In Re First Transit, Inc. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 23, 2024
• Docket: 01-23-00619-CV
• Status: Published

Opinion

Opinion issued April 23, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00619-CV ——————————— IN RE FIRST TRANSIT, INC., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator First Transit, Inc. seeks mandamus relief concerning the trial court’s

April 25, 2023 order denying its motion for medical examinations of real party in

interest Stephon Gladney by relator’s experts.1 We conditionally grant the petition

in part and deny it in part.

1 The underlying case is Stephon Gladney v. Gwendolyn Neveu and First Transit, Inc., cause number 2022-12656, pending in the 189th District Court of Harris County, Texas, the Honorable Tamika Craft presiding. This mandamus arises from a personal injury lawsuit in which real party in

interest Stephon Gladney sued relator First Transit, Inc. and Gwendolyn Neveu for

injuries received in a collision between a bus and the lift carriage in which Gladney

was working. Gladney alleged that on September 30, 2020, he was working on a

traffic light for the City of Houston in a City of Houston truck on a lift carriage

secured by a harness. Gladney alleges that Neveu, the driver of the bus, made a right

turn onto Houston Avenue and hit the truck Gladney was in, which propelled him to

the front of the lift carriage. Gladney claims that Neveu was in the course and scope

of employment with First Transit, the motor carrier owner of the bus, and was

inattentive and failed to exercise reasonable care.

First Transit requested that Gladney submit to examinations by First Transit’s

retained experts, but Gladney refused. First Transit then filed a motion to compel

Gladney to submit to medical examinations related to his orthopedic and

neurological injuries. In the motion, First Transit asserted that Gladney had received

treatment in October 2021, including a laminectomy and discectomy, at L5-S1 from

Dr. Jeffrey Reuben, an orthopedic surgeon. First Transit also asserted that Gladney

made a claim for workers’ compensation and saw another doctor, Dr. Richard Lutz,

who reviewed Gladney’s medical records in connection with the workers’

compensation claim. Finally, relator noted that Gladney had seen Dr. Cabe Owens,

2 a physician clinical neurophysiologist, who began treatment on November 20, 2020

and diagnosed Gladney with diffuse traumatic brain injury.

First Transit asked the trial court to compel Gladney to submit to an

examination by its designated neurology expert, Dr. Steven Lovitt, M.D., a

neurologist, who had reviewed Gladney’s medical records and submitted an affidavit

concerning the need to perform in-person testing for possible cognitive disorders.

First Transit also asked for an orthopedic examination by its expert, Dr. R. Alexander

Mohr, M.D., an orthopedic surgeon, who at the time of the hearing had not yet been

designated as an expert.

After a hearing, the trial court denied the motion to compel.

Standard of Review

To show entitlement to mandamus relief, a relator must show that the trial

court abused its discretion and that there is no adequate remedy by appeal. See In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 125–26 (Tex. 2004) (orig. proceeding).

To establish that the trial court abused its discretion, a relator must show that the

trial court reached “a decision so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

As to the resolution of factual issues or matters committed to the trial court’s

discretion, we may not substitute our judgment for the trial court’s unless relator

3 establishes that the trial court could reasonably have reached only one decision. In

re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding).

Availability of Independent Medical or Mental Examinations

First Transit asserts that the trial court abused its discretion in denying the

motion to compel an independent examination of Gladney by First Transit’s medical

experts. To request a physical or mental examination of a party, the movant must

establish “good cause” for the examination and that the mental or physical condition

of the party “is in controversy.” In re H.E.B. Groc. Co., L.P., 492 S.W.3d 300, 303

(Tex. 2016) (orig. proceeding) (citing to TEX. R. CIV. P. 204.1). The United States

Supreme Court has held that these two requirements are not satisfied “by mere

conclusory allegations of the pleadings—nor by mere relevance to the case.”

Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964); see also Coates v. Whittington,

758 S.W.2d 749, 751 (Tex. 1988). “The purpose of Rule 204.1’s good-cause

requirement is to balance the movant’s right to a fair trial and the other party’s right

to privacy.” H.E.B. Groc., 492 S.W.3d at 303.

To show good cause, the movant must show the following:

(1) show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence,

(2) establish a reasonable nexus between the requested examination and the condition in controversy, and

4 (3) demonstrate that the desired information cannot be obtained by less intrusive means. Id.

First Transit asserts in its petition that Gladney placed his condition “in

controversy” and First Transit had established good cause for the requested exams.

In response, Gladney argues that relator failed to establish good cause but a review

of his response indicates that Gladney is only challenging whether the information

could be obtained by less intrusive means. This element “addresses whether the

desired information ‘is required to obtain a fair trial and therefore necessitates

intrusion upon the privacy of the person he seeks to have examined.’” In re Offshore

Marine Contractors, Inc., 496 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.]

