No. 01-15-00758-CV 

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

HOUSTON, TEXAS

IN RE ADVANCED POWDER SOLUTIONS, INC.,

 Relator. 

Original Proceeding from Cause No. 2014-16020 

In the 125th Judicial District Court of Harris County, Texas 

The Honorable Kyle Carter, Presiding 

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

KURT B. ARNOLD 

SBN: 24036150 

karnold@arnolditkin.com 

J. KYLE FINDLEY 

SBN: 24076382 

kfindley@arnolditkin.com 

KALA SELLERS 

SBN: 24087519 

ksellers@arnolditkin.com 

ARNOLD & ITKIN LLP 

6009 Memorial Drive 

Houston, Texas 77007 

Telephone: (713) 222-3800 

Facsimile: (713) 222-3850 

ATTORNEYS FOR REAL PARTY IN INTEREST,

TREMAINE HEWITT

ACCEPTED

01-15-00758-cv

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/30/2015 5:59:44 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/30/2015 5:59:44 PM CHRISTOPHER A. PRINE Clerk
 i

IDENTITY OF PARTIES AND COUNSEL

 In addition to the counsel identified in the Petition for Writ of Mandamus, 

please note the appearance of additional counsel for the Real Party in Interest: 

Kala Flittner Sellers 

SBN: 24087519 

ksellers@arnolditkin.com 

ARNOLD & ITKIN LLP 

6009 Memorial Dr. 

Houston, TX 77007 

Telephone: (713) 222-3800 

Facsimile: (713) 222-3850 
 ii

TABLE OF CONTENTS

 PAGE

IDENTITY OF PARTIES AND COUNSEL .......................................................................... i 

TABLE OF CONTENTS ................................................................................................. ii 

INDEX OF AUTHORITIES ............................................................................................ iiv 

ISSUES PRESENTED ................................................................................................... vii 

INTRODUCTION ............................................................................................................ 1 

STATEMENT OF FACTS ................................................................................................. 3 

ARGUMENT ................................................................................................................. 6 

I. Applicable Legal Standards ............................................................................. 6 

A. Mandamus ............................................................................................. 6 

B. Abuse of Discretion ............................................................................... 6 

C. Compelled Independent Medical Examinations ................................... 8 

II. The trial court properly exercised its discretion when it denied APS’s 

motion to compel both an independent medical examination and a 

functional capacity evaluation. ...................................................................... 10 

A. APS did not provide the trial court with evidence that an 

independent medical examination or functional capacity 

evaluation would provide relevant, discoverable evidence. ............... 13 

B. While there may be a nexus between Plaintiff’s injuries and an 

independent medical examination, this prong alone is 

insufficient to support a finding that the trial court abused its 

discretion. ............................................................................................ 14 
 iii

C. APS must seek to obtain the desired information through less 

intrusive forms of discovery before resorting to a compelled 

medical examination.......................................................................... 155 

1. Compelled medical examinations intrude on the injured 

party’s privacy. .......................................................................... 18 

2. APS did not provide the trial court with any indication of 

what it was looking for that could not be determined 

through less intrusive discovery. .............................................. 20 

3. Good cause is always required before a court orders an 

independent medical examination. ........................................... 22 

D. APS failed at the trial court level, as well as in their writ for 

mandamus, to show they are entitled to a functional capacity 

exam and the trial court’s denial of such was an abuse of 

discretion ............................................................................................. 26 

E. Even Ten Hagen—the sole case cited by APS in its motion to 

compel—supports the trial court’s decision. ..................................... 267 

F. Any arguments made regarding Plaintiff’s economist Kenneth 

McCoin are irrelevant and misguided. .............................................. 299 

CONCLUSION ............................................................................................................. 31 

PRAYER FOR RELIEF .................................................................................................. 31 

CERTIFICATE OF SERVICE .......................................................................................... 33 

CERTIFICATE OF COMPLIANCE ................................................................................344 

APPENDIX .................................................................................................................. 35 
 iv

INDEX OF AUTHORITIES

CASES PAGE(S) 

Acosta v. Tenneco Oil Co., 

 913 F.2d 205 (5th Cir. 1990) ......................................................................... 25 

Coates v. Whittington, 

 758 S.W.2d 749 (Tex. 1988) ..................................................................passim 

CSR Ltd. v. Link, 

 925 S.W.2d 591 (Tex. 1996) ........................................................................... 6 

Diaz v. Con-Way Truckload, Inc., 

 279 F.R.D. 412 (S.D. Tex. 2012) .................................................................. 24 

Gavin v. Hilton Worldwide, Inc., 

 291 F.R.D. 161 (N.D. Cal. 2013) .................................................................. 23 

Ginsberg v. Fifth Court of Appeals, 

 686 S.W.2d 105 (Tex. 1985) ........................................................................... 6 

Hardy v. Riser, 

 309 F. Supp. 1234 (N.D. Miss. 1970) ........................................................... 12 

IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp., 

 938 S.W.2d 440 (Tex. 1997) ..................................................................... 7, 20 

In re Bell Hot Shot Co., 

No. 14–13–00877–CV, 2014 WL 260116 

(Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig. proceeding) 

(mem. op.) .......................................................................................... 16, 18, 24 

In re Buch, 

 05-98-01665-CV, 1998 WL 908843 

 (Tex. App.—Dallas Dec. 31, 1998, no pet.) ............................................ 15, 18 

In re Caballero, 

 36 S.W.3d 143 (Tex. App.—Corpus Christi 2000, orig. 

proceeding) .............................................................................. 9, 11, 14, 16, 25 
 v

In re Cerberus Capital Mgmt., L.P., 

 164 S.W.3d 379 (Tex. 2005) ........................................................................... 7 

In re Click, 

 442 S.W.3d 487 

 (Tex. App.—Corpus Christi 2014, orig. proceeding) .................... 9, 11, 14, 18 

In re Commitment of Hatchell, 

 343 S.W.3d 560 (Tex. App.—Beaumont 2011, orig. proceeding) ................. 8 

In re CSX Corp., 

 124 S.W.3d 149 (Tex. 2003) ........................................................................... 6 

In re Dallas Group of Am., Inc., 

 434 S.W.3d 647 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ............... 6, 8 

In re H.E.B. Grocery Co., L.P., 

 13-15-00254-CV, 2015 WL 3637775 

(Tex. App.—Corpus Christi June 11, 2015, no pet.) ............... 6, 7, 8, 9, 18, 20 

In re Lambdin, 

 No. 07–03–0328–CV, 2003 WL 21981975 

 (Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding) .............................. 12 

In re Le, 

 335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, no pet.) .......... 7, 20 

In re Odyssey Healthcare, Inc., 

 310 S.W.3d 419 (Tex. 2010) ........................................................................... 6 

In re Prudential Ins. Co. of Am., 

 148 S.W.3d 124 (Tex. 2004) ........................................................................... 6 

In re Sanders, 

 153 S.W.3d 54 (Tex. 2004) ............................................................................. 7 

In re Ten Hagen Excavating, Inc., 

 435 S.W.3d 859 (Tex. App.—Dallas 2014, no pet.) ..............................passim 
 vi

In re Thuesen, 

 14-13-00174-CV, 2013 WL 1461790 

 (Tex. App.—Houston [14th Dist.] Apr. 11, 2013, no pet.) ................. 7, 17, 24 

In re Transwestern Publ’g Co., 

96 S.W.3d 501 

(Tex. App.—Fort Worth 2002, orig. proceeding) ......................... 9, 11, 14, 22 

