Beaumont Court of Appeals grants Dorsett Johnson & Cisneros’ Petition for Writ of Mandamus

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00007-CV
__________________
IN RE BILL CLARK PEST CONTROL, INC. AND
LUKE TAYLOR LEACH
__________________________________________________________________
Original Proceeding
172nd District Court of Jefferson County, Texas
Trial Cause No. E-208241
__________________________________________________________________
MEMORANDUM OPINION
In a suit for personal injuries arising out of a motor vehicle accident, the trial
court denied the Defendants’ motion to compel a physical and mental examination
of the Plaintiff. Relators Bill Clark Pest Control, Inc. (“Bill Clark”) and Luke Taylor
Leach (“Leach”) (collectively “Relators” or “Defendants”) petitioned for a writ of
mandamus to compel the trial court to withdraw its order and grant the motion. We
obtained a response from the real party in interest, April Land (“Plaintiff” or
“Land”). We conditionally grant mandamus relief.

Land allegedly sustained physical injuries in the collision that is the subject
of her lawsuit. Land alleged Leach was acting in the course and scope of his
employment with Bill Clark when he failed to control the speed of his vehicle and
struck Land’s vehicle from the rear, and that Leach’s negligent driving was the
proximate cause of her injuries. Land’s alleged damages include past and future
medical expenses, past and future mental anguish and physical pain, past and future
physical impairment, lost wages, and future lost earning capacity.

The cause, nature and extent of Land’s injuries is in controversy. Through her
deposition testimony and reports by experts produced in discovery, Land attributed
many symptoms and maladies from which she currently suffers to the injuries she
sustained in the collision. These include worsening pre-existing memory loss, lower
back and hip pain for which she has had surgery, neck pain and headaches, numbness
and tingling in her arms and hands, nightmares, paranoia, and suicidal ideations.
Land has a previous history of an automobile accident, pre-existing degenerative
disc disease, peripheral neuropathy, lower back pain for which she received medical
treatment, muscle pain for which she received chiropractic treatment, neck surgery,
severe headaches, arthritis, use of prescription pain medication, and long-term
psychiatric treatment through which she qualified for and receives Medicare and
Social Security disability benefits.

Land’s disclosed medical experts include Dr. Remi Nader, a physician with
International Center for Neuroscience PLLC, and Dr. Edward Gripon, a forensic
psychiatrist. Land disclosed that they would testify about Land’s care and treatment,
the extent and duration of the injury, pain, future medical expense, disability, amount
of reasonable and necessary past medical expenses, causation of injury, and all other
matters discussed in Land’s medical records and their depositions.

A report from Dr. Nader, which is dated about four months after the collision
and based upon a physical examination of the patient, noted that Land’s chief
complaints were headache, neck pain, and lower back pain which began after the
accident. Land described her headache as throbbing in the temporal area with an
intensity of 8 out of 10 occurring once or twice per week, with associated symptoms
of nausea, insomnia, memory and concentration difficulties, mental fogginess,
irritability, anxiety, depression, and mood changes. Land described her neck pain as
radiating down her right arm with pain on a scale of 4 or 5 out of 10, aching, not
constant, aggravated by looking up or down or when lifting, and including numbness
and tingling in her right hand and dropping objects. Land described her lower back
pain as stabbing, sharp and constant pain radiating to the knees and right hip with an
intensity of 7 out of a scale of 10 and including numbness and tingling on the right
side of the hip. An updated report identified Dr. Nader’s recommendations for
Land’s future medical care related to her diagnoses from being involved in the
collision. Based upon Dr. Nader’s diagnoses, a certified nurse life care planner
created a life care plan that estimated that Land would incur future medical expenses
in a range between $1.3 million dollars and $2.4 million dollars. The life care plan
was based upon diagnoses of post-concussion syndrome, post-traumatic headache,
unspecified and not intractable, cervical disc displacement with radiculopathy,
cervicalgia, lumbar intervertebral disc displacement with radiculopathy with low
back pain and sacroilitis, with symptoms to include, but not limited to, headaches
one to two times weekly in the temporal/frontal lobe described as throbbing,
associated with nausea, radiates to the neck “new needle” pain aggravated by work,
and insomnia; exacerbated mental symptoms include memory difficulties,
concentration difficulties, mental fogginess, as well as psychiatric symptoms of
irritability, anxiety, depression, and mood changes; neck pain radiating to the right
arm; and low back pain radiating to her knees and right hip; sacroiliac joint pain and
antalgic gait from being involved in a motor vehicle accident on August 13, 2021.
In discovery, Land produced a report of a psychiatric evaluation by Dr.
Gripon. Dr. Gripon based his report on a psychiatric evaluation including an
interview and formulation of a formal mental status examination. Dr. Gripon
reported that in addition to Land’s previously diagnosed psychiatric disorders, given
her current history, Land would also have a diagnosis of post-traumatic stress
disorder. Land described her primary symptoms as depression, anxiety and fear or
apprehension when she had to leave home and travel in a vehicle. Dr. Gripon
observed that Land was extremely apprehensive about his examination of her and
that from a diagnostic standpoint she would probably benefit from
neuropsychological testing.

