TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00504-CV
In re Lucas Peter Peterson, East Branch Inc., and CLW, Inc.
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relators Lucas Peter Peterson, East Branch Inc., and CLW, Inc., have filed a
petition for writ of mandamus complaining of the trial court’s order denying their motion to
compel mental and physical examinations of real party in interest Amanda Hendrickson. We
conditionally grant relief in part and deny relief in part.
BACKGROUND
Hendrickson filed suit against relators for injuries she suffered in a multi-vehicle
accident she alleged was caused by Peterson.1 In February 2020, relators filed a motion to
compel a physical examination, asserting that their retained expert, Dr. Anton Jorgensen, should
be allowed to examine Hendrickson to determine the extent of her injuries and the proper
treatment for those injuries. Hendrickson opposed the motion, asserting that Dr. Jorgensen had
not reviewed her medical records or the testimony of her treating doctors, who had not yet been
1Hendrickson’s petition alleges that Peterson was employed by East Branch Inc.
“and/or” CLW, Inc.
deposed, and that relators thus could not show that the requested examination would produce
relevant evidence. The trial court denied relators’ motion “without prejudice for some material
change.”
In May, relators filed a second motion, seeking a physical examination and adding
a request for a mental examination because issues about Hendrickson’s mental state had been
raised by her pleadings and medical records. Relators explained that Hendrickson’s Physical
Medicine & Rehabilitation expert had prepared a life-care plan stating that she will “require
future medical care every year for the rest of her life” and that when she was deposed soon after
the first motion was denied, Hendrickson had been unable to provide information about her
physical and mental conditions and instead gave what relators characterized as “nebulous
descriptive terms of her neck, mid and low back pain.” Relators asserted that their experts had
reviewed Hendrickson’s medical records and needed to conduct the examinations to obtain
“substantive” or “relevant” information and to allow them to provide credible testimony at trial.
Hendrickson again objected, asserting that there had been “no material developments in this case
since” the first motion to compel. She also asserted that relators had not had Dr. Jorgensen
review her medical records, had not deposed her doctors, and had not shown “extenuating
factors” that might call for an examination. Relators, she argued, had shown “no specified need
for the independent examination other than general fact finding.”
The trial court held a telephonic hearing on relators’ second motion.2 Relators
explained that they had waited to refile their motion until after Hendrickson was deposed and
that there were “multiple pages of her inability to talk about her medical care.” Hendrickson
2
The hearing was held via video conference due to COVID-19. See Second Amended
Emergency Order Regarding COVID-19, Travis County Civil & Family Courts, Admin. File No.
GN-61-121012, signed and filed May 7, 2020.
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clarified that she would not seek damages related to mental suffering, stating, “[T]here is no
mental claim in this case so that whole portion [of the motion to compel] should be moot.”
Hendrickson also stated that she would redact from her life-care plan anything “that might touch
on” mental suffering or damages. Hendrickson further objected to relators seeking to compel
Hendrickson to undergo an examination by Dr. Jorgensen, whose office is in San Antonio, and
asked that, if an examination was ordered, it be held in Austin. Relators responded that
Hendrickson’s expert who prepared her life-care plan was in Minnesota and “not even licensed
in the State of Texas,” stating, “I’m only asking her to come down [I-35]. Their expert is across
the United States.” After taking the matter under advisement, the trial court signed an order in
September denying relators’ motion. This original proceeding followed.
DISCUSSION
We may grant mandamus relief only when a relator shows that the trial court
abused its discretion and that no adequate appellate remedy exists. In re H.E.B. Grocery Co.,
492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). A “clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of discretion.” Id. (quoting
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). “We will disturb the trial court’s decision
only if it amounts to a clear and prejudicial error of law, or if it fails to correctly analyze or apply
the law to the facts.” Id. at 302-03. Thus, the relator has the burden of establishing “that the trial
court could have reasonably reached only one conclusion.” Id. at 303.
