matters committed to the trial court’s

discretion, this Court may not substitute its judgment for that of the trial court. Id.

at 839–40; see also In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding).

“In other words, under an abuse of discretion standard, this Court should defer to the

trial court’s factual determinations if they are supported by the evidence.” In re

8
Reedle, No. 05-16-01483-CV, 2017 WL 944030, at *2 (Tex. App.—Dallas March

10, 2017, orig. proceeding) (mem. op) (citing In re Labatt Food Serv., L.P., 279

S.W.3d 640, 643 (Tex. 2009) (orig. proceeding)). Less deference is afforded the

trial court’s determination of legal principles that control its ruling. See Walker, 827

S.W.2d at 840. A trial court has no discretion in determining what the law is or in

applying the law to the facts of the case and thus, a clear failure by the trial court to

analyze or apply the law constitutes an abuse of discretion. See id.

Abuse of Discretion

Texas Rule of Civil Procedure 204 governs the procedures for court-ordered

physical and mental examinations. See TEX. R. CIV. P. 204.1. No later than thirty

days before the end of the applicable discovery period, a party may move to compel

another party to submit to an examination by a qualified physician. See TEX. R. CIV.

P. 204.1(a)(1). A trial court may compel an examination only for good cause shown

and when the party’s mental or physical condition is in controversy or the party

responding to the motion designated a psychologist as a testifying expert or disclosed

a psychologist’s records for possible use at trial. See id; In re Sherwin-Williams Co.,

668 S.W.3d 368, 370 (Tex. 2023); see also In re Soc’y of Our Lady of Most Holy

Trinity, 622 S.W.3d 1, 11 Tex. App.—Corpus Christi–Edinburgh 2019, orig.

proceeding). The “good cause” requirement balances one party’s right to a fair trial

with the other party’s right to privacy. In re H.E.B. Grocery Co., 492 S.W.3d 300,

9
303 (Tex. 2016). To establish good cause, a “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.’” In re Sherwin-Williams Co., 668 S.W.3d at 371 (quoting In re H.E.B.

Grocery Co., 492 S.W.3d at 303).

Whether to grant a Rule 204 motion for an examination is left to the trial

court’s discretion. See In re Offshore Marine Contractors, Inc., 496 S.W.3d 796,

800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). Rule 204 requires the

trial court to 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). While trial courts retain discretion to place reasonable limits on an

examination, courts should be mindful to “[a]llow[] both parties’ experts to operate

on a level playing field . . . .” See In re Offshore Marine Contractors, 496 S.W.3d

at 803. The limitations and conditions imposed must be reasonable. Id.

A. Recording of Rule 204 Examination

In Soc’y of Our Lady of Most Holy Trinity (“Society”), the court analyzed

whether the trial court’s requirement that an IME be video recorded imposed a

reasonable limitation. 622 S.W.3d at 12. The court surveyed federal cases

addressing this question, noting the absence of Texas law on the issue. Id. at 12–13.

10
Explaining that a majority of federal courts reject “the notion that a third party should

be allowed, even indirectly through a recording device to observe [an] examination,”

the court concluded that absent a showing of particularized need, video recording of

an IME should not be permitted under Rule 204. Id. at 13, 17 (explaining that

recording introduces “a human or mechanical presence—whether a lawyer, a

stenographer, a tape recorder or other instrumentality—[that] changes the nature of

the proceeding”). The court concluded that a party requesting recording of an IME

has “the burden to show a factual basis establishing special circumstances which

constitute good cause for the accommodation.” Id. at 18, 20 (granting mandamus

relief because real parties did not establish good cause for recording of

examination).4 The court noted that requiring the party seeking the recording to

establish special circumstances or a particularized need is consistent with the Texas

Supreme Court’s emphasis on the importance of giving the moving party’s expert

“the ‘same opportunity’ as the opposing party’s expert ‘to fully develop and present

[his or her] opinion, ensuring a fair trial.’” Id. at 17 (quoting In re H.E.B. Grocery

Co., 492 S.W.3d at 304–05).