2016, orig. proceeding) (quoting Coates, 758 S.W.2d at 753). If the movant may

obtain the same information by deposing the opponent’s physicians or by reviewing

existing expert reports or medical records, the relator is unable to demonstrate that

it cannot obtain the desired information through less intrusive means. See id.

Because courts must attempt to balance the movant’s right to a fair trial and the

opponent’s right to privacy, we must evaluate the adequacy of the less intrusive

measures “in light of the fair trial standard.” In re Ten Hagen Excavating, Inc., 435

S.W.3d 859, 870 (Tex. App.—Dallas 2014, orig. proceeding).

5 In Offshore Marine, a panel of this Court granted mandamus relief to vacate

the trial court’s denial of Offshore Marine Contractor’s (OMC) motion to allow its

retained neuropsychological expert to examine the plaintiff. 496 S.W.3d at 798, 804.

Our court found that, just as the Dallas court found in Ten Hagen, OMC’s expert

offered a detailed explanation of why he could not confidently rely on the plaintiff’s

previous examinations or medical records. Id. at 801. OMC’s expert stated that

plaintiff’s expert’s findings were “inconsistent with typical symptoms of concussion

and there are indications of test score errors and possible misrepresentations by

[plaintiff] of his symptoms.” Id. at 801. Thus, the Court held that OMC had “met

its burden of showing that the fair-trial standard for measuring the adequacy of the

alternative means of obtaining the information could not be satisfied by deposing

Pollock and Tilton [plaintiff’s experts] or by reviewing their records.” Id. at 801–

02.

A. Dr. Lovitt

Attached to its motion to compel, First Transit included an affidavit from its

neurology expert, Dr. Lovitt. Attached were Gladney’s medical records which Dr.

Lovitt had reviewed with a report concerning his review. Lovitt concluded that no

physician had performed proper neurocognitive testing, and the testing that was

performed was not the appropriate type of testing to diagnose a cognitive disorder.

Dr. Lovitt noted that Gladney’s physician had performed computerized testing and

6 EEG=Evoked Potential Testing that, according to Dr. Lovitt were “not true

neuropsychiatric testing.” Dr. Lovitt stated: “No cognitive disorder can be

confirmed without performing in-person cognitive testing.” Because no in-person

cognitive testing had been performed, Dr. Lovitt concluded that the testing shown

by Gladney’s medical records could not support a diagnosis of cognitive disorder.

This indicates that a review of the medical records would not supply the desired

information and, if the records could not supply that information, neither could a

deposition of any of these physicians.

This evidence supports a finding that First Transit met its burden of

“demonstrating that the fair-trial standard for measuring the adequacy of the

alternative means of obtaining the information could not be satisfied by deposing

[Gladney’s providers] or by reviewing their records.” Id. at 801–02; see also H.E.B.

Groc., 492 S.W.3d at 304 (HEB met burden of showing information its medical

expert needed could not be obtained by reviewing records of plaintiff’s expert); In

re Transwestern Pub. Co., L.L.C., 96 S.W.3d 501, 507 (Tex. App.—Fort Worth

2002, orig. proceeding) (relator established that deposing plaintiff’s expert would

not permit relator to make its own analysis of plaintiff’s mental anguish or

effectively challenge plaintiff’s expert’s opinions).

Gladney assails Dr. Lovitt’s report, stating that it merely concluded that the

treatment of Gladney was not reasonable and was excessive, but the affidavit states

7 that it concerns “billing records and medical care and treatment of Stephon

Gladney.” Although Dr. Lovitt stated that the “care and treatment rendered to

Stephon Gladney was not reasonable and necessary and was in fact, excessive,” he

also states that his report attached as “Exhibit A” details his opinions and

impressions. His report lists all the medical records he reviewed, with an in-depth

description of each, and his conclusions that the testing did not support a cognitive

injury. Dr. Lovitt asserted that appropriate in-person testing was not done, and he

listed tests that should have been, but were not performed to assess cognition.

In its motion to compel, First Transit argued that, without the opportunity to

personally examine Gladney, Dr. Lovitt would be at a distinct disadvantage and

would be unable to make his own observations and explore matters not covered in

Gladney’s physician’s examinations. We conclude that First Transit provided

sufficient proof to establish it would be unable to obtain the same information by a

review of the medical records or by deposing the physicians. See In re Advanced

Powder Solutions, Inc., 496 S.W.3d 838, 851 (Tex. App.—Houston [1st Dist.] 2016,

orig. proceeding) (holding that expert was unable to obtain information less

intrusively because plaintiff’s expert had based his four-page report and conclusions

on his own examination of plaintiff and review of other medical records or a

deposition of this expert would not suffice as substitute). Accordingly, First Transit

8 has established that the trial court abused its discretion in denying relator’s motion

to compel an independent examination by Dr. Lovitt.

B. Dr. Mohr

First Transit also sought an independent orthopedic examination by Dr. