## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00071

- CV

___________________________

Origina l Proceeding Trial Court No. 19

- 4237

- 16
Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth 

### I N RE 

### P ABLO 

### R E YES 

### , Relator2 MEMORANDUM OPINION
Rel ator Pablo Reyes sued Real Party in Interest Keith Ham aker , alleging that he injured Reyes ’ s right a rm. Hamaker filed a motion for an independent m edical examination, and Respondent granted the motion in an order that states,

ON THIS day came on to be heard DEFENDANT KEI TH HAMAKER ’ S Motion for Independent Medical Examination and the Court having consid e red said Motion finds that same sh ould be granted. IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that DEFENDANT KEITH HAMAKER’s Motion for Independent Medical Examinatio n be GRANTED and that Pl aintiff is ordered to submit to an independent medical exam i nation 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 Responde nt ’ s order is an abuse o f discretion because it is over broad and over

intrusive and argues tha t he is entitled to man d amus 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 requ est a response if the court is of the
tentativ e opin ion that relator i s entitled to the relief sought or if a serious qu estion concerning the relief requires further consideration).

1 Reyes asks whether R esponden t abused her discretion by granting the motion as to his “ unrelated L eft Arm, which is not in controv ersy in the underlying lawsuit , ” by failing to follow Texas Rule of Civil Procedur e 204.1(d) ’ s spec i ficity requirements , and by failing to require Hamaker to show that the desired information ca nnot 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

.3

We may grant mandamus relief from a discovery orde r only when (1) the tria l
court’s decisi on is so arbitrary and unreaso nable that it is “a clea r 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 abus e of discretio n. In re M

- I L.L.C. , 505 S.W.3d 5 69, 574 (Tex. 2016) (orig. proceedi ng). A nd a ppeal is inadequate when a party is in danger of losing substantial rights, such as when an appellate court could no t cure the trial court’s discovery error

. See In re Van Wat ers & Roge rs, 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 tr ial court’s discretion so long as a discovery order does not exceed wh at the Texas Rules of Ci vil Procedur e 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 cou rt may issue an order fo r examination only for good cause
shown and on ly when the pa rty’s phys ical condition is in con troversy, and the order “must be in writing and must specify the time, place, manner, conditions, and scope of the examination” and by who m it is to be made. See Tex. R. Civ. P. 204.1(c)(1), (d).

“ [G ] ood ca use” requires the movant to show that the reques ted examinat ion is relevant to issues in controversy and will produce or likely lead to relevant evidence,

to establish a reasonable nexus be tween the requested e xamination and the condition in controversy, a nd to demonstrate th at t he desired information cannot be o btained4

by less intrusive means. In re H.E.B. Grocery Co. , 492 S.W.3d 300, 303

– 04 (Tex. 2016) (orig. proceeding) (focusing on fairnes s in battle of exp erts). Here, o n its face, Respondent ’ s order d oes not set out the plac e, manner, conditions, or scop e 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. pr oce eding) (mem. op.) (granting partial relief whe n “the order does no t li mit the scope of the examinati on to the identified testing and interview or place other parameters on the examination, such as limiting the testing to standardized test ing or placing a l imitation on the duration of the testing and i nterview”). Because th e order
de monstrates a clear fa ilure to comply with Rule 204.1 ’ s requirements, we sustain the
rel evant portions of Reye s ’ s four issues an d conditionally grant partial re lief s o that Respo ndent may tailor the order t o comply with Rule 204.1 ’ s requirement s , t hereby limiting the order to t hat which fairness requires. See , e.g. , In re Offshore Marine Contractors, Inc. , 496 S.W.3d 796, 801

– 03 (Tex. App.

— Houston [1st Dist.] 20 16, orig

. proceedi ng

) (discussing less intrusive means). We a re confident that Resp onde nt will modify the order in ac cordance 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 Ch ief Justice
Delivered: March 19, 2020