4
In addressing the recording of an IME, the court in Society discussed the similarities
between Federal Rule of Civil Procedure 35 and Texas Rule of Civil Procedure
204.1. 622 S.W.3d at 12; compare TEX. R. CIV. P. 204.1(a) with FED. R. CIV. P. 35;
see also Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding)
(explaining that former Rule 167a, predecessor to Rule 204.1, was derived from
Federal Rule of Civil Procedure 35 and federal courts’ construction of Rule 35 is
thus helpful to analysis of Texas’ examination rule).
11
We reached a similar conclusion in UV Logistics, holding that a party

requesting that an IME be video recorded must “provide evidence, including specific

facts of special circumstances or a particularized need” to establish good cause for

the recording. 682 S.W.3d at 623 (holding real parties provided evidence

establishing good cause for recording of their examination). Good cause is

determined 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.” In re Soc’y of Our Lady of Most Holy

Trinity, 622 S.W.3d at 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.

A trial court should not permit recording of a mental or physical IME unless

the party seeking to record the IME proves “special circumstances . . . supported by

specific facts[.]” See id. at 17; see also In re UV Logistics, 682 S.W.3d at 623–24

(discussing scenarios in federal cases in which special circumstances have been

established). Merely stating that a party has a traumatic brain injury is not sufficient

12
to establish special circumstances or a particularized need for recording. See id. at

624 (proof that real party had traumatic brain injury was not proof of special

circumstances sufficient to support recording of independent neuropsychological

examination); In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d at 18

(holding courts determine good cause on case-by-case basis showing particularized

need not based on “the nature of the injury alleged”).

The presence of a recording device “interjects an adversarial, partisan

atmosphere into what should be otherwise a wholly objective inquiry” and thus,

“subverts the purpose of the rule allowing examinations, which is to put the [parties]

on an equal footing regarding the evaluation of [one’s] medical or psychological

status.” Id. at 13. Based on this purpose, if a party has been examined by his

physicians without recording, the other party generally should have the same

opportunity. See id.; see also In re Redbird Trails Apartments, No. 05-20-00284-

CV, 2020 WL 3445811, at *4 (Tex. App.—Dallas 2020, orig. proceeding) (mem.

op.) (holding that “in the absence of proof of special circumstances or a

particularized need for videotaping . . . the opposing party’s examination, one party

should not be required to videotape the examination when the other party did not”).

B. Evidence of Good Cause

Relators argue that the trial court abused its discretion in imposing limitations

on Dr. Boake’s neuropsychological examination of Trevino because he did not

13
establish the required “special circumstances or a particularized need supported by

evidence amounting to good cause” to warrant recording of his examination.

Relators assert that as a result, the trial court’s ruling runs afoul of UV Logistics and

Society, as it “places unwarranted and unworkable restrictions” on the examination,

“depriv[ing] Relators of . . . their ability to present their defenses to Trevino’s

damages claims.” Relators note that because Trevino’s doctors, Dr. Jasso and Dr.

Keichian, examined him in person without any recording devices, Dr. Boake should

be afforded the same opportunity. They argue the trial court’s unilateral restriction

on Dr. Boake is “arbitrary and unreasonable under Texas law” because it places

Relators at a “severe disadvantage in the ‘battle of the experts.’”

A party requesting recording has “the burden to show a factual basis

establishing special circumstances which constitute good cause for the

accommodation.” In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d at 14

(citation omitted). As we previously noted, requiring a showing of special

circumstances or a particularized need is consistent with Texas precedent

emphasizing the importance of giving opposing parties’ experts the same

opportunity to fully develop and present their opinion, ensuring a fair trial. See id.

at 17 (citing In re H.E.B. Grocery Co., 492 S.W.3d at 304–05). And good cause is

determined on a case-by-case basis depending on evidence of the particularized

need, and not on the nature of the injury alleged. See id. at 18.

14
Trevino offers two arguments in support of the trial court’s decision. He first

argues that for a variety of reasons, the holding in Society is questionable and we

should decline to follow it. He next argues that even if the good cause standard

applies, he has presented evidence establishing a particularized need for the

recording of his examination.

On his first point, Trevino argues that recording of an examination “poses no

disruption to the psychological testing process when modern equipment is used” and

that Relators have not demonstrated any “specific distraction, test-performance

factor, or other examination impact to video recording.” Trevino further argues that

the recording “does not prevent Relators from developing the testimony they need.”

Trevino speculates that there may be potential errors such as deviation from scoring

and administration that occur during the IME, requiring that it be recorded.

