In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-20-00071-CV

___________________________

Original Proceeding

Trial Court No. 19-4237-16

Before Sudderth, C.J.; Gabriel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

IN RE PABLO REYES, Relator
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MEMORANDUM OPINION

Relator Pablo Reyes sued Real Party in Interest Keith Hamaker, alleging that he 

injured Reyes’s right arm. Hamaker filed a motion for an independent medical 

examination, and Respondent granted the motion in an order that states, 

ON THIS day came on to be heard DEFENDANT KEITH 

HAMAKER’S Motion for Independent Medical Examination and the 

Court having considered said Motion finds that same should be granted.

IT IS, THEREFORE, ORDERED, ADJUDGED and 

DECREED that DEFENDANT KEITH HAMAKER’s Motion for 

Independent Medical Examination be GRANTED and that Plaintiff is 

ordered to submit to an independent medical examination no later than 

the 15th day of March, 2020 or as agreed to by counsel.

In four issues in his petition for writ of mandamus, Reyes complains that 

Respondent’s order is an abuse of discretion because it is overbroad and overintrusive and argues that he is entitled to mandamus relief because he has no adequate 

remedy by appeal.1 We requested a response from Hamaker. See Tex. R. App. P. 

52.8(b)(1) (stating that the court must request a response if the court is of the 

tentative opinion that relator is entitled to the relief sought or if a serious question

concerning the relief requires further consideration).

1Reyes asks whether Respondent abused her discretion by granting the motion 

as to his “unrelated Left Arm, which is not in controversy in the underlying lawsuit,”

by failing to follow Texas Rule of Civil Procedure 204.1(d)’s specificity requirements,

and by failing to require Hamaker to show that the desired information cannot be 

obtained by less intrusive means, and he complains that he has no adequate remedy by 

appeal because the order impairs his right to a fair trial.
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We may grant mandamus relief from a discovery order only when (1) the trial 

court’s decision is so arbitrary and unreasonable that it is “a clear and prejudicial error 

of law” and (2) the relator has no adequate remedy by appeal. In re State Farm Lloyds, 

520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding). A trial court’s clear failure to 

correctly apply the law is an abuse of discretion. In re M-I L.L.C., 505 S.W.3d 569, 

574 (Tex. 2016) (orig. proceeding). And appeal is inadequate when a party is in 

danger of losing substantial rights, such as when an appellate court could not cure the 

trial court’s discovery error. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211

(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992) 

(orig. proceeding). 

The scope of discovery is generally within the trial court’s discretion so long as 

a discovery order does not exceed what the Texas Rules of Civil Procedure permit. 

See Tex. R. Civ. P. 192.4; State Farm Lloyds, 520 S.W.3d at 604. As applicable here, 

under Rule 204.1, a trial court may issue an order for examination only for good cause 

shown and only when the party’s physical condition is in controversy, and the order

“must be in writing and must specify the time, place, manner, conditions, and scope 

of the examination” and by whom it is to be made. See Tex. R. Civ. P. 204.1(c)(1), (d). 

“[G]ood cause” requires the movant to show that the requested examination is 

relevant to issues in controversy and will produce or likely lead to relevant evidence, 

to establish a reasonable nexus between the requested examination and the condition 

in controversy, and to demonstrate that the desired information cannot be obtained 
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by less intrusive means. In re H.E.B. Grocery Co., 492 S.W.3d 300, 303–04 (Tex. 2016) 

(orig. proceeding) (focusing on fairness in battle of experts).

Here, on its face, Respondent’s order does not set out the place, manner, 

conditions, or scope of the examination, or by whom it is to be made. See In re Sharaf, 

No. 03-18-00671-CV, 2018 WL 5796977, at *3 (Tex. App.—Austin Nov. 5, 2018, 

orig. proceeding) (mem. op.) (granting partial relief when “the order does not limit the 

scope of the examination to the identified testing and interview or place other 

parameters on the examination, such as limiting the testing to standardized testing or 

placing a limitation on the duration of the testing and interview”). Because the order 

demonstrates a clear failure to comply with Rule 204.1’s requirements, we sustain the 

relevant portions of Reyes’s four issues and conditionally grant partial relief so that 

Respondent may tailor the order to comply with Rule 204.1’s requirements, thereby 

limiting the order to that which fairness requires. See, e.g., In re Offshore Marine 

Contractors, Inc., 496 S.W.3d 796, 801–03 (Tex. App.—Houston [1st Dist.] 2016, orig.

proceeding) (discussing less intrusive means). We are confident that Respondent will 

modify the order in accordance with this opinion and will instruct our clerk to issue 

the writ only if Respondent fails to do so. All other relief is denied.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: March 19, 2020