The rules of civil procedure set out the method for obtaining a court-ordered
medical examination. See Tex. R. Civ. P. 204.1; H.E.B., 492 S.W.3d at 303; In re Savoy, 607
S.W.3d 120, 125 (Tex. App.—Austin 2020, orig. proceeding). The movant must establish
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(1) “good cause” for the examination and (2) that the opposing party’s mental or physical
condition “is in controversy.” Tex. R. Civ. P. 204.1(c); H.E.B., 492 S.W.3d at 303. “These
requirements cannot be satisfied ‘by mere conclusory allegations of the pleadings—nor by mere
relevance to the case.’” H.E.B., 492 S.W.3d at 303 (quoting Coates v. Whittington, 758 S.W.2d
749, 751 (Tex. 1988)).
In Dr. Jorgensen’s affidavit, on which relators relied to establish their right to a
physical examination, he stated that he had been retained to evaluate Hendrickson’s alleged
spinal injuries, “including the existence, cause, nature, extent, and proper treatment,” and to
evaluate her “level of function/impairment, course of past medical treatment, necessity of the
previous and recommended future treatment, including surgery, and her prognosis.” Dr.
Jorgensen stated that he had reviewed “all of the medical records made available” to him and
that, “to provide a more comprehensive analysis,” he wanted to perform a “physical orthopedic
examination of” Hendrickson’s neck and back. Such an examination, he averred, would provide
“clinical data relevant to determining the existence, nature, extent, and proper medical treatment”
and would allow him to address Hendrickson’s “physical restrictions and how those might
impact her ability to perform her post-accident activities of daily living and/or employment.” Dr.
Jorgensen stated that he wanted “to make my own findings” about Hendrickson’s “medical
condition, level of physical ability, impairment, and need for surgery or other medical treatment
for her alleged cervical and lumbar injuries” and that an independent examination “is the only
way for me to directly observe [the patient] and obtain my own clinical data and findings.”
Finally, Dr. Jorgensen averred that a physical examination would allow him to “determine if the
alleged need for a cervical surgery in the past and any additional future surgeries were/are
medically necessary and beneficial to the patient.” He stated that his examination would “not be
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unnecessarily or unduly intrusive, invasive or uncomfortable” and that “[m]ost patients do not
complain of any pain or discomfort” as a result of the proposed examination.
The purpose behind the good-cause requirement in rule 204.1(c) “is to balance the
movant’s right to a fair trial and the other party’s right to privacy.” Id. Thus, the movant must
“show that the requested examination is relevant to issues in controversy and will produce or
likely lead to relevant evidence,” “establish a reasonable nexus between the requested
examination and the condition in controversy,” and “demonstrate that the desired information
cannot be obtained by less intrusive means.” Id. Hendrickson conceded in the trial court that her
physical condition is in controversy and that “the requested examination is relevant to the issues
in controversy in so far as there is a reasonable nexus between the injuries in controversy and the
examination sought.” See Tex. R. Civ. P. 204.1(c). She disagreed as to whether the sought
physical examination was “warranted at this time” and whether the desired information could be
obtained by less intrusive means.
Hendrickson did not dispute that the sought examination has a reasonable nexus
to the issues in controversy—the nature, extent, and cause of Hendrickson’s injuries—and
relators explained that, after reviewing the medical records, Dr. Jorgensen still needed to conduct
his own examination. Dr. Jorgensen explained why his own observations were important, albeit
in no great detail, stating the examination would allow him to assess the existence, cause, and
extent of Hendrickson’s alleged injuries, as well as the efficacy of the treatment proposed by her
doctors, the level of impairment caused by her injuries, and the impact of that impairment on her
daily life. Relators noted that Hendrickson had been deposed and had only been able to give
vague answers about her condition and the recommended treatments. We hold that relators
established that an examination would provide relevant information and was warranted. See
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H.E.B., 492 S.W.3d at 303 (proposed physical examination would provide relevant information
about plaintiff’s “physical health—his past, present, and future injuries related to the fall and
other causes”); Savoy, 607 S.W.3d at 126 (examination would seek information about history of
plaintiff’s “present problems” and evaluation of his “motor and sensory status, gait, balance,
coordination, reflexes, and ranges of motion”).