Trevino also challenges Society’s holding that special circumstances must be

established to obtain an IME calling the decision “outlandish” and inviting us to

reject its reasoning. As to equal footing, Trevino responds that unlike Dr. Boake’s

proposed IME, which Trevino requests be audio and video recorded, his prior

(unrecorded) examinations were conducted by non-retained treating physicians like

Dr. Keichian. Trevino contends that Society’s ruling that it is only fair that opposing

parties examine a plaintiff in the same manner is “not sound” and this Court should

reject it because unlike a court-ordered IME by a hired expert, an examination by a

15
plaintiff’s own doctor is “typically voluntary, non-adversarial, and unlikely to

produce differing accounts of what occurred during the examination.” Trevino last

argues that the court in Society erroneously held that “a third-party observer and a

recording device inject the same level of disruption to an [IME].”

We reject Trevino’s arguments. As we held in UV Logistics, “we find Society

to be well-reasoned and we reject [Trevino’s] contention that it is ‘unsound.’” In re

UV Logistics, 682 S.W.3d at 620 (concluding that “the Society case is well-reasoned

and we will follow it[.]”) In line with Society’s holding and in accord with our

decision in UV Logistics, we conclude that the recording of an IME is not permitted

unless the movant establishes special circumstances or a particularized need for the

recording.

Trevino next argues that “Relators fail[ed] to present any legitimate or

credible reason why the exam ‘cannot’ proceed in the manner specified,” that “the

recording requirement imposes no impediment [on] Dr. Boake’s evaluation of [him],

and Relators can point to no evidence of the contrary.” The burden, however, rests

on Trevino to satisfy the good cause standard.

Moreover, Relators produced evidence that recording Dr. Boake’s

neuropsychological examination would impact his evaluation of Trevino. Dr. Boake

stated in his affidavit that “there is a conflict between the proposed recording of [his]

examination and [his] obligation to comply with guidelines of neuropsychology

16
organizations.” He explained that the “recording of test administration violates

ethical standards that require psychologists to strive to obtain test data” that is “valid

and that represent[s] the examinee’s best possible performance.” And he further

explained that recording contravenes a recent guideline stating that “recording of the

administration of neuropsychological tests is not permitted” because “[t]hird party

observation, whether in person, recorded or electronic, remains a potential threat to

the validity and reliability of evaluation results, and violates test security guidelines,

ethical principles and standards of conduct in the field.” As a result, should he be

ordered to record his examination of Trevino, Dr. Boake stated he would have “to

restrict [his] examination” to “mostly checklists and questionnaires” and he would

have to omit “most routine neuropsychological tests.” Given this evidence, which

was unrefuted, we reject Trevino’s argument that “the recording requirement

imposes no impediment [on] Dr. Boake’s evaluation of [him].”

On his second point, Trevino argues that he established good cause and

specialized circumstances or particularized need for the audio and video recording

of his IME. The only explanation Trevino proffers for requiring recording is that he

would not be able “to communicate with counsel regarding the content and

procedure for the examination” because he “suffers from significant cognitive

deficits and memory issues” and his “unique medical condition[] [is] apt to render

him unable to notice or accurately relay to his counsel any impropriety with the

17
[IME.]” Trevino, however, did not put forth a “particularized need” or identify with

specificity the “specialized circumstances” that make his medical condition unique

or would impede his ability to discuss the IME with his attorney. See In re Soc’y of

Our Lady of Most Holy Trinity, 622 S.W.3d at 17.

In arguing in favor of audio and video recording, Trevino relies on (a) Dr.

Keichian’s testimony that he sustained a “traumatic brain injury” in the car accident,

resulting in “memory problems, difficulty concentrating, headaches, and decreased

executive functions”; (b) Dr. Jasso’s diagnosis of “serious thought dysfunction”

consisting of “disordered thinking, delusions, hallucinations and unrealistic

thinking”; and (c) his mother’s testimony that he has “constant memory issues” that

are “consistent and unbearable,” and are “not like those of a normal person, where

occasionally someone will forget something.”

Trevino also relies on UV Logistics in arguing that he suffers from poor

memory and decreased attention due to his diagnosed traumatic brain injury and that

his poor memory and focus issues will prevent him from communicating with his

attorney about Dr. Boake’s examination.5 But merely stating that an individual has

5
In arguing that mandamus relief should be denied, Trevino also cites In re Genesis
Marine, LLC, No. 01-22-00028-CV, 2022 WL 2919935, at *1 (Tex. App.—
Houston [1st Dist.] July 26, 2022, orig. proceeding) (mem. op.) (denying mandamus
relief where trial court permitted audio recording of IME) and In re Johnston, No.
05-25-00099-CV, 2025 WL 1128799, at *1 (Tex. App.—Dallas Apr. 16, 2025, orig.
proceeding) (mem. op.) (holding that relators failed to demonstrate clear abuse of
18
a traumatic brain injury is not sufficient to establish special circumstances or a

particularized need for recording. See In re UV Logistics, 682 S.W.3d at 624

(holding that proof that real party had traumatic brain injury was not proof of special

circumstances sufficient to support recording of independent neuropsychological

examination); see also In re Soc’y of Our Lady of Most Holy Trinity, 622 S.W.3d at

18 (courts determine good cause for allowing videotaping of examinations on a case-

by-case basis showing particularized need not based on “the nature of the injury

alleged”).