Marroni v. Matey, 

 82 F.R.D. 371 (E.D. Pa. 1979) ...................................................................... 16 

Moore v. Calavar Corp., 

 142 F.R.D. 134 (W.D. La. 1992) ................................................................... 25 

Sadler v. Acker, 

 263 F.R.D. 333 (M.D. La. 2009) ................................................................... 23 

Schlagenhauf v. Holder, 

 379 U.S. 104 (1964)................................................................................passim 

Sherwood Lane Associates v. O'Neill, 

782 S.W.2d 942 (Tex. App.—Houston [1st Dist.] 1990, no writ) ................ 23 

Stinchcomb v. United States, 

 132 F.R.D. 29 (E.D. Pa. 1990) ...................................................................... 12 

Storms v. Lowe’s Home Centers, Inc., 

 211 F.R.D. 296 (W.D. Va. 2002) ............................................................ 29, 30 

Teche Lines v. Boyette, 

 111 F.2d 579 (5th Cir. Miss. 1940) ............................................................... 12 

Walker v. Packer, 

 827 S.W.2d 833 (Tex. 1992) ........................................................................... 6 

STATUTES AND RULES

Tex. R. App. P. 52.3(k)(1) ....................................................................................... 20 

Tex. R. Civ. P. 204.1 .................................................................................. 1, 8, 10, 11 
 vii

ISSUES PRESENTED

1. Good cause is required to compel an independent medical examination. To 

show good cause, the movant must seek the desired information through less 

intrusive means before compelling an examination. Plaintiff disclosed his 

medical records, a list of treating physicians, and reports from expert 

witnesses; however, APS did not show any good cause and had not deposed 

Plaintiff’s treating physicians or any experts, or provided any evidence to the 

trial court that it exhausted less intrusive means of discovery before moving 

to compel. Was it within the trial court’s broad discretion to deny APS’s 

motion to compel both an independent medical exam and a functional 

capacity exam?

2. Was APS legally entitled to compel Hewitt to submit to a functional 

capacity exam?
 1

INTRODUCTION

Near the inception of discovery and before any depositions were taken, 

Relator, Advanced Powder Solutions, Inc. (“APS”) demanded that Real Party in 

Interest, Tremaine Hewitt, undergo both an independent medical examination as 

well as a functional capacity evaluation by two of APS’s experts. Because courts 

protect an individual’s right to privacy, before a party can be compelled to undergo 

a medical examination—or in this case, both a medical examination and a 

functional capacity evaluation—the party requesting that examination must show 

“good cause.” Tex. R. Civ. P. 204.1; Coates v. Whittington, 758 S.W.2d 749, 753 

(Tex. 1988). In order to satisfy the good cause standard, a party seeking the 

examination must show, among other things, that the information sought cannot be 

obtained through means that are less intrusive than the compelled examination. 

Coates, 758 S.W.2d at 753. APS did not attempt to show that it could not obtain 

information through less intrusive means, but rather, argued to the trial court as it 

does to this court, that good cause exists because “[t]here is nothing equitable 

about allowing one party’s expert access to evidence while denying that 

opportunity to the other party.” Pet. for Mandamus, 4. This argument misses the 

point entirely, and fails to show any aspect of good cause. 

In order for APS to prevail here, it must establish that the trial court’s 

decision to deny its motion to compel was an abuse of discretion. This is a heavy 
 2

burden that APS cannot meet, especially in light of the fact that APS’s failure to 

show good cause and only evidence to the trial court was a four-page motion citing 

only a single, non-binding case from the Dallas Court of Appeals. MR67-70. 

Additionally, APS’s arguments below and on mandamus are simply 

conclusory allegations by the attorney. APS provides no evidence of why its 

experts cannot opine without an independent medical examination and a functional 

capacity exam—as most defense experts do. Thus, the trial court’s decision to deny 

APS’s motion to compel was proper because APS provided the trial court with no 

evidence to support its motion, and undeniably failed to show good cause. Further, 

APS has failed to provide case law showing that it was entitled to compel a 

functional capacity exam. 
 3

STATEMENT OF FACTS

This case arises from a serious accident which occurred on August 28, 2013, 

wherein Tremaine Hewitt was working as an employee of APS. App. 1: Pl.’s First 

Am. Pet., ¶ 9. Hewitt was required to stand on a ladder in order to pour magnesium 

powder into a reactor. Id. While Hewitt was on the ladder, another APS employee 

manipulated the reactor valves, which in turn caused a magnesium flash, knocking 

Hewitt off the ladder and setting him on fire. Id. Hewitt was burned severely, 

sustaining second and third degree burns over more than 22% of his body, as well 

as orthopedic injuries. Id.; see also MR58-63 (photographs of Hewitt’s burn 

injuries). Because of his injuries, Hewitt was eventually life-flighted from the 

hospital to a burn unit, and underwent multiple surgeries while spending twentynine days in the hospital. Id. 

On March 20, 2015, Hewitt disclosed to APS that, among others, Angel 

Roman, M.D. and Kenneth McCoin, Ph.D. would testify as experts in this matter. 

MR7-8. Included in this disclosure was a 47-page report from Dr. Roman. MR11-

63. Dr. Roman’s report also contained a detailed 12-page summary of Hewitt’s 

medical records. MR18-30. In the same disclosure, Hewitt also provided Mr. 

McCoin’s report, an economist. MR64-66. McCoin’s report dealt only with 

Hewitt’s earning capacity (both past and future). MR64. Nowhere in McCoin’s 
 4

report did McCoin state that his observations or conclusions were based on an inperson examination of Hewitt. MR64-66. 

Despite Hewitt’s disclosures and without deposing any treating physicians or 

either expert, on May 7, 2015, APS moved to submit Hewitt to both an 

independent medical examination as well as a functional capacity evaluation. 

MR67-68. Mr. Hewitt received treatment from numerous healthcare providers as a 

result of his injuries. Before attempting to depose any of these doctors to ascertain 

information concerning Mr. Hewitt’s medical condition, APS filed a motion with 

the trial court demanding that Mr. Hewitt undergo an independent medical 

examination (“IME”) as well as a functional capacity evaluation (“FCE”). 

Additionally, to date, APS has not deposed Dr. Roman nor Mr. McCoin. 

Thus, Hewitt objected to APS’s requested IME and the FCE, because APS did not 

seek less-intrusive means of obtaining information about Hewitt’s medical 

condition prior to seeking to compel Hewitt to submit to these examinations as is 

required by Texas law. Further, Hewitt argued APS failed to show it was legally 

entitled to an FCE. 

Given, among other things, the early state of the case, the trial court had no 

indication that APS had complied with its obligation to first seek less intrusive 

means of obtaining medical information. Thus, the trial court reviewed the request 
 5

for both an IME and a FCE and denied the requests. MR190. APS then filed the 

pending petition for a writ of mandamus. 

It should be noted that in its writ for mandamus review, APS addresses 

issues surrounding alleged entitlement to an IME. APS fails to fully address that it 

moved the trial court for an IME and FCE. APS does not provide any case law to 

support that it is legally entitled to an FCE, because it cannot. APS cannot single 

out its request for the IME alone for analysis of an abuse of discretion. These were 

not separate motions, but a single request coupling both exams together as 

“physical examinations.” MR67-70. This request, which was denied is the basis of 

this mandamus proceeding. 
 6

ARGUMENT

I. Applicable Legal Standards 

A. Mandamus 

“Mandamus relief is available when a trial court has committed an abuse of 

its discretion for which there is no adequate remedy by appeal.” In re Dallas 

Group of Am., Inc., 434 S.W.3d 647, 650 (Tex. App.—Houston [1st Dist.] 2014, 

no pet.) (citing In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010)). 

See also In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863 (Tex. App.—

Dallas 2014, no pet.) (citing CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996)) 

(“Mandamus is an extraordinary remedy that is available only in limited 

circumstances.”); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (same); In 

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (same); In re 

H.E.B. Grocery Co., L.P., 13-15-00254-CV, 2015 WL 3637775, at *1 (Tex. 

