Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00446-CV

IN RE PHOENIX SERVICES, LLC; Pruitt’s Fract Tanks, LLC; and Jose Jaime Jacquez

Original Mandamus Proceeding1

Opinion by: Irene Rios, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Irene Rios, Justice

Delivered and Filed: October 31, 2018

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In this original proceeding, relators assert the trial court abused its discretion by denying 

their motion to compel a neuropsychological examination pursuant to Texas Rule of Civil 

Procedure 204. We conditionally grant the petition for writ of mandamus.

BACKGROUND

The underlying lawsuit involves an automobile accident in which two plaintiffs and one 

intervenor allegedly suffered injuries. One of the plaintiffs, real party in interest Fernando

Martinez, Jr., claimed, among other injuries, traumatic brain injury. In addition to other treating 

physicians, Martinez retained a neuropsychologist, Dr. Larry Pollock, Ph.D. On October 26 and 

27, 2017, Dr. Pollock interviewed and evaluated Martinez, and issued two reports: (1) a General 

 1 This proceeding arises out of Cause No. 17-01-33870-MCV, styled Fernando Martinez, Jr. and Jose Javier Cisneros 

v. Phoenix Services, LLC, et al., pending in the 293rd Judicial District Court, Maverick County, Texas. The Honorable 

Gloria Saldana, retired, signed the order at issue here.
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Diagnostic Battery and Neuropsychological Evaluation and (2) a Brain Injury Functional 

Evaluation. Martinez designated Dr. Pollock as a testifying expert.

Relators retained and designated their own expert, Dr. Corwin Boake, Ph.D., who is also a 

neuropsychologist. On April 13, 2018, relators filed a motion to compel a neuropsychological 

examination of Martinez.2 Dr. Boake’s affidavit described the examination and tests he intended 

to conduct. Martinez opposed the examination, arguing relators did not show there were less 

intrusive means by which relators could obtain the information Dr. Boake needs to offer his 

opinion. Martinez asserted he provided relators with Dr. Pollock’s reports, a report from his 

medical examination, and an authorization that would allow relators to obtain Dr. Pollock’s raw 

testing data.

Following a brief hearing, the trial court denied relators’ motion, without stating its 

reasons. After the trial court denied the motion, relators filed Dr. Boake’s expert reports, pursuant 

to a docket control order. Relators then filed a motion asking the trial court to reconsider its denial 

of their motion to compel. The trial court denied the motion, stating as follows:

The court has reviewed the [relators’] Motion to Reconsider, the case law provided, 

and Dr. Boake’s reports. The court finds the arguments unpersuasive as to all three 

plaintiffs, because:

1. [Relators] fail to show good cause under Rule 204; The H.E.B.

case is not on point as it is “heavily circumstantial”; and [relators] 

seek the “most effective” way to test the validity of medical opinions.

2. Most of the previous standard tests would be repeated 

unnecessarily with likely unreliable results due to the plaintiffs’ prior 

exposure to the same type of tests and the stress of the adversarial 

intrusiveness of [relators’] expert as well as the excessive duration of 

the duplicative testing; . . .. 

 2 Relators moved to compel a neuropsychological examination of the two plaintiffs and one intervenor. However, 

only the motion to compel an examination of Martinez is at issue in this mandamus proceeding. 
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After the trial court denied their motion to reconsider, relators filed their petition for writ 

of mandamus. Martinez filed a response, to which relators replied.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 

(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion 

when there is no other adequate remedy at law. See 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). To satisfy the clear abuse of discretion standard, the relator must show 

“that the trial court could reasonably have reached only one decision.” Liberty Nat’l Fire Ins. Co. 

v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840). 

The relator has the burden of establishing both prerequisites to mandamus relief, and this burden 

is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).