In UV Logistics, real parties presented a physician’s report setting out test

results establishing significant shortcomings that could affect their ability to discuss

their examination with counsel, including “‘significant neuropsychological

impairments’ with deficits . . . mak[ing] it difficult for [one real party] to recall

specifics of information heard when the information is unrelated.” 682 S.W.3d at

626. Other real parties’ medical reports showed forgetfulness, deficits in complex

attention and auditory information processing speed, cognitive function, language,

verbal fluency, visual recognition memory, and short-term memory problems, that

could affect the recall of specific information if unrelated. Id. at 626–27.

discretion in challenging ordered recording of IME). Because these cases do not
explain why relief was denied, they lend no support to Trevino’s argument.

19
Trevino did not present similar evidence of “special circumstances” sufficient

to support the requirement of video or audio recording. Trevino relied on deposition

testimony of Dr. Keichian and his mother, however neither presented any facts

establishing Trevino’s inability to communicate with his attorney following his IME.

Although Dr. Keichian testified as to a variety of diagnoses, there was no connection

established between these diagnoses and Trevino’s inability to communicate with

his attorney after the IME. Aside from noting Trevino’s self-reported general

decrease in memory, Dr. Keichian did not offer any evidence or testing results that

reflected an impairment that could prevent Trevino from remembering what

occurred during his IME and communicating such to his attorney afterwards. In fact,

Dr. Keichian recognized the significance of Trevino’s ability to recall the events of

the accident almost three years after its occurrence.

Dr. Keichian met with Trevino several times between July 2022 and May

2024. When he first saw Trevino in July 2022, Trevino complained of headaches

and “decreased memory and attention span,” which resulted in a diagnosis of “severe

traumatic brain injury.” Dr. Keichian testified that in September 2022, Trevino

complained of similar symptoms including “decreased attention span, decreased

immediate memory, disorientation in time intermittently, [and] at times difficulty

finding words.” Dr. Keichian further testified that in July 2023, he found Trevino

to be “fully oriented with [a] decrease in memory, attention span, and high executive

20
functions.” In August 2023, Dr. Keichian noted that Trevino was being evaluated

after a “severe traumatic brain injury” but also noted that Trevino had “no significant

cognitive deficits . . . .”

Dr. Keichian then testified that in October 2023, Trevino was

“enthusiastic . . . about dogs that he’s raising[,] caring for and selling to . . . good

customers,” and that “this source of companionship and positive feelings” “will help

[Trevino] with symptoms and with his improvements.” He noted that Trevino

“showed appropriate behavior and enthusiasm for his business, and no cognitive

impairments.” Dr. Keichian last saw Trevino in May 2024, on which date Trevino’s

main complaints included dizziness, vertigo, and vomiting. Trevino also

complained of headaches, triggered by reading, but was responsive to Tylenol.

Based on these self-reported symptoms, Dr. Keichian assessed Trevino with

“T[raumatic] B[rain] I[njury], post-traumatic headaches, vestibular dysfunction, and

depression.”6 Notable here is Dr. Keichian acknowledgment of Trevino still

“ha[ving] a detailed recall of everything that happened in the moments after the

accident” despite the passage of time. Equally as notable is Dr. Keichian’s finding

of “[n]o cognitive impairment” during his last evaluation of Trevino in May 2024.

