Opinion issued August 31, 2018

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00399-CV

———————————

IN RE MICHAEL ANGEL SANCHEZ, YELLOWSTONE LANDSCAPE 

GROUP, INC., AND BIO LANDSCAPE AND MAINTENANCE, Relators

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

Relators, Michael Angel Sanchez, Yellowstone Landscape Group, Inc., and 

Bio Landscape and Maintenance (collectively “Relators”), have filed a petition for 

a writ of mandamus challenging the trial court’s order denying their motion to 

compel a physical examination of real party in interest, Malek Abushaaban.1

 

1 The underlying case is Malek Abushaaban v. Michael Angel Sanchez, Yellowstone 

Landscape Group, Inc., and Bio Landscape and Maintenance, Cause No. 
2

We deny the petition.

Mandamus is an extraordinary remedy that is available when a trial court 

abuses its discretion and the relator has no adequate remedy by appeal. 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). A trial 

court has no discretion in determining what the law is and applying it to the facts, 

and it abuses its discretion if it fails to analyze or apply the law correctly. See In re 

Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); 

Walker, 827 S.W.2d at 840. “The relator must establish that the trial court could 

have reasonably reached only one conclusion.” In re H.E.B. Grocery Co., 492 

S.W.3d 300, 303 (Tex. 2016) (orig. proceeding).

In the trial court, Abushaaban filed suit to recover damages for injuries he 

allegedly sustained in a collision between his car and a truck driven by Sanchez. 

Relators moved to compel Abushaaban to submit to a physical examination. See 

TEX. R. CIV. P. 204.1(a)(1). To obtain an order compelling a physical examination, 

a movant must show that (1) the physical condition of the party the movant seeks to 

examine is “in controversy” and (2) “good cause” exists for the examination. Id.

204.1(c)(1). “These requirements cannot be satisfied ‘by mere conclusory 

 

2016-33602, in the 164th District Court of Harris County, the Honorable Alexandra 

Smoots-Thomas presiding.
3

allegations of the pleadings—nor by mere relevance to the case.’” In re H.E.B. 

Grocery, 492 S.W.3d at 303 (quoting Coates v. Whittington, 758 S.W.2d 749, 751 

(Tex. 1988)). Rather, the movant has “an affirmative burden” to establish the rule 

204.1 requirements. In re Advanced Powder Sols., Inc., 496 S.W.3d 838, 848 (Tex. 

App.—Houston [1st Dist.] 2016, orig. proceeding) (internal quotations and citation 

omitted); see In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—

Dallas 2014, orig. proceeding) (noting rule 204.1 “does not grant an automatic right 

to obtain a physical or mental examination”). The purpose of the “good cause”

requirement is to balance the competing interests of “the movant’s right to a fair trial 

and the other party’s right to privacy.” In re H.E.B. Grocery, 492 S.W.3d at 303. 

To establish good cause, the movant must establish that (1) “the requested 

examination is relevant to issues in controversy and will produce or likely lead to 

relevant evidence,” (2) there is “a reasonable nexus between the requested 

examination and the condition in controversy,” and (3) “the desired information 

cannot be obtained by less intrusive means.” Id.

In their trial court motion to compel an examination, Relators asserted that 

Abushaaban had placed his physical condition in controversy by seeking past and 

future damages for injuries allegedly sustained in the collision and there is “a 

relevant connection between the requested examination and the condition in 

controversy.” And they argued that they cannot obtain the requested information 
4

through less intrusive means because Abushaaban would not allow the examination 

without a court order. Relators attached to their motion, as exhibits, Abushaaban’s 

First Amended Original Petition, his deposition testimony, and the affidavit of Dr. 

David G. Vanderweide, an orthopedic surgeon who averred that he needed to 

examine Abushaaban “first-hand” “[t]o understand his current medical condition 

and assess his future medical status.”2 In response, Abushaaban did not dispute that 

his physical condition is in controversy. But, he asserted that Relators offered only 

a “general statement” as to the need for a medical examination, “offer[ed] no specific 

reasons or evidence that the requested examination w[ould] produce relevant 

evidence,” “failed to identify all other actions taken to obtain the information sought 

prior to filing the request to obtain a medical examination,” and had “not utilized all 

 