As for whether relators established that the desired information cannot be
obtained through less intrusive means, Hutchinson has been examined by her own experts, whom
she intends to call as witnesses to prove her injuries and treatment needs, and relators explained
that they sought the same opportunity for their expert. See Savoy, 607 S.W.3d at 126; see also
H.E.B., 492 S.W.3d at 303-04 (plaintiff intended to prove causation and damages through expert
testimony, plaintiff’s expert had already examined him, “HEB merely seeks to allow its
competing expert the same opportunity,” and requiring HEB’s expert to testify at trial without
having examined plaintiff would put him “at a distinct disadvantage because it allows Rodriguez
to call into question his credibility in front of the jury”). Relators showed that the examination
was necessary for Dr. Jorgensen to provide relevant, credible testimony, and his ability to
conduct a physical examination “goes to the heart of [relators’] defense strategy.” See Savoy,
607 S.W.3d at 126. We hold that relators established good cause for a physical examination
under rule 204.1(c).
We cannot hold the same as to relators’ request for a mental examination.
Hendrickson stated that she would not seek any damages or raise any claims related to any
mental effects from the accident and that she would remove or redact all references to mental
suffering or the like from her life-care plan. As the trial court observed, “[I]f they’re not seeking
any mental anguish and they are not seeking any recovery for any mental health concerns past or
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future, it would seem to be a moot issue.” Hendrickson’s medical records, prepared by her own
experts, contain references to possible pain magnification, and relators can question her doctors
on their opinions as to such issues. We hold that the trial court did not abuse its discretion in
denying relators’ motion to compel a mental examination.
Hendrickson argues that relators are barred by laches from obtaining mandamus
relief. She argues that relators could have sought mandamus relief from the first denial of their
motion to compel an examination,3 that her deposition occurred shortly after the denial of
relators’ first motion and thus cannot explain relators’ delay in filing their second motion, and
that the second motion “is essentially a motion for rehearing.” Hendrickson contends that
“[t]here is no good explanation” for relators’ three-month delay in seeking reconsideration and
that relators’ waiting three months to renew their request should be considered sufficient to deny
mandamus relief based on laches. However, Hendrickson argued in her opposition to the first
motion to compel that the motion was premature, noting that Dr. Jorgensen had not yet reviewed
her medical records or her experts’ testimony. Further, the COVID-19 pandemic intervened,
throwing the courts into an unexpected limbo for several months. We decline to hold that
waiting three months, while the COVID-19 pandemic unfolded and during which time Dr.
Jorgensen received Hendrickson’s medical records for review, was unreasonable or should bar
relators from obtaining mandamus relief.
CONCLUSION
Although we recognize that this may be a close case and that the trial court clearly
undertook a deliberative and careful consideration of the matter, we have held that relators
3 Hendrickson also asserts that relators “did not even ensure that an order reflecting [the
first] denial of their motion was signed and filed so as to preserve the issue for appeal.”
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established good cause for the proposed examination. Thus, the trial court should have granted
the motion to compel a physical examination, and the supreme court has explained that appeal
may be inadequate to remedy the improper denial of a Rule 204.1 motion to compel a physical
examination. See H.E.B., 492 S.W.3d at 304-05 (“HEB seeks to allow its expert the same
opportunity as Rodriguez’s expert to fully develop and present his opinion, ensuring a fair trial.
Without that opportunity, HEB lacks an adequate appellate remedy.”). Relators similarly have
no adequate remedy by appeal. See id.; Savoy, 607 S.W.3d at 127. We therefore conditionally
grant relators’ petition for writ of mandamus in part and direct the trial court to withdraw its
order denying relators’ motion to compel a physical examination and to grant that portion of the
motion. Writ will issue only if the district court fails to comply. We deny all other relief.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Filed: January 28, 2021
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