Opinion issued July 18, 2018

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-18-00383-CV

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IN RE KIRBY INLAND MARINE, LP, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

This original proceeding arises from a Jones Act case in which real party in 

interest Rodrick Benson seeks damages for physical and psychological injuries 

incurred while in the course and scope of employment for relator Kirby Inland 

Marine.* Although Benson’s neuropsychologist performed a two-day examination 

 

* The underlying case is Rodrick Benson v. Kirby Inland Marine, LP, cause 

number 2017-29148, pending in the 61st District Court of Harris County, 

Texas, the Honorable Fredericka Phillips, presiding.
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that included a battery of tests, the trial court denied Kirby’s request for its 

neuropsychologist to perform a 6.5-hour evaluation with no duplicative testing. 

Instead, the trial court limited Kirby’s examination to two hours and required 

advance disclosure of the tests its expert planned to administer. Kirby contends that 

by so doing, the trial court abused its discretion. We conditionally grant relief.

Background

Claiming both physical and psychological injuries from exposure to ammonia 

gas, Rodrick Benson was examined by neuropsychologist Dr. Larry Pollock over a 

two-day period. The examination included 28 neuropsychological tests and 

additional cognitive assessments. Dr. Pollock identified a number of 

neuropsychological deficits and concluded that Benson suffered three significant 

impairments: major depressive disorder, post-traumatic stress disorder (PTSD), and 

major neurocognitive disorder. Dr. Pollock recommended long-term treatment and 

rehabilitation, and he concluded that Benson’s impairments would be progressive, 

requiring “lifelong medical care.” 

Kirby sought an independent neuropsychological examination by Dr. David 

Price that would require approximately 6.5 hours to perform. Kirby agreed that 

Dr. Price would not perform tests duplicative of those already performed by 

Dr. Pollock. Benson ultimately agreed to the examination, but he requested 

“reasonable limits” of a two-hour testing period and advance disclosure of the tests 
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to be performed. Kirby opposed these limitations, but the trial court issued an order 

imposing them.

Kirby filed a motion for reconsideration, attaching an affidavit from Dr. Price 

which explained that the time restriction essentially would prevent him from 

performing an effective evaluation of the disorders diagnosed by Dr. Pollock. 

Dr. Price also stated that assessment of these disorders would require administration 

of multiple tests, some of which take two hours to administer. Finally, Dr. Price 

urged the court not to require advance disclosure of the tests as it could permit 

Benson to anticipate and prepare for them, which could skew the results. The trial 

court signed an order denying the motion for reconsideration.

Analysis

To be entitled to mandamus relief, a petitioner must show both that the trial 

court abused its discretion and that there is no adequate remedy by appeal. In re 

Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its 

discretion if its actions are made “without reference to any guiding rules and 

principles” or are “arbitrary or unreasonable.” Downer v. Aquamarine Operators, 

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “A trial court has no ‘discretion’ in 

determining what the law is or applying the law to the facts,” and a clear failure to 

“analyze or apply the law correctly” is an abuse of discretion. Walker v. Packer, 827 

S.W.2d 833, 840 (Tex. 1992).
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Requests for a physical or mental examination of an adverse party are 

governed by Rule 204.1. A trial court may issue an order for a psychological 

examination “when the party responding to the motion has designated a psychologist 

as a testifying expert or has disclosed a psychologist’s records for possible use at 

trial.” TEX. R. CIV. P. 204.1(c). The movant must show that the party’s condition is 

in controversy and that there is good cause for the evaluation. See In re H.E.B. Groc. 

Co., L.P., 492 S.W.3d 300, 303 (Tex. 2016) (per curiam); In re Advanced Powder 

Sols., Inc., 496 S.W.3d 838, 848 (Tex. App.—Houston [1st Dist.] 2016, orig. 

proceeding). The good-cause requirement requires a court to balance the movant’s 

right to a fair trial and the opposing party’s right to privacy. See In re H.E.B., 492 

S.W.3d at 303. To show good cause for the examination, a 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. 

Kirby addressed each of these requirements in its Rule 204.1 motion. Benson 

did not dispute that his psychological and cognitive condition was in controversy. 

Instead, he challenged the intrusiveness of the testing and requested two limitations 

the trial court ultimately imposed—a two-hour time period for the examination and 

advance notice of the tests to be administered.
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Kirby stated in its motion, and reiterates here, that its proposed testing 

conditions were the least intrusive means to obtain the information it needed. 

Dr. Price agreed not to repeat tests already conducted by Dr. Pollock and stated that 

6.5 hours of testing would be necessary to perform a standard neuropsychological 

evaluation. In its motion for reconsideration and in its mandamus petition, Kirby has 

asserted that the time and advance-notice limitations imposed by the trial court are 

an abuse of discretion because they are unreasonable in light of the proof presented, 

and they essentially preclude Dr. Price from performing a valid, standard 

neuropsychological assessment. 

Benson responds that because Kirby failed to state what tests would be 

performed, it had no support for its request for a 6.5-hour testing period. Moreover, 

he argues that without knowing the tests Dr. Price would perform, “the trial court 

was unable to determine whether the secret tests were previously conducted, whether 

they were the substantial equivalent of tests that were already performed, or whether 

they were even necessary in the first place.” 

Benson’s arguments in support of the trial court’s order are similar to those 

raised by the plaintiff in In re Offshore Marine Contractors, Inc., 496 S.W.3d 796 

(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). In that case, the plaintiff 

claimed that the defendant failed to meet its burden to show why additional 

neuropsychological testing was necessary, given that the plaintiff already had 
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undergone lengthy neuropsychological testing by his own expert and repeat testing 

could lead to invalid results. See id. at 800. This court found it was an abuse of 

discretion to deny the defendant’s request to conduct neuropsychological testing. A 

need for an examination to obtain a fair trial was shown when the plaintiff would 

use expert testimony to prove causation and damages, the defense requested the 

same opportunity for evaluation as the plaintiff’s expert had, and the evaluation was 

necessary to its defense. See id. at 803 (citing In re H.E.B., 492 S.W.3d at 303–04). 