App.—Corpus Christi June 11, 2015, no pet.) (same). Additionally, the “heavy 

burden” lies with the relator to establish both that the trial court abused its 

discretion and that there is no adequate remedy by appeal. In re CSX Corp., 124 

S.W.3d 149, 151 (Tex. 2003). 

B. Abuse of Discretion 

“The scope of discovery largely rests within the discretion of the trial court.” 

Ten Hagen, 435 S.W.3d at 865 (citing Ginsberg v. Fifth Court of Appeals, 686 
 7

S.W.2d 105, 108 (Tex. 1985)). Thus, a trial court only “clearly abuses its discretion 

if it reaches a decision that is so arbitrary and unreasonable that it amounts to a 

clear and prejudicial error of law, or if it clearly fails to analyze the law correctly 

or apply the law correctly to the facts.” H.E.B. Grocery, 2015 WL 3637775, at *1 

(citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)). See 

also In re Thuesen, 14-13-00174-CV, 2013 WL 1461790, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 11, 2013, no pet.) (same). 

Additionally, “[a] trial court does not abuse its discretion if it bases its 

decision on conflicting evidence and some evidence supports the trial court’s 

decision.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, 

no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 445 

(Tex. 1997)). Thus, “In determining whether the trial court clearly abused its 

discretion, [the reviewing court] may not substitute [its] judgment for that of the 

trial court.” Id. (citing In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004)). See also 

Thuesen, 2013 WL 1461790, at *2 (“When reviewing the trial court’s decision for 

an abuse of discretion, we may not substitute our judgment for that of the trial 

court with respect to the resolution of factual issues or matters committed to the 

trial court’s discretion.”); Ten Hagen, 435 S.W.3d at 865 (“In considering whether 

a trial court has clearly abused its discretion with regard to a discovery order, the 

reviewing court may not substitute its judgment for that of the trial court.”). 
 8

In other words, “Even if the reviewing court would have decided the issue 

differently, it cannot disturb the trial court’s decision unless it is shown to be 

arbitrary and unreasonable.” Walker, 827 S.W.2d at 839–40. Instead, the “relator 

must establish that the trial court could reasonably have reached only one 

decision.” Ten Hagen, 435 S.W.3d at 866. 

C. Compelled Independent Medical Examinations 

“Rule 204.1(c) of the Texas Rules of Civil Procedure does not grant an 

automatic right to obtain a physical or mental examination.”1 Ten Hagen, 435 

S.W.3d at 866. Instead, “there must be greater showing of need to obtain a physical 

or mental examination than to obtain other sorts of discovery.” Id. (citing 

Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)); see also H.E.B. Grocery, 2015 

WL 3637775, at *3 (same). 

Thus, to compel an independent examination, “[t]he party seeking the 

examination must show both (1) good cause and (2) that the mental or physical 

condition of a party is in controversy.” H.E.B. Grocery, 2015 WL 3637775, at *2 

(citing Tex. R. Civ. P. 204.1(c)(1); Coates, 758 S.W.2d at 752; Ten Hagen, 435 

S.W.3d at 866; In re Dallas Group, 434 S.W.3d at 651; In re Commitment of 

Hatchell, 343 S.W.3d 560, 562-63 (Tex. App.—Beaumont 2011, orig. 

proceeding)). “These requirements may not be met with ‘conclusory allegations’ in 

 1

 Clearly APS’s contention that motions to compel a physical examination are routine is 

erroneous and misleading. See Pet. for Mandamus, 4. 
 9

the movant’s pleadings or by “mere relevance to the case.” Id. (citing Coates, 758 

S.W.2d at 751; In re Click, 442 S.W.3d 487, 491 (Tex. App.—Corpus Christi 

2014, orig. proceeding); In re Transwestern Publ’g Co., 96 S.W.3d 501, 505 (Tex. 

App.—Fort Worth 2002, orig. proceeding)). 

“The ‘good cause’ element requires a balancing of the competing interests of 

the party’s right of privacy and the movant’s right to a fair trial.” H.E.B. Grocery, 

2015 WL 3637775, at *3 (citing Coates, 758 S.W.2d at 753; In re Click, 442 

S.W.3d at 491). Coates—the leading Texas Supreme Court opinion on this issue—

lays forth the following three prongs that must be satisfied to show good cause: (1) 

the examination is relevant to issues that are genuinely in controversy in the case 

and the examination would produce, or would likely lead to, relevant evidence; (2) 

a reasonable nexus exists between the condition in controversy and the 

examination sought; and (3) it is not possible to obtain the desired information 

through means that are less intrusive than a compelled examination. Coates, 758 

S.W.2d at 751. See also In re Transwestern Publ’g, 96 S.W.3d at 505; In re 

Caballero, 36 S.W.3d 143, 144 (Tex. App.—Corpus Christi 2000, orig. 

proceeding). Thus, “the ‘good-cause requirement is not a mere formality, but is a 

plainly expressed limitation on the use of that Rule.’” Ten Hagen, 435 S.W.3d at 

868 (quoting Schlagenhauf, 379 U.S. at 117-18). 
 10

While Texas case law is somewhat sparse when it comes to Rule 204.1, 

federal cases provide helpful analysis. Ten Hagen, 435 S.W.3d at 868 n.1 (citing 

Coates, 758 S.W.2d at 751) (“The Texas Supreme Court has concluded that 

because the Texas rule governing mental and physical examinations was originally 

derived from Rule 35 of the Federal Rules of Civil Procedure, federal courts’ 

construction of Rule 35 is helpful to an analysis of the Texas rule.”). Thus, federal 

decisions will be referenced throughout this response. 

II. The trial court properly exercised its discretion when it denied APS’s 

motion to compel both an independent medical examination and a 

functional capacity evaluation. 

The central issue on mandamus is whether the trial court abused its 

discretion when it denied APS’s motion to compel examination requested by APS 

which included an IME coupled with a FCE. Plaintiff argued below, and does so 

again, that an IME should be denied because APS has failed to show good cause, 

and that APS was not entitled to a FCE. Thus, Plaintiff will not address whether his 

injuries are in controversy. But as this Court is aware, even if a party’s injuries are 

in controversy, this alone is not “enough to compel a physical examination under 

Rule 204.1. Rule 204.1 also requires that the trial court find ‘good cause’ for the 

examination.” Ten Hagen, 435 S.W.3d at 867 (citing Tex. R. Civ. P. 204.1(c)). 

“The ‘in controversy’ and ‘good cause’ requirements imposed by Rule 204.1 

are the tools courts use in balancing the respective rights of the parties to privacy 
 11

and to a fair trial.” Id. But “these two requirements are not met ‘by mere 

conclusory allegations of the pleadings-nor by mere relevance to the case.’” Id. 

(quoting Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18. 

This is precisely where APS failed. While whether or not Plaintiff’s injuries 

are “in controversy” has not been contested, APS failed to meet its “affirmative 

burden” to prove to the Trial court that “good cause” exists to perform not only 

one, but two independent examinations. See Tex. R. Civ. P. 204.1(c); Coates, 758 

S.W.2d at 751. “In the absence of an affirmative showing of both prongs of the 

test, a trial court may not order an examination.” Ten Hagen, 435 S.W.3d at 866 

(citing Coates, 758 S.W.2d at 751). Thus, the Trial court did not abuse its 

discretion because APS did not make an affirmative showing of “good cause.” 