In discovery, Relators designated as testifying experts Mark Barisa, a clinical
neuropsychologist, and Dr. Christopher Ticknor, a psychiatrist. Barisa produced an
expert report based upon his review of Land’s medical records, which he noted
lacked any neuropsychological evaluation reports or test results but contained
evaluations based on interviews and subjective reporting. Barisa concluded there
was no objective support for any ongoing residual physical, cognitive, emotional, or
functional limitations related to a concussion or brain injury allegedly sustained in
August 2021. Barisa noted Land presented a pattern of emergence and delayed
reporting of symptoms that would not be consistent with the known trajectory of
recovery following a mild traumatic brain injury and would instead be more
consistent with the effects of chronic pain issues, chronic psychiatric illness,
potential medication effects, misattribution of symptoms, psychological responses
to subjective complaints, and possible exaggeration of symptoms.
Relators disclosed that Dr. Ticknor will testify about Land’s mental and
physical condition before and after the accident, including her “preexisting and
subsequent mental and physical conditions, including any alleged post-traumatic
stress disorder and traumatic brain injury, causes of those conditions, malingering,
secondary gain, drug seeking behavior, the Plaintiff’s unreliability as a medical
historian and the unreasonableness of any provider’s relying upon facts supplied by
Plaintiff in making medical conclusions for the purposes of diagnosing or treating
Plaintiff or making a prognosis for her future.” Relators disclosed that Dr. Ticknor
is also expected to testify concerning what medical and mental health treatments,
services, products, pharmaceuticals, and equipment were necessary or unnecessary
for Land’s mental and physical health.

Relators filed a motion to compel a physical and mental examination of Land.
A supporting affidavit provided by Dr. Ticknor explained why a physical and mental
examination was necessary:

I have been asked to review the medical and forensic records of
Ms. April Land in this case. Plaintiff’s providers and experts have had
the opportunity to examine Ms. Land in person in order to supplement
their reports. I have not had that opportunity and an examination would
provide me with information that is not available to me solely from a
review of the medical records, depositions, and discovery responses I
have been provided. Moreover, it does not appear from the documents
I have been provided that the plaintiff has been properly examined by
a psychiatrist or neuropsychologist for the purposes of evaluating her
for potential traumatic brain injuries, post-concussion syndrome, mood
disorders, PTSD, Somatization or Factitious disorders and any causal
relationship between those conditions and the accident upon which she
sues. I respectfully request the same opportunity to evaluate Ms. Land
in person and perform a medical and psychiatric examination in order
to supplement my opinions on this matter. If I am denied the
opportunity to conduct the examination described herein, I will be
placed at a distinct disadvantage because it will allow the plaintiff’s
lawyer to call into question my credibility and the reliability of my
opinions and conclusions.

To properly conduct my evaluation and formulate my opinions
and conclusions, I request and recommend that an experienced,
licensed Clinical Neuropsychologist, Dr. Mark Barisa, participate in
administering validated neuropsychological tests that assess
neuropsychological factors, personality traits, and possible
psychopathology. The intent of these tests is to provide information to
me to assist in making an assessment of Ms. Land’s neuropsychological
and cognitive functioning, emotional/interpersonal state, and provide
additional veracity to my findings.