Appellate courts will not intervene to control incidental trial court rulings when an adequate 

remedy at law exists. Walker, 827 S.W.2d at 842. A party will not have an adequate remedy at 

law from a discovery order: (1) when the appellate court would not be able to cure the trial court’s 

error; (2) where the party’s ability to present a viable claim or defense at trial is vitiated or severely 

compromised by the trial court’s error; or (3) where the trial court disallows discovery and the 

missing discovery cannot be made a part of the appellate record or the trial court, after proper 

request, refuses to make it part of the record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 

1998) (orig. proceeding); Walker, 827 S.W.2d at 843-44. If a defendant needs to conduct a 

physical or mental examination before trial to adequately defend against a plaintiff’s allegations 

of injury, an appeal after trial of the trial court’s order denying the examination would not provide 

an adequate remedy. See In re Transwestern Publ’g Co., L.L.C., 96 S.W.3d 501, 508 (Tex. App.—
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Fort Worth 2002, orig. proceeding) (holding trial court abused its discretion in denying relators’ 

motion to compel mental examination, and an adequate remedy by appeal did not exist).

MENTAL EXAMINATION OF ANOTHER PARTY

Texas Rule of Civil Procedure 204.1 governs whether a movant may compel a physical or 

mental examination of another party. TEX. R. CIV. P. 204.1;3 In re H.E.B. Grocery Co., L.P., 492 

S.W.3d 300, 303 (Tex. 2016) (orig. proceeding) (per curiam). The trial court may grant a Rule 

204.1 motion if the movant shows that (1) “good cause” exists and (2) the physical condition is 

“in controversy.” TEX. R. CIV. P. 204.1(c)(a)(1). In Coates v. Whittington, the Texas Supreme 

Court held that “[t]he requirement of good cause for a compulsory mental examination may be 

satisfied only when the movant satisfies three elements”: (1) the examination is relevant to issues 

in the case and the examination will produce, or is likely to lead to, relevant evidence; (2) there is 

a reasonable nexus between the condition of the person to be examined and the examination 

sought; and (3) it is impossible to obtain the desired information through means that are less 

intrusive than a compelled examination. 758 S.W.2d 749, 753 (Tex. 1988) (orig. proceeding). 

“The movant must demonstrate that the information sought is required to obtain a fair trial and 

therefore necessitates intrusion upon the privacy of the person he seeks to have examined.” Id. A 

plaintiff’s “privacy interests require, at minimum, that [the defendant] exhaust less intrusive means 

of discovery before seeking a compulsory mental examination.” Id. “If, however, a plaintiff 

intends to use expert medical testimony to prove his or her alleged mental condition, that condition 

is placed in controversy and the defendant would have good cause for an examination under Rule 

167a [the predecessor to Rule 204.1].” Id.

 3 “A party may—no later than 30 days before the end of any applicable discovery period—move for an order 

compelling another party to . . . submit to a physical or mental examination by a qualified physician or a mental 

examination by a qualified psychologist . . ..” TEX. R. CIV. P. 204.1(a)(1).
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“Texas courts have identified a number of avenues that could, in appropriate cases, 

potentially provide less intrusive means for obtaining medical information without an 

examination.” In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 869-70 (Tex. App.—Dallas 

2014, orig. proceeding). “For instance, less intrusive measures might include deposing the 

opposing party’s doctors and attempting to obtain copies of medical records[,] or relying on 

existing expert witness reports already filed in the case[.]” Id. at 870 (citations omitted). However, 

“[i]n many cases the treating physician’s notes, the medical records of the complaining party, and 

expert witness reports filed by other parties cannot serve these legitimate purposes.” Id. “In 

addition, where the information already available through less intrusive means is inadequate, a 

party may obtain a physical examination for which good cause is otherwise shown.” Id.

In this case, the only disputed issue is whether it is impossible to obtain the desired 

information through means that are less intrusive than a compelled examination. Martinez asserts 

relators failed to carry their burden. Martinez contends there is no evidence in the record that 

relators’ “proposed eight-and-a-half-hour examination [of Martinez] was the least intrusive means 

of evaluating Martinez’s mental health.” At the hearing, Martinez’s attorney contended Martinez 

had already undergone extensive testing, and repeated testing by relators would skew the results 

because Martinez would already be familiar with the tests. Martinez contended Dr. Pollock’s 

reports, a report from his medical examination, and Dr. Pollock’s raw testing data all provide Dr. 

Boake with the information he needs to offer his expert opinion. We evaluate the adequacy of 

these measures in light of the fair trial standard. See Ten Hagen Excavating, 435 S.W.3d at 870.