As mentioned above, the following three prongs must be satisfied to show 

good cause: (1) the examination is relevant to issues that are genuinely in 

controversy in the case and the examination would produce, or would likely lead 

to, relevant evidence; (2) a reasonable nexus exists between the condition in 

controversy and the examination sought; and (3) it is not possible to obtain the 

desired information through means that are less intrusive than a compelled 

examination. Coates, 758 S.W.2d at 751. See also In re Transwestern Publ’g, 96 

S.W.3d at 505; In re Caballero, 36 S.W.3d at 144; In re Click, 442 S.W.3d at 491. 
 12

Here, while APS never showed to the trial court what relevant evidence 

would come from the examinations sought, more importantly—and dispositive 

both here and to the Trial court—is the fact that APS has not shown the court it is 

impossible to obtain the desired information through less intrusive means. In fact, 

APS had not deposed any of Plaintiff’s treating physicians or experts. This fact 

alone establishes that the trial court did not abuse its discretion. 

But even if this Court disagrees, the trial court still has the discretion to deny 

an independent medical examination even when good cause is established. See 

Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990) (“Even when good 

cause is shown, whether to order a proposed examination is committed to the 

discretion of the court.”); Hardy v. Riser, 309 F. Supp. 1234, 1241 (N.D. Miss. 

1970) (citing Teche Lines v. Boyette, 111 F.2d 579 (5th Cir. Miss. 1940)) (“Even 

when the ‘good cause’ and ‘in controversy’ requirements are met, it is still in the 

sound discretion of the trial court whether to order the examination.”). 

Even Ten Hagen—the sole case APS relied on in its motion to compel—

acknowledges that “the ordinary meaning of the language of Rule 204.1 suggests 

that the trial court is vested with discretion in determining whether to grant a 

physical or mental examination under Rule 204.1.” Ten Hagen, 435 S.W.3d at 866. 

See also In re Lambdin, No. 07–03–0328–CV, 2003 WL 21981975, at *4 (Tex. 

App.—Amarillo Aug. 20, 2003, orig. proceeding) (“It is logical to construe the 
 13

word ‘may’ as vesting the trial court with some range of permissiveness or 

discretion.”). 

Thus, APS made no persuasive argument to the Trial court—and no 

persuasive argument here—to justify an independent medical examination, let 

alone establish that the trial court abused its discretion. 

A. APS did not provide the trial court with evidence that an 

independent medical examination or functional capacity 

evaluation would provide relevant, discoverable evidence. 

APS never once showed the trial court what relevant evidence it hoped to 

gain from forcing Plaintiff to submit to an IME or FCE. In fact, the only arguments 

APS made were (1) “As the examinations sought by Defendant are not intrusive, 

invasive, or unnecessarily physically uncomfortable, they should be allowed,” and 

(2) “To hold otherwise would deprive Defendant the right to explore and develop 

evidence that supports theories that contradict the theories espoused by Plaintiff’s 

retained experts and thus, deprive Defendant the right to a fair trial.” MR70. 

These statements are nothing more than “mere conclusory allegations” and 

do not establish this first prong. Ten Hagen, 435 S.W.3d at 867 (quoting Coates, 

758 S.W.2d at 751) (holding that good cause is “not met ‘by mere conclusory 

allegations of the pleadings-nor by mere relevance to the case.’”); see also 

Schlagenhauf, 379 U.S. at 117-18. Thus, the trial court was well within its 

discretion to deny APS’s motion to compel. 
 14

But even if this Court believes that APS satisfied the first prong, the trial 

court still did not abuse its discretion because “[a] court is not required or even 

permitted to order an examination simply because it finds the examination will 

produce relevant evidence.” Ten Hagen, 435 S.W.3d at 869 (citing Schlagenhauf, 

379 U.S. at 117-18). Additionally, “[t]he ‘good cause’ requirement of Rule 204.1 

would be meaningless if mere relevance alone sufficed to establish good cause.” 

Id. (citing Schlagenhauf, 379 U.S. at 117-18). 

B. While there may be a nexus between Plaintiff’s injuries and an 

independent medical examination, this prong alone is insufficient 

to support a finding that the trial court abused its discretion. 

Similarly, APS’s nexus arguments are equally illogical. For example, APS 

states that “it is no surprise that Plaintiff” did not challenge the relevant evidence 

prong and the nexus prong. Pet. for Mandamus, 6-7. This statement misses the 

point. It does not matter whether or not APS can prove relevant evidence or nexus 

if it cannot show it could not obtain desired information through less intrusive 

forms of discovery. See Coates, 758 S.W.2d at 751 (all three prongs required to 

show good cause); In re Transwestern Publ’g Co., 96 S.W.3d at 505 (same); In re 

Caballero, 36 S.W.3d at 144 (same); In re Click, 442 S.W.3d at 491 (same). 

To put it simply, the test for good cause isn’t a 1 out of 3 test, it isn’t even a 

2 out of 3 test. To show good cause, APS had to show the trial court that it satisfied 
 15

all three prongs. It didn’t do so in its motion to compel, and it didn’t do so here on 

mandamus. Thus, the trial court was within its discretion to deny APS’s motion. 

C. APS must seek to obtain the desired information through less 

intrusive forms of discovery before resorting to a compelled 

medical examination. 

Plaintiff argued in his response to APS’s motion to compel that APS must 

seek the desired information through less intrusive forms of discovery before the 

trial court could grant APS’s motion. MR140 (“The same information sought by 

Defendant in its proposed examinations can be obtained through less intrusive 

means,” and “Defendant’s experts are free to review the testing and medical 

records utilized by Plaintiff’s physicians in forming their opinions and diagnoses 

and conduct their own interpretations.”). 

Exhausting less intrusive discovery methods to obtain the desired 

information is a well-established prong of the good cause analysis. “The final 

element of good cause requires that it not be possible to obtain the information 

sought by less intrusive means and that absent the examination the relator will not 

be able to obtain a fair trial.” Ten Hagen, 435 S.W.3d at 869 (citing In re Buch, 05-

98-01665-CV, 1998 WL 908843, at *3 (Tex. App.—Dallas Dec. 31, 1998, no pet.). 

See also MR69 (APS acknowledging it must show the trial court that it is not 

possible to obtain the same information through less intrusive means). 
 16

Additionally, Ten Hagen—the only case APS cited to in its motion to 

compel—lists numerous other discovery methods that Texas courts have identified 

that are less intrusive means of seeking the desired information. For example, 

“deposing the opposing party’s doctors and attempting to obtain copies of medical 

records.” 435 S.W.3d at 870 (citing In re Caballero, 36 S.W.3d at 145). The 

movant may also rely “on existing expert witness reports already filed in the case,” 

as most defense experts do. Id. (citing In re Bell Hot Shot Co., No. 14–13–00877–

CV, 2014 WL 260116, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig. 

proceeding) (mem. op.)). 

Likewise, in Marroni v. Matey, plaintiffs sought an independent examination 

of the defendant. 82 F.R.D. 371, 372 (E.D. Pa. 1979). The court noted that “[o]ne 

factor that is relevant to the determination of ‘good cause’ is the possibility of 

obtaining the desired information by other means.” Id. (citing Schlagenhauf, 379 

U.S. at 118). The court denied the plaintiffs’ request for independent examination 

because the “[p]laintiffs have made no showing that the information they seek 

cannot be obtained by other discovery techniques.” Id. The court went on to state 

they it must deny the motion “[u]ntil other methods are attempted,” and that the 

defendant’s “privacy interests require, at a minimum, that less intrusive methods of 

discovery first be explored.” Id. 
 17

Similarly, in In re Thuesen, the court acknowledged that the relator was 

“entitled to seek discovery from their identified medical providers.” 2013 WL 

1461790, at *3. However, the court held that the relator “ha[d] not established that 

discovery from the identified medical professional will be insufficient,” and that 

“[t]he privacy interests of the real party plaintiffs require[d] relator to exhaust less 

intrusive means of discovery before seeking compulsory mental examinations.” Id. 

(citing Coates, 758 S.W.2d at 753). 

