Supreme Court of Texas 

══════════

No. 21-0886 

══════════

In re Auburn Creek Limited Partnership; The Lynd Company; 

Lynd Family Limited Partnership; and Forty Four Eleven, LLC, 

Relators

═══════════════════════════════════════

On Petition for Writ of Mandamus 

═══════════════════════════════════════

PER CURIAM 

Justice Lehrmann did not participate in this decision. 

This mandamus proceeding concerns a motion to compel a 

medical examination under Texas Rule of Civil Procedure 204.1. 

Because the motion was filed before the close of discovery and the trial 

court clearly abused its discretion in concluding that relators did not 

establish good cause for the examination, we conditionally grant relief. 

Real parties in interest, six members of the Pau family, sued 

relators, Auburn Creek Limited Partnership, the Lynd Family Limited 

Partnership, The Lynd Company, and Forty Four Eleven, LLC 

(collectively, Auburn Creek). The Paus seek $33 million in economic 

damages, plus past and future non-economic damages, that they allege 

were caused by carbon-monoxide exposure in an apartment they leased 

from Auburn Creek. The Paus designated Dr. Nadia Webb as a medical 
2 

expert. Dr. Webb evaluated members of the Pau family between October 

2018 and December 2020. 

Auburn Creek designated Dr. Gilbert Martinez as its medical 

expert. Dr. Martinez produced a preliminary report for each member of 

the Pau family. These reports were based solely on medical records, as 

Dr. Martinez had not personally examined any member of the family. 

On June 1, 2021, Auburn Creek filed a Rule 204.1 motion to 

compel a neuropsychological exam for each of the Paus. With the 

motion, Auburn Creek included an affidavit from Dr. Martinez. In the 

affidavit, Dr. Martinez averred that he could not ethically express a 

medical opinion based solely on records. He included a list of fifty-three 

possible tests for the Pau adults and twenty-three tests for the children. 

Dr. Martinez proposed to begin with a 90- to 120-minute clinical 

interview, followed by tests from the provided list for up to eight hours 

per family member. He testified that he could not be certain exactly 

which tests would be performed until he met with the patients. On June 

6, the trial court denied the motion without prejudice, concluding that 

the scope of the exams was not sufficiently circumscribed.1

On July 15, Auburn Creek filed a motion for reconsideration of 

the motion to compel, attaching a supplemental affidavit from Dr. 

Martinez. Dr. Martinez reduced the list of possible tests from fifty-three 

to forty-four for the adults and from twenty-three to twenty-two for the 

1 In Bexar County Civil District Courts, the local rules establish a 

central-docketing system that allows for more than one judge to preside over 

discovery hearings and other matters that do not require witnesses. The 

relevant orders in this case were signed by three different judges. 
3 

children. Dr. Martinez also testified that he could not be more specific 

about which tests might be performed because that could bias the 

patients’ results and introduce error. 

Auburn Creek also filed a motion for continuance, which was 

granted. The discovery deadline was set for September 7, with limited 

exceptions not related to the neuropsychological exams at issue here. 

The trial court heard the motion to reconsider on September 2. 

The court denied the motion, concluding that the testing—which would 

take up to ten hours per family member—would necessarily extend 

beyond the September 7 discovery deadline. The court also ruled that 

Dr. Martinez’s proposed list of tests still failed to satisfy Rule 204.1’s 

scope requirements. 

The Paus subsequently moved to strike Dr. Martinez as an expert 

for Auburn Creek, and the court granted the motion in part. The court 

ordered that Dr. Martinez could not opine on the nature and extent of 

the Paus’ injuries, at least in part because Auburn Creek admitted that 

Dr. Martinez could not render such an opinion without conducting his 

own exam. The court of appeals denied Auburn Creek’s request for 

mandamus relief in a nonsubstantive opinion. ___ S.W.3d ___, 2021 WL 

4556062, at *1 (Tex. App.—San Antonio Oct. 6, 2021, orig. proceeding). 

Auburn Creek now seeks mandamus relief from this Court. 

Because we agree with Auburn Creek that its Rule 204.1 motion was 

timely and the trial court clearly abused its discretion by concluding that 

Auburn Creek had not shown good cause for the exams, we conditionally 

grant relief. 
4 

Mandamus is an extraordinary remedy that is granted only when 

the relator shows that the trial court clearly abused its discretion and 

no adequate appellate remedy exists. In re Prudential Ins. Co. of Am., 

148 S.W.3d 124, 135-36 (Tex. 2004). 

When a trial court fails “to analyze or apply the law correctly,” it 

has clearly abused its discretion. Walker v. Packer, 827 S.W.2d 833, 840 

(Tex. 1992). Essentially, the trial court has no discretion in determining 

the law or applying the law to the facts. Id. 

Here, the trial court failed to apply Rule 204.1 correctly to the 

facts. 

The parties dispute (1) whether the motion was timely and 

(2) whether Auburn Creek showed good cause for the exams. We 

address each dispute in turn. 

Regarding timeliness, the Pau family argues that the motion to 

reconsider the denial of the motion to compel was not timely and that 

Auburn Creek generally was not diligent in seeking the exam. The trial 

court did not hear the motion to reconsider until September 3, so the 

Paus assert that the court did not abuse its discretion because the exams 

could not have been completed by the September 7 discovery deadline. 

We disagree. Auburn Creek did timely seek the exams, and the delay in 

hearing the motion to reconsider was outside of Auburn Creek’s control. 

A party must move to compel an examination “no later than 30 

days before the end of any applicable discovery period.” TEX. R. CIV. P. 

204.1(a). Given the September 7 discovery deadline, the last day to file 

a Rule 204.1 motion was August 8. Auburn Creek filed its initial motion 

to compel the exams on June 1. The trial court denied the motion but 
5 

invited Auburn Creek to refile. Auburn Creek refiled on July 15, again 

prior to the Rule 204.1 deadline. Thus, Auburn Creek met the deadline 

set by the Rule. 

Although the trial court did not hold a hearing on this motion to 

reconsider until September 3, the delay was due to factors outside of 

Auburn Creek’s control. The hearing was moved due to scheduling 

conflicts of the Paus’ counsel and the trial court’s availability, as well as 

a period of delay while Auburn Creek’s counsel recovered from COVID. 

To the extent that the trial court denied the motion to reconsider based 

on timeliness, that was a clear abuse of discretion. 

Turning to the merits of the motion, we conclude that Auburn 

Creek satisfied Rule 204.1’s requirements. A trial court “may” compel 

examination “only for good cause shown” and “when the mental or 

physical condition . . . of a party . . . is in controversy.” TEX. R. CIV.

P. 204.1(c)(1). Although the rule uses the permissive “may,” the trial 

court does not have unfettered discretion to deny requests for exams. 

Cf. Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011). To be sure, Rule 204.1 

does not grant an automatic right to an exam. In re Ten Hagen 

Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig. 

proceeding). But when the trial court reasonably could have reached 

only one conclusion, “the discretion vested in the court is for all practical 

purposes destroyed.” Id.; see Walker, 827 S.W.2d at 840. 

Here, the trial court determined that the Paus’ 

neuropsychological conditions had been placed in controversy. Thus, the 

only disputed issue is whether Auburn Creek showed good cause. 
6 

The purpose of the rule’s “good-cause requirement is to balance 

the movant’s right to a fair trial and the other party’s right to privacy.” 

In re H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016). To establish 

good cause, the movant must show that (1) the examination is relevant 

to the issue in controversy and is likely to lead to relevant evidence, 

(2) there is a reasonable nexus between the examination and the 

condition in controversy, and (3) the desired information cannot be 

obtained by less intrusive means. Id. Auburn Creek’s original motion 

and its motion for reconsideration met all three requirements. 

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. See id. Here, Dr. 

Martinez proposed a battery of tests to evaluate the Paus’ claims of brain 

injuries due to carbon-monoxide exposure, including the existence, 

cause, nature, extent, and proper treatment of any injuries. The Paus’ 

expert, Dr. Webb, had conducted twenty-seven different tests on one of 

the minor plaintiffs to assess cognitive abilities, language, attention, 

and memory. Auburn Creek seeks a similar opportunity for Dr. 

Martinez to evaluate the claimed mental injuries and to develop facts 

that might contradict Dr. Webb’s opinion. Dr. Martinez also testified 

that additional testing is necessary because Dr. Webb’s tests “did not 

allow for sufficiently detailed examination of performance validity, 

emotional functioning, and memory which would be needed to 

understand and rule out all potential causes of the [Paus’] reported 

memory deficits.” This record shows that Dr. Martinez’s tests will likely 

lead to the discovery of relevant evidence. 
7 

Turning to reasonable nexus, a movant must provide more than 

conclusory allegations and show more than mere relevance to the case. 

Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988); see 

Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). Rather, there must 

be evidence that the requested examination “directly relates to the 

condition in controversy.” H.E.B., 492 S.W.3d at 303. The parties 

dispute whether Dr. Martinez sufficiently limited the scope of the 

examinations, and the trial court denied both motions based on this 

requirement, at least in part. 

Dr. Martinez testified that the neuropsychological exams would 

assess the claimed injuries, including memory impairment, language 

difficulties, anxiety, depression, and processing deficiencies for each of 

the six plaintiffs. This wide variety of disorders and symptoms is listed 

in Dr. Webb’s report on the Paus’ behalf. Although Dr. Martinez 

provided a lengthy list of possible tests, many of which were similar to 

the ones Dr. Webb performed, the Paus did not object to any particular 

test. Dr. Martinez testified that he could not be certain which tests 

would be appropriate until he interacts with each plaintiff in a clinical 

interview and makes first-hand behavioral observations. Dr. Martinez 

also identified the risk of bias and error if the patients are aware of the 

exact list of tests to be performed.2 This evidence shows a reasonable 

nexus between the proposed examinations and the conditions at issue. 