2

In his affidavit, Dr. Vanderweide did not aver that he reviewed Abushaaban’s 

medical records. As an exhibit to his response to Relators’ motion, Abushaaban 

included a separate “Controverting Affidavit of Dr. David G. Vanderweide.” In that 

affidavit, he averred that he reviewed “billing records and billing records affidavits,” 

the amounts billed for services provided to Abushaaban were not reasonable, and 

“after a review of [Abushaaban’s] medical treatment records” from the providers 

listed in the affidavit, Abushaaban’s “physical therapy treatment . . . beyond 12-20 

visits [was] unnecessary.” See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)

(Vernon 2015) (providing, absent controverting affidavit, affidavit service was 

necessary and amount charged was reasonable at time and place service was 

provided supports finding amount charged was reasonable or service was 

necessary). Based on the controverting affidavit, Abushaaban asserted in the trial 

court that Vanderweide does not “challenge the type of treatment—he challenges 

the length based on number of visits” and “[t]hose challenges are best resolved via 

deposition of the medical providers who treated [Abushaaban] and retrieval of 

records—not by physical examination.”
5

resources afforded to them to obtain any records prior to the date of the accident.”3 

Abushaaban argued that Relators sought his examination prematurely because they 

could obtain the information by obtaining and reviewing his medical records or 

deposing his treating doctors. After a non-evidentiary hearing, the trial court, 

without explanation, denied Relators’ motion to compel Abushaaban to submit to a 

medical examination.

Relators then filed in this Court their petition for a writ of mandamus, arguing

that the trial court abused its discretion in denying their motion because Abushaaban 

had “designated his medical providers as expert witnesses” to testify “with respect 

to his disputed medical condition” and an examination is “the least intrusive method 

to obtain medical evidence in a battle of expert witnesses.” In support, Relators have 

included in the mandamus record Abushaaban’s First Amended Responses to 

Defendant’s Request for Disclosures, in which he identified his treating doctors as 

experts expected to testify as to “the reasonableness and necessity of medical care 

and medical bills in addition to causation of [his] damages.”

4

 They have also 

 

3 Among other items, Abushaaban included, as exhibits to his response, a “Wavier of 

Notice,” stating that Relators had “commissioned Republic Services, Inc. to obtain 

records on [Abushaaban]” from the listed custodians and a “Medical 

Authorization,” executed by Abushaaban, authorizing release of his medical records 

from “January 20, 2005 to Present-day.”

4 Abushaaban’s First Amended Responses to Defendant’s Request for Disclosures

indicate that he served them on Relators before the trial court ruled on their motion 

to compel. However, neither Relators’ petition nor the record shows that the first 
6

included Plaintiff’s Notice of Filing of Billing and Medical Records Affidavits, and 

an Affidavit of Medical Records with a physician’s “Progress Note” and a surgeon’s 

“Office Visit” notes.5 Relators, stating that Abushaaban “has designated his medical 

providers as expert witnesses and has submitted affidavits with their medical 

records,” assert that the requested examination of Abushaaban is required for them 

to obtain a fair trial.

We note, however, that there is no indication that these items were presented 

to the trial court in consideration of Relators’ motion to compel Abushaaban to 

submit to a physical examination. Relators did not include them as exhibits to their 

motion or otherwise identify the items as support for their motion. Relators’ counsel 

has certified to this Court that “[n]o exhibits were offered in evidence at the hearing, 

and no testimony was adduced in connection with the matter complained of.” And 

 

amended responses were filed with the trial court or provided to the trial court in 

consideration of Relators’ motion to compel. See TEX. R. CIV. P. 191.4(a)(2) 

(providing responses to discovery requests “must not be filed”), 191.4(c) (providing 

exceptions to rule that discovery responses must not be filed).

5 Plaintiff’s Notice of Filing Billing and Medical Records Affidavits (“Notice”) and 

Affidavit of Medical Records reflect that Abushaaban filed these items with the trial 

court before Relators filed their motion to compel. The Notice states that the listed 

affidavits of billing records custodians and medical records custodians “are being 

filed with the [trial] Court” and Abushaaban “intends to offer the records” from the 

listed facilities “into evidence at the trial of this case . . . by the affidavits attached” 

to it. See TEX. R. EVID. 803(6), (7), 902(10). The Notice does not indicate that 

medical or billing records were actually filed with the trial court. 
7

the trial court’s order denying Relators’ motion indicates that the trial court 

considered only the “Motion to Compel” and counsels’ arguments. 