Here, in light of the well-settled case law in this area, APS understandably 

failed to show the trial court that it exhausted less intrusive discovery measures 

because APS had not deposed Plaintiff’s treating physicians, and has still not 

deposed Plaintiff’s experts. Additionally, APS gave no reason why the medical 

records and expert reports provided are inadequate to obtain the information APS 

sought. Thus, it was within the trial court’s discretion to deny APS’s motion to 

compel. 

Moreover, the trial court’s decision was within its discretion for the 

following additional three reasons: (1) Compelled medical examinations intrude on 

the injured party’s privacy; (2) APS did not provide the trial court with any 

indication of what it was looking for that could not be determined through less 

intrusive discovery; and (3) good cause is always required before a court orders an 

independent medical examination. 
 18

1. Compelled medical examinations intrude on the injured party’s 

privacy. 

Plaintiff’s right of privacy must be balanced with APS’s desire for additional 

discovery. Texas courts have repeatedly recognized this balance. “Good cause 

requires a balancing of the competing interests of the party’s right of privacy and 

the movant’s right to a fair trial.” In re Bell Hot Shot Co., 2014 WL 260116, at *2 

(citing Coates, 758 S.W.2d at 753); see also Ten Hagen, 435 S.W.3d at 866-67) 

(quoting In re Buch, 1998 WL 908843, at *3) (“‘When a party’s mental or physical 

condition is implicated, the court must balance the party’s right of privacy and the 

movant’s right to a fair trial.’”); H.E.B. Grocery, 2015 WL 3637775, at *3 (citing 

Coates, 758 S.W.2d at 753; In re Click, 442 S.W.3d at 491) (same). 

Despite the well-settled fact that independent medical examinations are 

intrusive, in its motion to compel, APS makes the erroneous argument that “[a]s 

the examinations sought by Defendant are not intrusive, invasive, or unnecessarily 

physically uncomfortable, they should be allowed.” MR70. APS continues this 

erroneous argument in its petition for mandamus by stating that “it is well settled 

that where the intended examination is not intrusive, invasive or unnecessarily 

physically uncomfortable, parties are permitted to explore matters not covered by 

the opposing party’s examinations, make their own observations, and attempt to 

discover facts that may contradict the opinions of the opposing party’s expert 

witnesses.” Pet. for Mandamus, P.8. 
 19

The only case APS uses to support this contention is once again Ten Hagen. 

See MR69-70 (APS relying on Ten Hagen to erroneously argue that the requested 

examinations are not intrusive). While Ten Hagen does state that “where the 

intended examination is not intrusive, invasive or unnecessarily physically 

uncomfortable, parties are permitted to explore matters not covered by the 

opposing party’s examinations, make their own observations, and attempt to 

discover facts that may contradict the opinions of the opposing party’s expert 

witnesses,” 435 S.W.3d at 870, as mentioned above, the types of examinations 

requested by APS are intrusive under Texas law. In fact, Ten Hagen states that “an 

order requiring a medical examination is an intrusive order.” 435 S.W.3d at 866. 

Thus, the one sentence in Ten Hagen that APS relies on is irrelevant and in no way 

establishes that the trial court abused its discretion. 

Furthermore, APS is requesting not only an IME, but also a functional 

capacity evaluation which necessarily goes beyond the examination typically 

included with an IME. A functional capacity evaluation requires an individual to 

submit to hours or days of physical testing and strenuous activities, almost 

exclusively for purposes of Workers’ Compensation disability determination. APS 

has failed to give any explanation at all as to why Hewitt, an employee of a nonsubscriber to Texas Workers’ Compensation, should be compelled to submit to a 

FCE. App. 1: Pl.’s First Am. Pet., ¶ 9 
 20

Additionally, even if there was a conflict in the law in Texas about whether 

an independent medical examination was intrusive—which there is not—this Court 

has held that “[a] trial court does not abuse its discretion if it bases its decision on 

conflicting evidence and some evidence supports the trial court’s decision.” In re 

Le, 335 S.W.3d at 813 (citing IKB Indus., 938 S.W.2d at 445). 

In sum, Texas law establishes that independent medical examinations are an 

invasion of privacy. But even if this Court agrees with APS’s argument that the 

examinations sought are somehow not invasive, at a minimum, the trial court did 

not abuse its discretion because of the conflict in the law. 

2. APS did not provide the trial court with any indication of what it 

was looking for that could not be determined through less 

intrusive discovery. 

Next, APS did not provide the trial court with any details regarding what 

information could not be obtained by methods other than an independent medical 

examination. The burden is on APS to establish the record to both the trial court 

and to this court on mandamus. See H.E.B. Grocery, 2015 WL 3637775, at *3 

(citing Tex. R. App. P. 52.3(k)(1), 52.7(a); Walker, 827 S.W.2d at 837). APS failed 

to carry its burden. 

For example, APS only made the following arguments relating—to use the 

word loosely—to why its experts needed to examine Plaintiff: 

 APS’s experts “would be precluded from examining matters not 

covered by Plaintiff’s experts.” MR180. 
 21

 Plaintiff’s experts “would have a benefit not afforded 

Defendant’s retained expert and that such benefit would bolster 

his retained expert’s reliability as compared to any 

controverting expert designated by Defendant.” Pet. for 

Mandamus, 3-4. 

 The IME “is needed for Defendant to fairly defend itself against 

damage claims that Plaintiff intends to prove through its own 

medical expert who has access to a physical examination.” Pet. 

for Mandamus, 4. 

 Dr. Roman will look more credible “[b]ecause—as made clear 

in his expert disclosure—Plaintiff’s medical expert will be 

telling the jury that his opinions are based upon his own 

medical examination of Plaintiff—something Defendant’s 

expert will not be able to do if the order is allowed to stand.” 

Pet. for Mandamus, 5. 

 And “that ‘the information’ sought is not simply the opinions of 

Plaintiff’s treating physicians, or even his own retained medical 

expert. Instead, “the information” sought—needed, in fact—is a 

first-hand medical examination upon which Defendant’s 

retained expert can base his opinions—just like Plaintiff’s 

retained expert’s intends to do.” Pet. for Mandamus, 7. 

These arguments fail for multiple reasons. First, these are nothing more than 

conclusory allegations, which are not enough to establish good cause. Ten Hagen, 

435 S.W.3d at 867 (“these two requirements are not met ‘by mere conclusory 

allegations of the pleadings-nor by mere relevance to the case.’”) Id. (quoting 

Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18. Second, 

Dr. Roman’s report was not simply based on his physical examination of Mr. 

Hewitt. Instead, Dr. Roman performed a comprehensive review of Mr. Hewitt’s 

medical records and also used his own training, knowledge, and expertise as it 

relates to reviewing the medical records. See MR18-30. Third, APS’s own experts 
 22

provide no affidavits or any other explanation as to why they cannot base their 

opinions on the medical records provided—as most defense experts do. Instead, 

APS merely states for the court that basically, it’s just not fair. 

Thus, it was within the trial court’s discretion to deny APS’s motion to 

compel as APS provided the trial court with nothing more than conclusory 

allegations. 

3. Good cause is always required before a court orders an 

independent medical examination. 

Finally, APS’s failure to establish that it sought less intrusive discovery 

before seeking to compel an independent examination is fatal because good cause 

is always required under Rule 204.1. APS argued in its motion to compel that “[a] 

Plaintiff in a negligence action who claims physical injury as a result of a 

Defendant’s negligence places his physical injury clearly in controversy and 

provides the Defendant with good cause to determine the existence and extent of 

such asserted injury simply by seeking recover for the alleged physical injury.” 

MR68. This is far from true. 

