in Re Christina Estabrook

IN THE
TENTH COURT OF APPEALS

No. 10-20-00175-CV

IN RE CHRISTINA ESTABROOK

Original Proceeding

MEMORANDUM OPINION

In this personal-injury action for negligence and medical battery, relator, Christina

Estabrook, has filed a petition for writ of mandamus asserting that the trial court abused

its discretion by ordering her to submit to a compulsory neuropsychological exam under

Texas Rule of Civil Procedure 204.1. See generally TEX. R. CIV. P. 204.1. We conditionally

grant Estabrook’s mandamus petition, in part.

I. BACKGROUND

In her live pleading, Estabrook alleges that William F. Price, M.D., performed a

medical procedure after she expressly said that she did not want the procedure done and
refused to sign a hospital consent form for the procedure.1 As a result of the procedure,

Estabrook claims that she has sustained damages that cause her debilitating pain. She

further alleges damages for loss of earnings, household services, fringe benefits,

permanent physical impairment, loss of enjoyment of life, disfigurement, future medical

and hospital care, and “great physical pain and mental anguish in the past, and in all

reasonable medical probability, will continue to suffer, on a permanent basis, great

physical pain and mental anguish in the future . . . .”

Thereafter, real parties in interest, Dr. Price and Scott & White Hospital-College

Station d/b/a Baylor Scott & White Medical Center-College Station, filed a motion to

compel a neuropsychological examination of Estabrook under Texas Rule of Civil

Procedure 204.1. See id. Estabrook objected to the motion, and the trial court conducted

a hearing on the matter. On June 1, 2020, the trial court signed an order granting the

motion filed by real parties in interest, thus requiring Estabrook to submit to a

neuropsychological exam within thirty days of the order.

Thereafter, Estabrook filed her mandamus petition in this Court, as well as a

request to stay the trial court’s June 1, 2020 order. We granted Estabrook’s motion to stay

the trial court’s June 1, 2020 order.

1At the time of the medical procedure, Dr. Price was employed by co-defendant, Scott & White
Hospital-College Station d/b/a Baylor Scott & White Medical Center-College Station. Moreover, the
complained-of procedure was conducted at the Baylor Scott & White Medical Center in College Station.

In re Estabrook Page 2
 II. STANDARD OF REVIEW

Mandamus is an extraordinary remedy, available only when the relator can show

both that: (1) the trial court clearly abused its discretion or violated a duty imposed by

law; and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165

S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding); see Walker v. Packer, 827

S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a

trial court’s ruling is arbitrary and unreasonable or is made without regard for guiding

legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708,

712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).

A trial court abuses its discretion when it fails to analyze or apply the law correctly to the

facts. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; In re H.E.B. Grocery Co., 492 S.W.3d

300, 302 (Tex. 2016) (orig. proceeding) (per curiam).

In determining whether an appeal is adequate, we consider whether the benefits

outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d

840, 845 (Tex. 2008) (orig. proceeding). In deciding whether the benefits of mandamus

outweigh the detriments, we weigh the public and private interests involved, and we

look to the facts in each case to determine the adequacy of an appeal. In re United Servs.

Auto Ass’n, 307 S.W.3d 299, 313 (Tex. 2020) (orig. proceeding); In re McAllen Med. Ctr.,

Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). Mandamus “may be essential to preserve

In re Estabrook Page 3
important substantive and procedural rights from impairment or loss, [and] allow the

appellate courts to give needed and helpful direction to the law that would otherwise

prove elusive in appeals from final judgments.” In re Prudential Ins. Co. of Am., 148 S.W.3d

at 136.

Generally, the scope of discovery is within the discretion of the trial court. In re

Valero Refining-Tex., L.P., 415 S.W.3d 567, 569-70 (Tex. App.—Houston [1st Dist.] 2013,

orig. proceeding) (citations omitted). Moreover, an order regarding a physical or mental

examination under Texas Rule of Civil Procedure 204 may be subject to review by

mandamus. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.

proceeding) (noting that mandamus will issue to correct a discovery order if the order

constitutes a clear abuse of discretion and there is no adequate remedy by appeal); see also

In re Soc’y of Our Lady of the Most Holy Trinity, No. 13-19-00064-CV, 2019 Tex. App. LEXIS

6269, at *16 (Tex. App.—Corpus Christi July 23, 2019, orig. proceeding) (stating that

mandamus review is available for orders involving a physical or mental examination

under Texas Rule of Civil Procedure 204). The Texas Supreme Court has concluded that

mandamus is appropriate to correct the denial of an examination where the defense of

the case “hinge[d] in large part on challenges to the nature, extent, and cause” of the

plaintiff’s injuries, those issues depended significantly on competing expert testimony

and the defense’s expert required “the same opportunity” as the plaintiff’s expert “to

fully develop and present his opinion, ensuring a fair trial.” In re H.E.B. Grocery Co., 492