Despite Kirby’s agreement to limit the time and scope of the examination, the 

trial court imposed two limitations that, according to Dr. Price, essentially deny 

Kirby’s right to an evaluation. In support of this conclusion, Kirby showed the 

following: (1) the two-hour time limit would essentially prevent Dr. Price from 

performing a standard neuropsychological examination, thereby limiting the 

information available to him and the conclusions he could draw; (2) the two-hour 

time limit would prevent him from rendering a diagnosis on each of Dr. Pollock’s 

diagnoses because relating almost six thousand pages of medical and legal records 

to Benson’s conditions could not be done in two hours; (3) a single test of 

psychopathology takes two hours to administer; (4) a psychopathology test, such as 

the one performed by Dr. Pollock, could be affected by attitude, but is not influenced 

by a “practice effect”; (5) Dr. Pollock administered only one test to assess PTSD and 

none of the tests he administered are ones recommended by the National Center for 
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PTSD; (6) Dr. Pollock’s diagnosis of major depressive disorder requires further 

assessment because depression can be both a symptom of other mental disorders and 

an independent disorder; (7) lack of forewarning of tests to be administered is 

important to measure motivation and malingering; and (8) the American Academy 

of Clinical Neuropsychology contradicts Benson’s claim of “practice effect” from 

repeat neuropsychological testing. 

Although a trial court must specify the time and scope of testing, TEX. R. CIV.

P. 204.1(d), “when a party asserts a physical or mental condition as part of a claim 

or defense, a trial court must be careful not to prevent the development of medical 

testimony that would allow the opposing party to fully investigate the conditions the 

party asserting the existence of the condition has placed in issue.” In re Ten Hagen 

Excavating, Inc., 435 S.W.3d 859, 867 (Tex. App.—Dallas 2014, orig. proceeding); 

see also Sherwood Lane Assocs. v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—

Houston [1st Dist.] 1990, orig. proceeding). If the “intended examination is not 

intrusive, invasive or unnecessarily physically uncomfortable,” parties may explore 

matters not addressed by its opponent’s examinations, make observations, and 

attempt to discover facts contradictory to the opinions of the opposing expert. In re 

Advanced Powder Sols., 496 S.W.3d at 851; see Offshore Marine Contractors, 496 

S.W.3d at 802–03. 
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Dr. Pollock conducted a battery of 28 neuropsychological tests over a twoday period, reaching multiple diagnoses that were based on his in-depth examination 

of Benson. Under these circumstances, fundamental fairness dictates that Kirby’s 

expert be allowed to conduct a standard neuropsychological evaluation or it “will be 

at a severe disadvantage in the battle of experts.” In re Advanced Powder Sols., 496 

S.W.3d at 851. 

Because the time and advance notice limitations imposed by the trial court 

deny Kirby the ability to conduct a full evaluation, the limitations violate 

fundamental fairness and the fair-trial standard, and therefore constitute an abuse of 

discretion. See id. at 851; Offshore Marine Contractors, 496 S.W.3d at 802–03. 

To be entitled to mandamus relief, Kirby also must establish that it lacks an 

adequate remedy by appeal. See Prudential, 148 S.W.3d at 135. In the discovery 

context, an appellate remedy is not adequate if: 

(1) the appellate court would not be able to cure the trial 

court’s error on appeal; (2) the party’s ability to present a 

viable claim or defense is vitiated or severely 

compromised; or (3) missing discovery cannot be made a 

part of the appellate record.

In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding). The 

adequacy of the appellate remedy “is determined by balancing the benefits and 

detriments of mandamus.” In re H.E.B., 492 S.W.3d at 304.
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There is no adequate appellate remedy when a defendant is denied the 

opportunity for its expert to fully develop his opinion. See id.; Ten Hagen, 435 

S.W.3d at 864 (concluding there was no adequate remedy by appeal because denial 

of request for independent medical examination not only compromised defendant’s 

ability to defend itself, but also prevented appellate court from being able to evaluate 

trial court error on appeal). The limitations imposed by the trial court have been 

shown to prevent Kirby’s expert from performing a standard neuropsychological 

assessment, and thus the limitations essentially deny him the opportunity to fully 

develop his opinion and diagnoses. Moreover, these limitations prevent Kirby from 

effectively challenging Benson’s experts. See H.E.B., 492 S.W.3d at 304. A fair trial 

is ensured only if the defendant’s expert has “the same opportunity as [the opposing 

party’s expert] to fully develop and present his opinion.” Id. at 304. And without that 

evidence, an appellate court is unable to evaluate the effect of the trial court’s error. 

See Walker, 827 S.W.2d at 843; Ten Hagen, 435 S.W.3d at 864. Balancing the 

benefits with the detriments of granting mandamus relief, the limitations imposed 

by the trial court will unreasonably hamper Kirby’s ability to present a defense and 

to challenge Benson’s expert witness, and therefore appeal would not be an adequate 

remedy. 

Conclusion
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Because Kirby has established that the trial court’s limitations on Dr. Price’s 

examination are an abuse of discretion for which there is no adequate remedy by 

appeal, we conditionally grant mandamus relief and order the trial court to vacate its 

order to the extent it limits Dr. Price’s evaluation to a two-hour period and requires 

advance disclosure of tests to be administered. 

PER CURIAM

Panel consists of Justices Keyes, Bland, and Massengale.