6
Dr. Keichian testified that vestibular dysfunction (dizziness and vertigo) usually
occurs right after injury, and it was not clear to him why in Trevino’s case it took
so long after his accident to surface.
21
Relators also submitted a medical report from Trevino’s neuropsychologist,

Dr. Jasso, who examined Trevino in November 2022. He conducted three tests,

totaling twenty-four hours in duration, without video or audio recording. Although

Dr. Jasso’s report of his evaluation of Trevino reflected impairment of memory,

these results do not reveal serious memory deficits that could prevent Trevino from

communicating with counsel about his IME. Despite noting Trevino’s troubled

feelings and complains of difficulty in “[r]emembering important things that must

be done,” Dr. Jasso found Trevino’s “overall mental status [to be] normal.” Indeed,

Dr. Jasso’s report indicated that Trevino arrived on time to his examination,

appeared well-groomed, was cooperative, oriented, and made eye contact during his

evaluation. He stated that Trevino was “oriented to the day, month, and year” and

to “person and place.” He further stated that Trevino was “not tangential or

circumstantial, as he provided detailed information regarding his condition as well

as relevant autobiographical information.” He “answered questions appropriately

and provided evidence of good conation” and he “displayed no evidence of a serious

mental illness, such as los[s] [of] contact with reality, thought disorder,

hallucinations or delusions.” Although Dr. Jasso indicated that Trevino had a “level

of significant functional impairment[,]” which “measures the functional memory

activities, understanding instructions, and keeping appointments[,]” Dr. Jasso noted

that it was “self-perceived.” Further, Dr. Jasso’s mention of Trevino’s responses

22
representing those individuals with “memory complaints, difficulties with

concentration, intellectual limitations and confusion,” was only to provided context

for clinical use.

Indeed, Dr. Jasso’s conclusion of Trevino’s personality was that his

“performance . . . appear[ed] to be too ambiguous for valid interpretation.” In

evaluating Trevino’s intelligence, Dr. Jasso found that he tested “[a]bove [a]verage]”

in his “range of fluid reasoning and working memory/attention abilities.” Notably,

Dr. Jasso did not mention memory or language deficits that could be interpreted as

an inability of Trevino to communicate with his attorney about his examination of

him or a future IME.

While Trevino’s mother testified during her deposition that Trevino’s “focus

is . . . not good” and that he forgets things like taking out the trash after leaving the

house or places where he would leave his personal belongings, such anecdotal

testimony is not the type of evidence courts have required to establish a specialized

need.

Thus, although there is some evidence of Trevino’s diagnosis and reported

symptoms, there was no connection established between these diagnoses and an

inability to communicate with his attorney after an IME. There is no expert report

or physician diagnosis of a specific cognitive impairment or deficit that would impair

his ability to discuss his IME with his counsel.

23
We therefore conclude the trial court abused its discretion in ordering that the

IME of Trevino be audio and video recorded.

Adequate Remedy by Appeal

The adequacy of the appellate remedy is determined by balancing the benefits

and detriments of mandamus review. See Prudential, 148 S.W.3d at 135–36.

“Mandamus review of incidental, interlocutory rulings by the trial courts unduly

interferes with trial court proceedings, distracts appellate court attention to issues

that are unimportant both to the ultimate disposition of the case at hand and to the

uniform development of the law, and adds unproductively to the expense and delay

of civil litigation.” Id. at 136. But where significant rulings in exceptional cases are

involved, mandamus review “may be essential to preserve important substantive and

procedural rights from impairment or loss, allow the appellate courts to give needed

and helpful direction to the law that would otherwise prove elusive in appeals from

final judgments, and spare private parties and the public the time and money utterly

wasted enduring eventual reversal of improperly conducted proceedings.” Id.

“In the discovery context, an appellate remedy is not adequate if: ‘(1) the

appellate court would not be able to cure the trial court’s error on appeal; (2) the

party’s ability to present a viable claim or defense is vitiated or severely

compromised; or (3) missing discovery cannot be made a part of the appellate

record.’” In re Offshore Marine Contractors, 496 S.W.3d at 804 (quoting In re Ford

24
Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding)). A remedy by

appeal is inadequate when a relator does not have the opportunity for its expert to

“develop and present his opinion, ensuring a fair trial.” In re H.E.B. Grocery Co.,

492 S.W.3d at 300.

Relators’ concern that the viability of their defense will be detrimentally

affected by the audio and video recording of the IME, because such recording will

interfere with Dr. Boake’s testing and ability to conduct a meaningful and complete

neuropsychological evaluation, weighs in favor of mandamus review and the

conclusion that a remedy by appeal is inadequate.

Conclusion

We conditionally grant Relators’ Petition for Writ of Mandamus and direct

the trial court to vacate the portion of its March 6, 2025 order requiring that

Trevino’s IME be videotaped and audio recorded. The writ will issue only if the

trial court fails to do so.

We lift the stay issued on April 25, 2025, and dismiss any pending motions as

moot.

Veronica Rivas-Molloy
Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

25