In re Estabrook Page 4
S.W.3d at 304-05; see In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863 (Tex. App.—

Dallas 2014, orig. proceeding). Additionally, rulings regarding Rule 204 examinations

may be reviewed by mandamus when they violate the “fundamental fairness” doctrine

or the “fair trial” standard. See, e.g., In re Advanced Powder Sols., Inc., 496 S.W.3d 838, 851

(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); In re Ten Hagen Excavating, Inc.,

435 S.W.3d at 870.

III. ANALYSIS

In arguing that the trial court abused its discretion by ordering her to submit to a

neuropsychological examination under Rule 204.1, Estabrook contends that: (1) good

cause for a mental condition does not exist because it is not supported by any expert or

medical testimony, is unrelated to the conditions alleged to have put her mental condition

in controversy, and because it could be proved up by less intrusive means; (2) she did not

put her mental condition in controversy; and (3) the trial court failed to put any

restrictions on the scope of the neuropsychological examination.

Medical and mental exams are regulated under Texas Rule of Civil Procedure 204.

See TEX. R. CIV. P. 204.1-.5. Under Rule 204.1, a party may, no later than thirty days before

the end of the applicable discovery period, move for an order compelling another party

to submit to a physical or mental examination by a qualified physician or psychologist.

See id. at R. 204.1(a)(1). The party seeking the examination must show both (1) good cause,

and (2) that the mental or physical condition of a party is in controversy or the party

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responding to the motion has designated a psychologist as a testifying expert or has

disclosed a psychologist’s records for possible use at trial. See id. at R. 204.1(c)(1); In re

H.E.B. Grocery Co., 492 S.W.3d at 303; Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988)

(orig. proceeding). These requirements are not satisfied by “conclusory allegations” in

the movant’s pleadings or by “mere relevance to the case.” Coates, 758 S.W.2d at 751; see

In re H.E.B. Grocery Co., 492 S.W.3d at 303; In re Transwestern Publ’g Realtors Co. L.L.C., 96

S.W.3d 501, 505 (Tex. App.—Fort Worth 2002, orig. proceeding).

In meeting the “in controversy” prong, the Coates court stated that “[a] routine

allegation of mental anguish or emotional distress does not place the party’s mental

condition in controversy. The plaintiff must assert mental injury that exceeds the

common emotional reaction to an injury or loss.” 758 S.W.2d at 753. Further, “sweeping

examinations of a party who has not affirmatively put his mental condition in issue may

not be routinely ordered simply because the party brings a personal injury action.” Id. at

751 (citing Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964)).

A mental injury that warrants a psychological evaluation is distinguishable from

emotional distress that accompanies a personal-injury action. Id.

As noted above, Estabrook asserted that she “has suffered great physical pain and

mental anguish in the past, and in all reasonable medical probability, will continue to

suffer, on a permanent basis, great physical pain and mental anguish in the future” as a

result of the injuries sustained due to the alleged negligence of the real parties in interest.

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Additionally, in the factual part of her live pleading, Estabrook refers to the testimony of

Tristi Muir, M.D., who noted that Estabrook “has undergone various treatments for pain,

including physical therapy, psychological therapy, botox injections[,] and nerve blocks.

Dr. Muir has opined to a reasonable degree of medical certainty that Mrs. Estabrook will

continue to need the same or similar treatments in the future to control her pain.”

Moreover, in her deposition testimony, Estabrook described feelings of embarrassment

and self-consciousness as a result of the injuries, which also included an admission that

she is being treated for depression and PTSD. We believe that Estabrook’s allegations,

coupled with the evidence contained in the record, sufficiently puts Estabrook’s mental

condition “in controversy.” See TEX. R. CIV. P. 204.1(c)(1); see also In re H.E.B. Grocery Co.,

492 S.W.3d at 303; Coates, 758 S.W.2d at 753. As such, we cannot say that the trial court

abused its discretion by concluding that Estabrook’s mental condition is “in controversy”

in this matter. See TEX. R. CIV. P. 204.1(c)(1); see also In re H.E.B. Grocery Co., 492 S.W.3d at

303; Coates, 758 S.W.2d at 753; In re Valero Refining-Tex., L.P., 415 S.W.3d at 569-70.

However, despite the foregoing, we find that the scope of the trial court’s order

regarding the neuropsychological exam is too broad. Specifically, the trial court’s order

provides the following:

It is, therefore, ORDERED that Plaintiff Christina Estabrook shall submit to
a neuropsychological examination to be performed by Corwin Boake, PhD.
within thirty (30) days of the execution of this Order. The examination will
be conducted on one or two days, depending on the scheduling and clinical
complexity, at the offices of Dr. Boake located in Houston, Texas. The

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 examination will be conducted without the presence of counsel of any
party.