The requested examination would begin with a diagnostic
interview and mental status examination conducted jointly with Dr.
Barisa. If necessary, I may request that Ms. Land perform various paper
and pencil tests as well. The initial portion of the requested examination
will last no more than 2 to 2 ½ hours. The examination will not be
invasive nor will it include any diagnostic laboratory tests or a physical
examination. Ms. Land will not be required to disrobe during the
requested examination, nor will blood be drawn or x-rays taken.
In addition to the requested time mentioned above,
neuropsychological testing administered by Dr. Barisa will assist me in
conducting an appropriate and medically sound examination of April
Land. The administering of these tests by Dr. Barisa as part of an overall
medical and psychiatric examination of Ms. Land would require an
additional 5 or 6 hours to conduct. The entire evaluation will likely
comprise about 7 or 8 hours and can be completed in one day. Only the
interview portion of the examination may be audio recorded but cannot
be video recorded. Time breaks will be provided to accommodate any
of Ms. Land’s needs. She may bring lunch with her or lunch can be
provided.

I respectfully request the opportunity to conduct my own
evaluation of Ms. Land with Dr. Barisa and perform the testing outlined
in this affidavit.

In response, Land argued there was no need for an independent medical
examination because she had already undergone the type of examination requested
by the Defendants. She argued Dr. Ticknor would merely provide another interview
when her retained expert, Dr. Gripon, had already interviewed the Plaintiff.
According to Land, the Defendants possessed sufficient support for their argument
that her injuries pre-existed the collision without an additional interview. Land
argued the examination would burden her because she is fearful of mental health
professionals.

In reply, Relators argued they were not requesting a repeat of Dr. Gripon’s
interview, but they sought to administer specifically enumerated tests that Dr.
Gripon did not administer.

The trial court held a hearing on the motion for a physical and mental
examination. Land’s attorney said Land would waive her traumatic brain injury
claim and her claim of post-concussion syndrome. Yet Land’s attorney did not waive
Land’s claim that Land is still suffering from physical complaints and has mental
anguish that she will continue to have in the future if not indefinitely, nor did he
waive Land’s right to call the expert witnesses, including the life care planner, that
were designated to testify in Land’s case. Defense counsel responded that they
needed to examine the source and onset and etiology of all her numerous complaints
and emotional, mental, and physical symptoms. Defense counsel explained that the
tests they were seeking to perform are designed to test neuropsychological factors
and personality traits to determine whether Land’s conditions and symptoms were
actually caused by the accident or are caused by her delusional thinking. Defense
counsel argued that Land’s experts had relied on what she says her condition is but
due to her mental condition Land could not provide an accurate medical history.
Noting the defense could present their defense using Land’s significant history, the
trial court denied the motion for an independent medical examination.
“Mandamus is an extraordinary remedy granted only when the relator shows
that the trial court abused its discretion and that no adequate appellate remedy
exists.” In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding). A trial court abuses its discretion when its ruling amounts to a clear and
prejudicial error of law, or if the trial court fails to correctly analyze or apply the law
to the facts. Id. at 302-03. “The relator must establish that the trial court could have
reasonably reached only one conclusion.” Id. at 303.
Texas Rule of Civil Procedure 204.1 governs requests for the physical or
mental examination of another party. See Tex. R. Civ. P. 204.1. The trial court may
order a party to submit to a physical or mental examination by a qualified physician
or to a mental examination by a qualified psychologist “only for good cause” when
the physical or mental condition of a party is in controversy or the party responding
to the motion has designated a psychologist as a testifying expert. See Tex. R. Civ.

P. 204.1(c). The good-cause requirement of Rule 204.1 balances the movant’s right
to a fair trial and the opposing party’s right to privacy. H.E.B. Grocery, 492 S.W.3d
at 303. To satisfy the good cause requirement, the movant must (1) show that the
requested examination is relevant to issues in controversy and will produce or likely
lead to relevant evidence, (2) establish a reasonable nexus between the requested
examination and the condition in controversy, and (3) demonstrate that the desired
information cannot be obtained by less intrusive means. Id.