2 The Paus’ reliance on In re Estabrook ignores these facts. No. 

10-20-00175-CV, 2020 WL 6192923 (Tex. App.—Waco Oct. 21, 2020, orig. 

proceeding). In Estabrook, a single plaintiff alleged symptoms limited to 

depression and PTSD. Id. at *4. Here, the six Pau family members asserted a 
8 

Finally, the movant must show that the exam would be the least 

intrusive means of discovering the desired information “in light of the 

fair trial standard.” In re Offshore Marine Contractors, Inc., 496 S.W.3d 

796, 800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). This 

requirement focuses on the importance of the discovery sought and the 

ability to find it elsewhere. In particular, courts should consider 

whether the exam is likely to reveal information necessary to assess the 

complained-of injuries beyond what could be obtained from reviewing 

any medical records available to the expert. See H.E.B., 492 S.W.3d at 

303-04. 

In H.E.B., the defendant’s expert explained why a treating doctor 

was in a better position than a records-review doctor to examine and 

opine on the plaintiff’s alleged injuries. See id. The plaintiff intended 

to prove causation and damages through expert testimony from doctors 

who had examined the plaintiff. Id. We concluded that the results of 

the defendant’s requested exam went to the heart of its defense strategy 

and that requiring the defendant’s expert to testify at trial without the 

exam would place him at a distinct disadvantage because it would allow 

the plaintiff to call into question his credibility in front of the jury. Id.

Similarly, Dr. Martinez addressed in his affidavit the need to 

examine the Paus before opining on the nature, cause, and extent of 

their injuries. The Paus’ expert, Dr. Webb, personally examined them 

and will testify at trial about those exams. Dr. Martinez explained that 

a deposition of Dr. Webb conducted by a lawyer would be insufficient to 

much broader list of conditions. Further, the proposed orders in this case are 

more detailed than the proposal in Estabrook. 
9 

obtain the information required to rebut or respond to Dr. Webb’s 

neuropsychological opinions. And without conducting his own exams, 

Dr. Martinez predicted that he would likely be barred from testifying on 

some issues or subjected to critical cross-examination for lack of 

first-hand knowledge. Indeed, the trial court later struck Dr. Martinez’s 

testimony in part, preventing him from testifying about the Paus’ 

injuries without conducting his own exam. In other words, absent an 

exam, Auburn Creek would lose the battle of the experts. See In re 

Redbird Trails Apartments, No. 05-20-00284-CV, 2020 WL 3445811, at 

*3 (Tex. App.—Dallas June 24, 2020, orig. proceeding). 

For these reasons, Auburn Creek has shown good cause to compel 

a medical examination of the opposing parties. Because the trial court 

reasonably could have reached only one conclusion on these facts, it 

clearly abused its discretion in denying the motions. 

“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., 492 S.W.3d at 304 (internal quotation marks 

omitted). We conduct a benefits-and-detriments analysis to determine 

whether mandamus relief is appropriate. In re McAllen Med. Ctr., 275 

S.W.3d 458, 464 (Tex. 2008). Just as we did in H.E.B., we conclude that 

mandamus relief is appropriate here. See 492 S.W.3d at 304-05. 

Auburn Creek’s defense largely turns on its challenges regarding the 

cause, nature, and extent of the Paus’ brain injuries, and a fair 

resolution of those challenges at trial depends on competing expert 

testimony that Auburn Creek has not been given an opportunity to 

develop. Because Auburn Creek’s ability to present a viable defense has 
10 

been severely compromised, it lacks an adequate remedy by appeal. 

McAllen Med. Ctr., 275 S.W.3d at 468. The orders denying the requested 

exams should be withdrawn. 

Finally, Auburn Creek also challenges the trial court’s order 

partially striking Dr. Martinez as an expert witness on the ground that 

he did not offer any opinions in his report. Auburn Creek conceded that 

Dr. Martinez would not be able to opine on the nature and cause of the 

injuries without an exam. Because the erroneous denial of an 

examination affected the trial court’s ruling on the motion to strike, that 

ruling should be reconsidered. 

Accordingly, without hearing oral argument, see TEX. R. APP. P.

52.8(c), we conditionally grant Auburn Creek’s petition for writ of 

mandamus. We direct the trial court to withdraw its orders denying the 

motion to compel and partially striking the expert and to sign an order 

requiring the Paus to submit to the examination proposed in Auburn 

Creek’s motion for reconsideration on reasonable terms and conditions.3 

Our writ will issue only if the trial court does not comply. 

OPINION DELIVERED: December 2, 2022 

3 The trial court should address in the first instance the Paus’ requests 

to have a parent present when the minor plaintiffs are examined and to have 

an interpreter present when necessary. Auburn Creek represents that it does 

not oppose these requests.