1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________ NO. 09
- 17
- 00382
- CV



### _________________
IN RE GERDAU AMERISTEEL US, INC., ERIC GLYNN DAIGLE, AND TORRY DEVON VOLRIE

________________________________________________________________________ Original Proceeding 58th District Court of Jefferson County, Texas

Trial Cause No. A
- 197,282

________________________________________________________________________ MEMORANDUM OPINION In this mandamus proceeding, Gerdau Ameristeel US, Inc., Eric Glynn Daigle, and Torry Devon Volrie , Relators and D efendants in the court below , seek a writ of mandamus directing the trial court to order Kirk Howard McCarty , Real Party in Interest and the P laintiff in the court below , to return to an IME doctor to

“ complete his independent medical examination ” and to answer the IME doctor’s questions regarding “Wha t happened ? ” in the accident and questions that flow from tha t threshold question. Relators further request a writ of mandamus directing the2

trial court to order Plaintiff McCarty to pay the costs when the independent medical examination is re

- convened and completed. We stayed further proceedings in the trial court and requested a response to the mandamus petition. See Tex. R. App. P. 52.8(b)(1) , 52.10. The Real Party in Interest filed a response to the petition. According to the record now before us, the Defendants filed a Motion for Reconsideration with the trial court , arguing that Plaintiff’s failure to fully participate in the interview portion of the IME impaired their ability to complete the IME. The trial court held a hearing on the motion , heard testimony from the IME doctor, viewed the video from the IME, and thereafter concluded that the IME was complete, and denied D efendants’ request to compel McCarty to return to answer the questions. In their m andamus p etition t he Relator D efendants complain that they were unable to complete the examination because McCarty refused to answer questions about “what happened in the accident [

. ] ” Relators argue that “ [ w ] ithout a full IME that complies with In re HEB [ 1 ] and the AMA guidelines, Relators are per se

1 In re HEB Grocery Co., L.P. , 4 92 S.W.3d 300 (Tex. 2016) (per curiam) (holding the trial court abused its discretion by denying HEB’s request for an IME after HEB satisfied the requirements of Rule 204.1); see also Tex. R. Civ. P. 204.1. Unli ke In re HEB , the trial court granted Relators’ request for an IME and one was con ducted. Relators are arguing that the examiner could not complete the IME because McCarty refused to answer the question, “What happened?” Therefore, HEB is inapposite.3

prejudiced because the IME conducted by Dr. Rosenfield

— as opposed to the examinations performed by Plaintiff’s medical providers

— is inherently unequal.” In the Motion for Rehearing, the Relator D efendants also argued that the refusal of McCarty to answer q uestions about the accident deprived “ Dr. Rosenfield of information that he requires , ” and that if the trial court did not order McCarty to answer the questions it would then enable the Plaintiff to make “ Daubert / Robinson challenges ” to Dr. Rosenf ield’s op inions because he had incomplete information

. The video of the IME was introduced at the hearing and the record reflects that the trial court reviewed the video before making its ruling. The video indicates that the entire IME lasted for approximately 31 minutes. At about four minutes into the interview segment of the IME, the following exchange occurred : Q. (Dr. Rosenfield) Can you tell me what happened in the accident that you recall, not what people told you? A. (McCarty) I’m just here for a physical exam. I’m not here to answer questions about my accident or anything like that. Q. (Dr. Rosenfield) I’m [

just asking ] , you don’t want to... A. (McCarty) I don’t want to discuss my accident with you. Thereafter, Dr. Rosenfield asked additional questions , McCarty answered those questions, and Dr. Rosenfield conducted a physical examination. D r. Rosenfield testified by affidavit and live at the hearing that he was unable to

“ complete ” his examination because McCarty would not answer questions about what happened in the accident

. According to Dr. Rosenfield, he received and4

reviewed McCarty’s Oral Deposition, but as a physician he would have asked different questions about the accident and mechanism of injury than what the attorneys asked in the deposition. During the hearing, t he D efendants also referenced and introduced a document from an article entitled “Standards for Independent Medical Examinations” that states it was “published by the AMA, American Medical Association, in ‘The Guides Newsletter ’ November/December 2005 edition [

. ] ” Therein, the article indicates the examiner should obtain a history which includes, in part, ask ing the patient to describe “how and when the injur y/ illne ss occurred: (Mechanism of injury). ” Mandamus will issue only when the petition and record establish a clear abuse of discretion for which the relator has no adequate remedy at law. See In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839

- 40 (Tex. 1992) (orig. proceeding). After reviewing the mandamus petition, response, and record, we conclude that Relators have not shown that they are entitled to mandamus relief. See Tex. R. App. P. 52.8(a). 2 Accordingly, we lift our stay order and deny the petition for a writ of mandamus. Id

.

2 We note that the re is nothing in the record now before us indicating that any party has filed or that the trial court has considered a Daubert/Robinson challenge to the expert’ s testimony. See E.I. du Pont de Nemours & Co. v. Robinson , 9235

PETITION DENIED.

PER CURIAM

Submitted on October 30, 2017 Opinion Delivered December 7, 2017 Before McKeithen, C.J., Horton and Johnson , JJ.

S.W.2d 549, 556 (Tex. 1995) (adopting Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 591

- 92 (1993)). In the event of such a challenge, the trial court could reconsider Relator’s request to re

- convene the IME and its ruling might be subject to further review by this Court in a subsequent mandamus proceeding or appeal.