It is further ORDERED that Dr. Boake’s neuropsychological
examination address the existence, extent, cause, duration and severity of
Christina Estabrook’s psychological condition and function as it relates to
Mrs. Estabrook’s injuries, symptoms, diagnoses, impairments, and
necessity of past and future medical treatment. The neuropsychological
examination will consist of an interview and administration of tests which
are standardized and interpreted following standard procedures. The tests
will measure the following domains: sensation, movement, language,
memory, psychomotor speed, visual perception, intelligence, executive
function, validity, and mental health. A report will be prepared listing all
tests administered, test scores, and interpretations.

Nowhere in the order did the trial court limit the examination to the mental conditions

Estabrook put in controversy—depression and PTSD.

Texas Rule of Civil Procedure 204.1(d) requires the trial court to specify the time,

place, manner, conditions, and scope of the mental examination. See TEX. R. CIV. P.

204.1(d). Texas courts have held that the failure to place any limitations on the scope of

the mental examination, especially to the mental conditions specifically in controversy in

the matter, constitutes an abuse of discretion. See In re Offshore Marine Contractors, Inc.,

496 S.W.3d 796, 803 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (“While the

trial court abused its discretion in not permitting any interview or testing by Yohman, it

does not necessarily follow that OMC is allowed the full panoply of tests it seeks. The

trial court retains discretion to place reasonable limits on Yohman’s interview and

tests. . . . The length of Yohman’s interview and the quantity and duration of

neuropsychological tests to be administered are matters for the trial court’s discretion,
In re Estabrook Page 8
which must be exercised by considering the fair-trial standard.” (citations omitted)); see

also In re Reyes, No. 02-20-00071-CV, 2020 Tex. App. LEXIS 2298, at **3-4 (Tex. App.—Fort

Worth Mar. 19, 2020, orig. proceeding) (mem. op.) (“Here, on its face, Respondent’s order

does not set out the place, manner, conditions, or scope of the examination, or by whom

it is to be made. . . . Because the order demonstrates a clear failure to comply with Rule

204.1’s requirements, we sustain the relevant portions of Reyes’s four issues and

conditionally grant partial relief so that Respondent may tailor the order to comply with

Rule 204.1’s requirements, thereby limiting the order to that which fairness requires.”

(internal citations omitted)); In re Sharaf, 2018 Tex. App. LEXIS 9027, at **7-8 (Tex. App.—

Austin Nov. 5, 2018, orig. proceeding) (mem. op.) (concluding that the trial court abused

its discretion because the order did not “limit the scope of the mental examination to the

identified testing or interview or place other parameters on the examination, such as

limiting the testing to standardized testing or placing a limitation on the duration of the

testing and interview”); cf. In re Trimac Transp. Inc., No. 09-08-270-CV, 2008 Tex. App.

LEXIS 5329, at **3-4 (Tex. App.—Beaumont July 17, 2008, orig. proceeding) (mem. op.)

(“The trial court may place reasonable conditions on the manner and scope of the

examination. . . . However, a trial court may not prevent the development of medical

testimony that would allow the defendant to fully investigate the conditions that the

plaintiff has placed in issue.”).

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 Because the trial court’s order did not limit the neuropsychological examination

to the mental conditions in controversy—Estabrook’s depression and PTSD, we conclude

that the trial court abused its discretion to the extent that it ordered the mental

examination without proper limitations, as fairness requires. We further conclude that

an appeal of the trial court’s order after trial would not provide an adequate remedy, as

the examination under the current overly-broad order would violate Estabrook’s privacy

rights. See, e.g., Paxton v. City of Dallas, 509 S.W.3d 247, 261 (Tex. 2017) (“Once information

has been disclosed, loss of confidentiality is irreversible. The bell cannot be unrung, and

neither dissemination nor use can be effectively restrained.”). Accordingly, we sustain

Estabrook’s sole issue, in part.

IV. CONCLUSION

Based on the foregoing, we grant Estabrook’s mandamus petition, in part, so that

Respondent may tailor the order to comply with Rule 204.1’s requirements, thereby

limiting the order to that which fairness requires. We are confident respondent will

modify the order in accordance with the opinion and will instruct our clerk to issue the

writ only if Respondent fails to do so within twenty-one days after the date of this

opinion. All other relief is denied.

JOHN E. NEILL
Justice

In re Estabrook Page 10
Before Chief Justice Gray
Justice Davis, and
Justice Neill
Conditionally granted, in part
Opinion delivered and filed October 21, 2020
[OT06]

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