For example, in In re Transwestern Pub. Co., 96 S.W.3d at 506, the court 

held that the designation of an expert was insufficient to meet the good cause 

requirement under Rule 204.1. Similarly, in Ten Hagen, 435 S.W.3d at 862-63—

the case APS relies on to make this erroneous argument—the plaintiff designated 

his treating physician as a medical expert to testify at trial. Despite this, the court 
 23

held that the clear language of Rule 204.1 required the movant to also show good 

cause under the three-part test. Id. at 868-70. 

Additionally, in Sherwood Lane Associates v. O'Neill, 782 S.W.2d 942, 943 

(Tex. App.—Houston [1st Dist.] 1990, no writ) the court allowed an independent 

medical examination precisely because defendants were unable to obtain all of the 

information necessary through less intrusive means, thus satisfying the third prong. 

Specifically, the minor plaintiff in Sherwood was being treated by two separate 

psychologists, and during the discovery period, the defendants were unable to 

obtain the treatment notes of one of the plaintiff’s treating physicians and 

designated experts. The court in Sherwood was clear that the opinion was based on 

the “facts and circumstances” of that case. Id. at 945. 

The federal courts2

 also recognize that good cause may exist in the following 

circumstances. First, good cause may exist when the movant can prove that 

deposing other witnesses would not provide the information sought. Gavin v. 

Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013) (holding that good 

cause existed when defendant could not “depose any of [plaintiff’s] treaters in 

order to ascertain her continuing emotional distress”). Second, good cause may 

exist when there is a substantial time between the examination and trial. Sadler v. 

 2

 As mentioned previously, Texas courts look to the federal courts analyzing Rule 35 because 

Rule 35 contains the same “good cause” requirement as Rule 2014.1. See Ten Hagen, 435 

S.W.3d at 868. 
 24

Acker, 263 F.R.D. 333, 336 (M.D. La. 2009) (holding good cause may be shown 

when a “‘substantial time lag’ will occur between the initial examinations . . . and 

the time of trial”). Third, good cause may exist when the party’s health changes 

significantly. Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 424 (S.D. Tex. 

2012) (holding that when the plaintiff experienced “significant changed 

circumstance [in health] constituting sufficient ‘good cause’ to warrant an 

independent eye examination”). 

In contrast, APS’s motion to compel is much more similar to the many cases 

where courts have held good cause did not exist. For example, in In re Bell Hot 

Shot Co., a plaintiff submitted to an evaluation related to a brain injury. 2014 WL 

260116, at *1. The evaluation indicated that he was not impaired as a result of the 

accident. Id. Yet, the defendant requested that the plaintiff be compelled to 

undergo another medical examination. Id. The court found no abuse of discretion 

in the trial court’s denial of another exam. Id. at *2. Specifically, looking at the 

third element in the Coates analysis, the court found that there was already an 

exam that undermined the plaintiff’s claim that he suffers from mental injuries 

such that there was not good cause for another exam. Id. 

Additionally, in Thuesen, the court held that there was no good cause when 

the relator did “not establish that discovery from the identified medical 

professional will be insufficient,” and the relator was required “to exhaust less 
 25

intrusive means of discovery before seeking compulsory mental examinations.” 

2013 WL 1461790, at *3. See also Caballero, 36 S.W.3d at 143 (no good cause 

when movant did not depose physicians, obtain copies of medical records, and 

failed to articulate why the further examination would be relevant); Moore v. 

Calavar Corp., 142 F.R.D. 134, 135-36 (W.D. La. 1992) (holding that defendant 

failed to show good cause for second examination when no allegations “of a 

change in the plaintiff’s complaints or in the clinical findings,” and that while the 

defendant “is equally entitled to be well prepared to address the issue of the 

plaintiff’s physical condition and need for surgery at trial, there had been no 

showing to date that a second physical examination . . . would shed any clarifying 

light upon the dispute”); Acosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir. 

1990) (holding that an independent examination was improper because the 

defendant “already ha[d] the information it seeks . . . without a repetitive 

examination” when the defendant was supplied with a copy of the test performed 

by plaintiff’s expert, plaintiff’s expert’s report, and defendant had already deposed 

plaintiff’s expert as well as plaintiff”). 

APS provided the trial court with no evidence to suggest that even one of 

these situations is present in this case. In fact, as noted above, many courts have 

repeatedly held that good cause does not exist when the moving party does not 
 26

exhaust less intrusive methods, as APS failed to do here. Thus, it was within the 

trial court’s discretion to deny APS’s motion. 

D. APS failed at the trial court level, as well as in their writ for 

mandamus, to show they are entitled to a functional capacity 

exam and the trial court’s denial of such was an abuse of 

discretion. 

As noted above, the basis of this mandamus proceeding is APS’s request for 

an IME (by a Doctor retained by the Defendant) coupled with an FCE. It should be 

noted that in their writ for mandamus, APS fails to fully address that it moved the 

trial court for an IME and a FCE. Notably, the Courts do not force Plaintiffs to 

undergo FCE’s. APS only addresses issues as to an IME in the appeal, but does 

not provide case law showing that it is legally entitled to compel a FCE. In fact, at 

the trial court level the only support provided was a 2011 online article titled “fact 

sheet” of “occupational therapy’s role in functional capacity evaluation.” MR 184-

85. APS fails throughout its motion to cite any good cause for either examination 

other than the conclusory allegations of their attorney. 

Further, APS cannot single out its request for the IME alone for analysis of 

an abuse of discretion standard for this mandamus proceeding. This is because the 

trial court denied APS’s request for “physical examinations” which included not 

only an IME but also an FCE. MR67-70. APS did not file separate motions 

requesting each of these tests but a single request coupling both exams together as 

“physical examinations.” Id. This request, which was denied is the basis of this 
 27

mandamus proceeding. The trial Court did not abuse it’s discretion for such an 

overbroad and intrusive examination, without any showing of good cause or the 

slightest attempt to obtain the information from less intrusive means prior to 

requesting the Court to compel. 

Surely, APS’s failure to address half of the relief requested made the basis of 

this mandamus proceeding cannot be found to be a sufficient showing of an abuse 

of discretion. Simply put, APS cannot isolate individual parts of its single request 

made for multiple examinations. Silence as to half of APS’s request for an 

intrusive FCE cannot be held as sufficient in showing an abuse of discretion. 

As APS has failed to fully detail that they were legally entitled to a FCE, and 

that the trial court abused its discretion in denying “physical examinations” 

requested, which included the requested FCE, the Court should find that APS has 

failed to meet their heavy burden showing an abuse of discretion has occurred. 

E. Even Ten Hagen—the sole case cited by APS in its motion to 

compel—supports the trial court’s decision. 

As noted repeatedly in this response, APS only relied on the Ten Hagen case 

in its motion to compel. MR67-70. However, Ten Hagen is easily distinguishable. 

For example, in Ten Hagen, the court was provided with evidence that (1) the 

plaintiff’s expert’s notes and report were incomplete, 435 S.W.3d at 870; (2) the 

defense expert “did not feel confident in relying on [the plaintiff’s expert’s] 

examination,” Id.; (3) the plaintiff’s expert’s report was the first indication of any 
 28

sensory loss despite previous examinations, Id.; (4) the plaintiff’s expert’s opinions 

“did not ‘fit together’ and were not ‘all reasonably considered to be sequella of the 

motor vehicle collision.’” Id. 

Additionally, the court noted that “[t]he facts of this case [were] unique” 

because the defendant “suffered the untimely death of its sole expert witness 

shortly before the close of the discovery period after the treating physician 

submitted a report that suggested even he could not confidently assess the full 

extent of [plaintiff’s] future need for additional treatment.” Id. 

The court also noted that the future damages could not be assessed “by 

simple resort to review of the medical records . . . , examination of the injured 

appendage during a deposition . . . , or further development of [plaintiff’s expert’s] 

opinion during a deposition.” Id. at 870-71. 