In his preliminary report, Dr. Boake identified deficiencies in Dr. Pollock’s reports after 

he reviewed the raw data. Dr. Boake stated he was not aware “of any published or publicly 

available information about [the] assessment procedures” Dr. Pollock used in his Brain Injury 

Functional Evaluation. Dr. Boake also stated:
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Dr. Pollock’s report gives the diagnosis of major neurocognitive disorder 

due to traumatic brain injury. In evaluating this diagnosis the following issues need 

to be considered. First, for some of the neuropsychological test results that were 

interpreted as abnormal, no norms were used in interpretation. Review of the raw 

test data shows that for the Booklet Category Test, no percentile or standardized 

score was calculated. It appears the score was classified as abnormal based on a 

non-standard procedure. Second, for most of the tests that were interpreted as 

having abnormal results, interpretation of the test results did not use norms for 

Hispanic persons. For example, for the grip strength and Grooved Pegboard tests, 

the interpretation used norms from Canada. Other tests with this problem include 

the Rey complex figure, Sentence Repetition, and verbal selective reminding test. 

Third, some of the tests used are no longer commercially available to 

neuropsychologists (for example, Continuous Recognition Memory). Fourth, the 

Brain Injury Functional Evaluation used cognitive assessment procedures (for 

example, Bill’s Bills) that are not standardized or available to outside clinicians. I 

am unaware of any documentation or evidence basis for these assessments. Fifth, 

some of the tests (for example, PASAT) were interpreted with norms that have not 

been published. Finally, the diagnosis of major neurocognitive disorder does not 

apply to persons who have returned to work and who are independent in daily 

activities such as driving. Repeat neuropsychological examination is needed to 

address these methodological problems in the 10/26/17 and 10/27/17 examinations.

The diagnosis of posttraumatic stress disorder was given by Dr. Cain and 

Dr. Pollock. The diagnosis of major depressive disorder was given by Dr. 

Ntakirutimana and Dr. Pollock. In evaluating these diagnoses it is important to 

consider the following issues. First, there is no prior history of mental health 

problems. Second, it is accepted that the risk of anxiety and mood disorders is 

increased after physical trauma. Third, the records show he has reported emotional 

symptoms to multiple clinicians. In addition, he has reported symptoms of anxiety 

and posttraumatic stress disorder on checklists and questionnaires. It is unclear if 

he has received mental health treatment. Repeat neuropsychological examination is 

needed to clarify his current mental health problems and support needs. 

Relators contend Dr. Boake cannot obtain information addressing the above shortcomings 

merely by deposing Dr. Pollock or relying on Dr. Pollock’s reports or data. 

Although the trial court here found H.E.B. Grocery was “not on point,” we believe the 

opinion provides useful guidance in determining when a physical or mental examination is 

necessary to obtain a fair trial. In that case, H.E.B. requested that the plaintiff be required to submit 

to a physical examination by its orthopedic expert, but the trial court denied the request. The 

Supreme Court analyzed the three requirements that must be shown to establish good cause: (1)
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the requested examination is relevant to issues in controversy and will produce or likely lead to 

relevant evidence, (2) a reasonable nexus exists between the requested examination and the 

condition in controversy, and (3) the desired information cannot be obtained by less intrusive 

means. 492 S.W.3d at 303 (citing to Coates, 758 S.W.2d at753). The Court granted mandamus 

relief, finding that H.E.B. had satisfied these three requirements. Id. at 303-04.

Similar to H.E.B. Grocery, here, relators have met the good cause requirements. First, as 

to relevance, one of the issues in controversy is the existence and extent of Martinez’s traumatic 

brain injury. In Dr. Boake’s affidavit, he stated the examination he wanted to conduct was relevant 

to the neuropsychological conditions as reported by Martinez’s neuropsychologists, and all the 

tests he wanted to use in his examination were “standard neuropsychological and psychological 

tests that are in common use by neuropsychologists.” In his preliminary report, Dr. Boake stated

the medical records he examined did not “clearly support a diagnosis [of] a concussion or traumatic 

brain injury caused by the 1/12/17 accident,” but his conclusions were “limited in the absence of 

a personal examination.” Second, there appears to be no dispute that there exists a reasonable 

nexus between the examination requested by Dr. Boake and Martinez’s alleged traumatic brain 

injury. Third, relators have shown the desired information cannot be obtained by less intrusive 

means. In Dr. Boake’s preliminary report, Dr. Boake requested the opportunity to examine 