“When the existence, extent, and cause of an injury are in controversy, an
exam intended to glean information regarding those issues will satisfy the relevance
requirement.” In re Auburn Creek Ltd. P’ship, 655 S.W.3d 837, 841-42 (Tex. 2022)
(orig. proceeding). Here, Land attributed many symptoms and maladies to the
injuries she says she sustained in the collision. Dr. Ticknor explained that the
validated neuropsychological tests that Dr. Barisa would participate in administering
are designed to assess neuropsychological factors, personality traits, and possible
psychopathy and would assist Dr. Ticknor in assessing Land’s neuropsychological
and cognitive functioning, assist in evaluating her for potential Somatization and
Factitious disorders, and to determine any causal relationship between Land’s
conditions and symptoms and the accident. We conclude Relators established the
relevance of the requested diagnostic interview and mental status examination to be
conducted jointly by Drs. Ticknor and Barisa.

To establish a reasonable nexus between the requested examination and the
condition in controversy, there must be evidence that the requested examination be
related directly to the examination in question. Id. at 842. Again, Dr. Ticknor’s
affidavit explains that the psychiatric evaluation and neuropsychological testing are
designed to determine the cause of Land’s symptoms and conditions and whether
they are caused by pre-existing conditions and not by the collision. We conclude
Relators established a reasonable nexus between the requested examination and
Land’s alleged injuries.  Regarding whether the information sought by Relators could be obtained by
less intrusive means, Land argues the requested examinations would merely subject
Land to examinations she has already been through. Repeating an examination
would be equally intrusive, not more intrusive. That said, Dr. Ticknor explained that
they lacked previous neuropsychological testing to evaluate, and Dr. Gripon
observed that from a diagnostic standpoint Land would probably benefit from
neuropsychological testing. Further, requiring Dr. Ticknor to rely on Dr. Gripon’s
interview with Land forces the Defendants’ expert to evaluate Land’s condition
through the lens of her expert, not independently. Drs. Ticknor and Barisa explained
that given Land’s pre-existing mental disorders, relying on an interview based on
Land’s patient history is problematic without evaluating the reliability of her ability
to accurately report her medical history. We conclude Relators established that the
desired information could not be obtained through less intrusive means.
Relators established good cause for the trial court to grant their motion for an
examination under Rule 204.1. See Tex. R. Civ. P. 204.1. By denying the motion,
the trial court abused its discretion. “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. Grocery, 492 S.W.3d at 304 (internal quotation marks
omitted). “The adequacy of an appellate remedy is determined by balancing the
benefits and detriments of mandamus.” Id.

“[A] denial of discovery going to the heart of a party’s case may render the
appellate remedy inadequate.” Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992)
(orig. proceeding). If the trial court’s order denying the examination stands,
Relators’ experts will be at a distinct disadvantage at trial because they have not had
the opportunity that Land’s experts have had to examine the Plaintiff. The trial
court’s ruling restricts the defense experts to the evidence developed by the
Plaintiff’s experts and deprives the defense experts of the opportunity to discover
facts that may contradict the opinions of the Plaintiff’s experts. See In re Charney,
No. 09-21-00028-CV, 2021 WL 2371251, at *3 (Tex. App.—Beaumont June 10,
2021, orig. proceeding) (mem. op). By denying the Rule 204.1 motion, the trial court
precluded Relators from obtaining the information that would be required to evaluate
harm on appellate review. Id.

We conclude that an examination by the defense experts is required to obtain
a fair trial and therefore necessitates the intrusion upon Land’s privacy. A fair
resolution of the cause, nature, and extent of Land’s injuries depends upon
competing expert testimony that the trial court has prevented Bill Clark and Leach
from developing. See Auburn Creek, 655 S.W.3d at 843. Because the trial court’s
erroneous ruling severely compromises the ability to present a viable defense, Bill
Clark and Leach lack an adequate remedy by appeal. Id.

We hold that the trial court abused its discretion in denying the motion for a
physical and mental examination and that Bill Clark and Leach lack an adequate
appellate remedy. Accordingly, we conditionally grant the petition for writ of
mandamus. We are confident that the trial court will vacate its order denying the
motion to compel a physical and mental examination of Plaintiff and issue an order
under Rule 204.1(d) that requires April Land to submit to a physical and mental
examination by the Defendants’ experts. The writ will issue only if the trial court
does not comply.

PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on January 18, 2024
Opinion Delivered May 9, 2024
Before Golemon, C.J., Horton and Wright, JJ.

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