The decision whether to grant Relators’ motion for a physical examination 

was within the trial court’s discretion. See In re Offshore Marine Contractors, Inc., 

496 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); In 

re Ten Hagen, 435 S.W.3d at 865–66. Considering the record that was before the 

trial court when it denied their motion, we conclude that Relators have not 

established that the trial court abused its discretion in denying their motion to compel 

a physical examination of Abushaaban. Notably, Relators did not assert in their trial 

court motion that “a battle of the experts” required the trial court to allow their 

requested examination of Abushaaban, nor did they present to the trial court any 

support for their “battle of the experts” assertion that they now advance in this Court. 

See In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. 

proceeding) (explaining mandamus review limited to record actually before trial 

court for consideration).

Further, the “controlling authority” on which the dissent and Relators rely in 

support of the argument that mandamus relief is warranted does not compel the 

conclusion that the trial court here may have reached only one conclusion and, thus, 

abused its discretion in denying Relators’ motion. Cf. In re H.E.B. Grocery, 492 

S.W.3d at 303–04 (concluding physical examination warranted when requiring 
8

defendant’s expert to testify at jury trial without benefit of examining plaintiff placed 

expert at “a distinct disadvantage” because plaintiff could question expert’s 

credibility and subsequent injury “introduced new complications with respect to the 

nature, extent, and cause” of plaintiff’s injuries);

6

In re Kirby Inland Marine, LP, 

No. 01-18-00383-CV, 2018 WL 3468476, at *3 (Tex. App.—Houston [1st Dist.] 

July 18, 2018, orig. proceeding) (mem. op.) (concluding, because “time and advance 

notice limitations imposed by the trial court” denied relator ability to conduct full 

neuropsychological evaluation, limitations violated fundamental fairness and 

fair-trial standard and constituted abuse of discretion); In re AutoZone Parts, Inc., 

No. 01-17-00559-CV, 2017 WL 4974559, at *2–3 (Tex. App.—Houston [1st Dist.] 

Nov. 2, 2017, orig. proceeding) (mem. op.) (explaining plaintiff had “designated 

multiple medical providers” as testifying expert witnesses and concluding 

defendant’s expert witness disadvantaged without examining plaintiff); In re 

 

6

In In re H.E.B. Grocery Co., the relator’s medical expert first provided a report 

“detailing his opinion” about the plaintiff’s injuries based on an examination of his 

medical records. 492 S.W.3d 300, 301 (Tex. 2016). Realtor then moved to compel 

a physical examination of plaintiff, “amend[ing] the motion several times to provide 

additional documentation.” Id. Unlike the record presented here, the record in In re 

H.E.B Grocery included the expert’s deposition testimony, explaining “why ‘a 

treating doctor is in a better position to examine and treat a patient’s injuries’ than 

a ‘records review doctor’”; the expert’s affidavit testimony that “provid[ed] a 

description of the examination and proposed findings”; and a separate incident that 

occurred after the expert had prepared his initial report, “introduc[ing] new 

complications with respect to the nature, extent, and cause of [plaintiff’s] injuries 

that warrant a physical examination.” Id. at 303–04 & n.3.
9

Advanced Powder Sols., 496 S.W.3d at 851 (concluding “fundamental fairness” 

required allowing defendant’s expert to examine plaintiff when his expert’s report 

included “at least four pages and multiple ‘diagnostic conclusions’” based 

exclusively upon expert’s examination of plaintiff, not his medical records or other 

sources); In re Offshore Marine Contractors, 496 S.W.3d at 801–02 (concluding 

relator met burden to show less intrusive means inadequate to satisfy “fair-trial 

standard” when relator’s neuropsychological expert provided “detailed explanation” 

why he could not “confidently rely on [plaintiff’s] previous examinations and 

medical records,” stating findings were “inconsistent with typical symptoms of 

concussion and there [were] indications of test score errors and possible 

misrepresentations by [plaintiff] of his symptoms”).
10

Because Relators have not shown that the trial court, based on the record 

before it, abused its discretion in denying their motion to compel a physical 

examination, we deny the petition.7 And we dismiss as moot Relators’ motion to 

stay the trial setting in the underlying proceeding.

Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Keyes, J., dissenting.

 

7 Nothing in this opinion precludes Relators from properly reurging their motion to 

compel a physical examination of Abushaaban or seeking a stay of the trial setting 

in the trial court.