Here, none of the evidence listed by the Ten Hagen court were present. APS 

has never provided evidence that Dr. Roman’s report was incomplete, that the 

defense experts were not confident relying on Dr. Roman’s report, that Dr. 

Roman’s report listed new injuries not previously addressed, or that Dr. Roman’s 

report “did not fit together.” In addition, APS has not shown how the numerous 

treating Doctors that have treated Plaintiff were incomplete in their own medical 

records, or that their retained Doctors are not confident in relying on the numerous 

treating physicians records. Likewise, none of APS’s experts have died during this 
 29

case, and APS has provided no evidence or argument that its experts could not 

obtain the necessary information through a review of the medical records of 

treating Doctors or through depositions of the treating Doctors. 

Thus, Ten Hagen—the only case cited by APS in its motion to compel—

supports the trial court’s finding that there was no good cause. 

F. Any arguments made regarding Plaintiff’s economist Kenneth 

McCoin are irrelevant and misguided. 

Finally, the fact that APS references McCoin’s report at all is confusing and 

irrelevant because McCoin is an economist and never examined Plaintiff to create 

his report. Thus, any expert hired by APS should not be required to examine 

Plaintiff to respond to McCoin’s report. 

Additionally, in Storms v. Lowe’s Home Centers, Inc., the court addressed 

this very issue. 211 F.R.D. 296, 296-97 (W.D. Va. 2002). In Storms, the plaintiff 

was injured while shopping and sought damages for lost wages and earning 

capacity among other things. Id. at 296. To substantiate these claims, the plaintiff 

“retained an expert vocational rehabilitation counselor to opine on matters related 

to lost wages and lost earning capacity.” Id. The retained expert interviewed the 

plaintiff and reviewed records to issue a report. Id. at 296-97. In response, Lowe’s 

hired a vocational expert as well. Id. at 297. 

The plaintiff provided Lowe’s expert with a copy of the report, all of the 

relevant medical records, as well as all the other discoverable information 
 30

requested, but declined to be interviewed by the Lowe’s expert. Id. Additionally, at 

the time of the hearing, the plaintiff had not yet been deposed. Id. 

With these facts in mind, the court held that an additional vocational 

examination was not appropriate under Rule 35, but went on to state that the 

defendant had all of the information it needed based on the plaintiff’s ability to 

work in the future. Id. at 298. The court reasoned that an additional examination 

under Rule 35 was not appropriate because the “Plaintiff ha[d] provided Lowe’s 

with a copy of all medical records, a copy of the report from his vocational expert, 

his tax records, and all other discoverable material requested by Lowe’s.” Id. The 

court also reasoned that Lowe’s still had the opportunity to depose the plaintiff and 

at the deposition “counsel [would] be able to examine the plaintiff on all matters 

relating to his functional capacity.” Id. 

Storms is instructive here. In fact, unlike the plaintiff’s expert in Storms, 

here, McCoin did not physically examine or meet with Mr. Hewitt to formulate 

economic opinions. Additionally, APS has been provided with all of the same 

information as the defendant in Storms. Thus, any arguments made by APS 

relating to McCoin’s report are irrelevant at best and instead support the trial 

court’s decision to deny APS’s motion to compel. 
 31

CONCLUSION

The trial court made the right decision when it denied APS’s attempt to 

compel a medical exam. At a minimum, the trial court acted within its broad 

discretion and did not act arbitrarily or unreasonably when it made its factual

determination that APS did not meet its burden on the good cause requirement to 

obtain two medical examinations. 

PRAYER FOR RELIEF

The Court should deny APS’s Petition for Mandamus, set aside its stay order 

and allow the trial court to proceed as scheduled. Plaintiff requests all other relief 

to which he is justly entitled. 

 
 32

Respectfully submitted, 

ARNOLD & ITKIN, LLP 

By: /s/ J. Kyle Findley 

Kurt B. Arnold 

SBN: 24036150 

karnold@arnolditkin.com 

J. Kyle Findley 

SBN: 24076382 

kfindley@arnolditkin.com 

Kala Flittner Sellers 

SBN: 24087519 

ksellers@arnolditkin.com 

6009 Memorial Dr. 

Houston, TX 77007 

(713) 222-3800 

(713) 222-3850 (Fax) 

Counsel for Real Party in Interest, 

Tremaine Hewitt 

 
 33

CERTIFICATE OF SERVICE

 I hereby certify that on October 30, 2015, a true and correct copy of the 

above and foregoing Response to Petition for Writ of Mandamus was forwarded to 

all counsel of record by the Electronic Filing Service Provider, if registered, 

otherwise by email, as follows: 

Donald M. Hudgins 

Michael D. Hudgins 

Steven F. Hudgins 

The Hudgins Law Firm, A Professional Corporation 

24 Greenway Plaza, Suite 2000 

Houston, Texas 77046 

Charles A. Sturm 

Sturm Law, PLLC 

723 Main Street, Suite 330 

Houston, Texas 77002 

Attorneys for Relator, 

Advanced Powder Solutions, Inc.

Honorable Kyle Carter 

125th District Court 

Harris County 

201 Caroline, 10th Floor 

Houston, TX 77002 

/s/ J. Kyle Findley 

J. Kyle Findley 

 
 34

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Tex. R. App. P. 9.4 

because it contains 8,467 words, excluding the parts of the brief exempted by Tex. 

R. App. P. 9.4(i)(2)(B). 

 
 35

APPENDIX

TAB DOCUMENT

1. Plaintiff’s First Amended Petition 
Tab 1 
CAUSE NO. 2014-16020 

Tremaine Hewitt § IN THE DISTRICT COURT OF 

 § 

 Plaintiff § 

 § 

v. § HARRIS COUNTY, TEXAS 

 § 

Advanced Powder Solutions, Inc., § 

Dean Baker, and Martha E. Baker § 

 § 

 Defendants. § 125th JUDICIAL DISTRICT 

Plaintiff’s First Amended Petition 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Plaintiff Tremaine Hewitt, complaining of Advanced Powder 

Solutions, Inc., Dean Baker, and Martha E. Baker, respectfully showing the Court the 

following: 

I. 

Nature of Action 

1. This is an action arising under the common law of the State of Texas. 

II. 

Discovery 

 2. Plaintiff intends to conduct discovery under Discovery Level 2 pursuant to 

TEX. R. CIV. P. 190.3. 

III. 

Jurisdiction and Venue 

3. The Court has jurisdiction over this case because Plaintiff seeks damages well 

within the jurisdictional limits of the Court, and Defendants are citizens of Texas. 

4. Venue is proper in Harris County because a substantial part of the events or 

omissions underlying Plaintiffs’ claims occurred in Harris County. See TEX. CIV. PRAC. &

9/28/2015 11:53:01 AM

Chris Daniel - District Clerk Harris County

Envelope No. 7122087

By: Julio Garcia

Filed: 9/28/2015 11:53:01 AM
2 

REM. CODE 15.002(a)(1). Further Defendants reside in Harris County. TEX. CIV. PRAC. &

REM. CODE 15.002(a)(2). 

IV. 

Parties 

5. Plaintiff is a resident of Texas. 

 6. Defendant, Advanced Powder Solutions, Inc. is a Texas company that has 

made an appearance in this case. 

 7. Defendant, Dean Baker, is a Texas citizen and may be served through personal 

delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever he may be found. 

 8. Defendant, Martha E. Baker, is a Texas citizen and may be served through 

personal delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever she may be 

found. 

V. 

Facts 

9. On or about August 28, 2013, Plaintiff was employed by Advanced Powder 

Solutions, Inc. (“APS”), a non-subscriber to Texas Workers’ Compensation. Plaintiff was 

working at APS’s facility in front of a reactor on a ladder when a co-worker began 

manipulating valves on the reactor. This caused a blast and caused Plaintiff to fall off the 

ladder and into a fire. Plaintiff suffered severe burns and orthopedic injuries as a result. 