Martinez and he stated, “Repeat neuropsychological examination is needed to clarify [Martinez’s] 

current mental health problems and support needs.” In his affidavit, Dr. Boake stated that although 

“a review of medical/neuropsychological records provides some insight into a person’s condition, 

a psychologist or psychiatrist who personally examines a person is generally in a better position 

than one who is limited to reviewing medical records.”

In analyzing the third requirement, the H.E.B. Grocery Court found it significant that the 

plaintiff intended to prove causation and damages through expert testimony, HEB merely sought
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to allow its competing expert the same opportunity, and the results of its expert’s requested 

examination went to the heart of HEB’s defense strategy. Id. at 303-04. The same is true here: 

(1) Martinez intends to use expert testimony to prove causation and damages; (2) relators want to 

allow their competing expert “the same opportunity” to examine Martinez as Martinez’s expert 

had; (3) the results of the requested examination “go[es] to the heart of [relators’] defense 

strategy”; and (4) Dr. Boake’s credibility may be questioned at trial if he opines without having 

examined Martinez. Id.; see also In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 801 

(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (“Jones’s physicians and therapists have 

performed examinations and tests, and the results of these examinations will form part of the 

evidence and the basis for expert opinion on causation and damages.”).

Furthermore, Dr. Boake offered a detailed explanation of why he could not confidently rely 

on the alternative means suggested by Martinez. See Offshore Marine, 496 S.W.3d at 801 

(relator’s expert stated plaintiff’s expert’s “findings are inconsistent with typical symptoms of 

concussion and there are indications of test score errors and possible misrepresentations by 

[plaintiff] of his symptoms”); Ten Hagen Excavating, 435 S.W.3d at 870 (Ten Hagen’s expert 

concluded diagnoses made by plaintiff’s expert “did not ‘fit together’ and were not ‘all reasonably 

considered to be sequella of the motor vehicle collision’”). Finally, the trial court’s “finding” that 

“[m]ost of the previous standard tests would be repeated unnecessarily with likely unreliable 

results due to [Martinez’s] prior exposure to the same type of tests and the stress of the adversarial 

intrusiveness of [relators’] expert as well as the excessive duration of the duplicative testing” is 

based entirely on the arguments of Martinez’s attorney. No evidence or expert testimony was 

offered to support this contention. 

We conclude that if relators are not allowed to obtain an independent neuropsychological 

examination of Martinez, they “will have no opportunity to explore and develop evidence that 
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supports theories that contradict the theories espoused by [Dr. Pollock].” See Ten Hagen 

Excavating, 435 S.W.3d at 871; see also Sherwood Lane Assocs. v. O’Neill, 782 S.W.2d 942, 945 

(Tex. App.—Houston [1st Dist.] 1990, orig. proceeding) (“Unless relators are allowed the 

requested relief, their expert’s analysis will be limited to a review of the [plaintiff’s] records and 

the testimony of the [plaintiff’s] psychologists. Relators’ expert would be precluded from 

examining matters not covered by the [plaintiff’s] psychologists’ examinations and would be 

precluded from making his own observations. The trial court’s action severely restricts relators’ 

opportunity to discover facts that may contradict the opinions of the [plaintiff’s] expert witnesses. 

In turn, such restriction severely limits relators’ ability to contest the [plaintiff’s] claim for mental 

injury damages.”).

CONCLUSION

For the above reasons, we hold that the information relators seek is necessary for a fair trial 

and cannot be obtained by less intrusive means. Therefore, we conditionally grant the petition for 

writ of mandamus, direct the trial court to withdraw its “Order on Defendants’ Motion to Conduct 

Neuropsychological Examination,” and enter an order requiring Martinez to submit to a 

neuropsychological examination on reasonable and appropriate terms and conditions. We are 

confident the trial court will comply within fifteen days from the date of this opinion. A writ will 

issue only if the trial court fails to do so.

Irene Rios, Justice