1 

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. 
2

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.
3

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 
4

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 
5

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 
6

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 
7

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 1⁄2 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.
8

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 
9

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. 
10

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. 
11

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 
12

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 
13

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.
14

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on January 18, 2024

Opinion Delivered May 9, 2024

Before Golemon, C.J., Horton and Wright, JJ.