Plaintiff had to be life-flighted from the scene, and has already undergone multiple surgeries. 

VI. 

Causes of Action 

Negligence and Gross Negligence 

 10. Plaintiff repeats and realleges each allegation contained above. 
3 

 11. Plaintiff sustained serious injuries because of Defendants’ negligence and 

gross negligence evidenced by Defendants’: 

 Failure to properly train its employees; 

 Failure to properly supervise its employees; 

 Use of the reactor; 

 Failure to have safe policies and procedures for the work Plaintiff was doing when 

he suffered injuries; 

 Failure to provide a safe work place; 

 Other acts deemed negligent and grossly negligent. 

12. As a result of Defendants’ negligence and gross negligence, Plaintiff suffered 

severe physical injuries. Plaintiff is entitled to recover damages for his injuries. Defendants’ 

actions were done with a reckless disregard to a substantial risk of severe bodily injury. As 

such, Plaintiff is entitled to exemplary damages. 

VII. 

 Joint and/or Vicarious Liability 

 13. Plaintiff repeats and realleges each allegation contained above. 

 14. For the following reasons based on information and belief, Defendant APS’s 

corporate form should be disregarded to hold Defendants Dean Baker and Martha E. Baker 

vicariously or jointly liable to Plaintiff for APS’s wrongful conduct: 

 a. APS is a mere sham, organized and operated by Dean Baker and 

Martha E. Baker in their individual capacity to perpetrate fraud upon Plaintiff and potentially 

other unsuspecting persons. Defendants made material representations to Plaintiff that were 

false when made and which Defendants knew were false or made recklessly, and/or 
4 

Defendants had a duty to disclose but failed to disclose material facts to Plaintiff, knowing 

Plaintiff did not know and did not have an equal opportunity to discover those facts. 

Specifically, Defendants made misrepresentations and/or omissions about APS’s corporate 

structure and finances and made these material misrepresentations and/or omissions with the 

intent to induce Plaintiff to delay in asserting his negligence and gross negligence causes of 

action against Dean Baker and Martha E. Baker, individually. Plaintiff relied to his 

detriment on those misrepresentations and/or omissions. 

 b. Dean Baker and Martha E. Baker are each the “alter ego” of APS and 

APS was and is organized and operated as a mere tool and/or business conduit for the Baker 

Defendants’ personal benefit and advantage. Dean Baker and Martha E. Baker, individually, 

have at all times exercised total dominion and control over APS, and have exercised such 

control in a manner indistinguishable from his and her own personal affairs. Dean Baker and 

Martha E. Baker were the first and, Plaintiff believes, the only directors of APS. Dean Baker 

and Martha E. Baker own a majority of the stocks issued and have maintained complete 

corporate ownership. Dean Baker and Martha E. Baker have also commingled their personal 

funds with corporate funds and have paid corporate debts with personal checks. 

 c. Dean Baker and Martha E. Baker are using APS’s corporate fiction as a 

means of evading an existing legal obligation, namely, civil liability for negligence and gross 

negligence that injured Plaintiff and caused Plaintiff to incur damages. 

 d. Dean Baker, individually, intentionally operated and continues to 

operate APS with inadequate capitalization. Specifically, APS operates its business with 

insufficient assets to satisfy potential debts and liabilities associated with running its 

business. Because Dean Baker operated and continues to operate APS with inadequate 
5 

capitalization, equity dictates that Dean Baker, in his individual capacity, be held vicariously 

liable to Plaintiff for all of his damages alleged herein. 

VIII. 

Statute of Limitations 

 15. Plaintiff repeats and realleges each allegation contained above. 

16. If Defendants assert statute of limitations as an affirmative defense to any of 

the causes of action asserted above, the affirmative defense fails for one or more of the 

following reasons: 

17. The applicable statute of limitations was tolled because Defendants 

fraudulently concealed facts pertaining to the true identities of the Defendants. Through no 

fault of Plaintiff’s, Defendants withheld documents evidencing APS’s corporate structure, 

financial information, and undercapitalization until this month, September 2015, which was 

about eight months after Plaintiff’s most recent discovery request and only a few weeks after 

the two-year anniversary of the accident giving rise to this lawsuit. Defendants made 

material representations to Plaintiff that were false when made and which Defendants knew 

were false or made recklessly, and/or Defendants had a duty to disclose but failed to disclose 

material facts to Plaintiff, knowing Plaintiff did not know and did not have an equal 

opportunity to discover those facts. Defendants made these material misrepresentations 

and/or omissions with the intent to induce Plaintiff to delay in asserting his negligence and 

gross negligence causes of action against Dean Baker and Martha E. Baker, individually. 

Defendants had actual knowledge of their misconduct yet actively suppressed the truth to 

conceal it. Plaintiff exercised reasonable diligence to discover the information Defendants 

were concealing by seeking such information through his discovery requests in this lawsuit. 
6 

Plaintiff reasonably relied on Defendants’ misrepresentations and/or omissions to his 

detriment. 

18. The applicable statute of limitations against Dean Baker and Martha E. Baker 

was tolled as of the date Plaintiff filed suit against APS because Dean Baker and Martha E. 

Baker are the alter ego of APS and are vicariously liable defendants. 

 19. The applicable statute of limitations was tolled for any and all periods of time 

that Dean Baker and/or Martha E. Baker were absent from the State of Texas. Upon 

information and belief, Dean Baker and Martha E. Baker were absent from the state for a 

sufficient period of time during the limitations period to preclude any defense based on 

statute of limitations. 

 20. Defendants are equitably estopped from asserting a limitations defense to any 

of Plaintiff’s claims because Defendants, acting with actual or constructive knowledge of the 

facts regarding APS’s corporate structure and finances, materially misrepresented those facts 

to Plaintiff and/or concealed those facts from Plaintiff with the intent to induce Plaintiff to 

rely on Defendants’ material misrepresentations and/or omissions and delay in filing suit 

against Dean Baker and Martha E. Baker, individually. Plaintiff neither had knowledge of 

the truth nor means of obtaining knowledge of the truth, and he relied on Defendants’ 

material misrepresentations and/or omissions to his detriment. 

IX. 

Prayer

 21. Plaintiff prays for relief and judgment as follows: 

 a. Compensatory damages against each Defendant; 

 b. Actual damages, such as past and future economic damages, past and 

future medical bills, past and future pain and suffering, past and future 
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impairment, past and future disfigurement, past and future mental 

anguish; 

 c. Consequential damages; 

 d. Exemplary damages; 

 e. Interest on damages (pre- and post-judgment) in accordance with law; 

 f. Such other and further relief as the Court may deem just and proper; 

 g. Attorneys’ fees. 

Respectfully Submitted, 

ARNOLD & ITKIN LLP 

/s/ Kurt Arnold 

_______________________________ 

Kurt B. Arnold 

SBN: 24036150 

karnold@arnolditkin.com 

J. Kyle Findley 

SBN: 24076382 

kfindley@arnolditkin.com 

Kala F. Sellers 

SBN: 24087519 

ksellers@arnolditkin.com 

6009 Memorial Drive 

Houston, Texas 77007 

Tel: 713.222.3800 

Fax: 713.222.3850 

e-service@arnolditkin.com 

 ATTORNEYS FOR PLAINTIFF 
8 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the above and foregoing document has 

been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure 

on this 28th day of September, 2015. 

Steven F. Hudgins 

The Hudgins Law Firm, A Professional Corporation 

24 Greenway Plaza, Suite 2000 

Houston, Texas 77046 

Counsel for Defendant 

Advanced Powder Solutions, Inc. 

/s/ Kyle Findley 

J. Kyle Findley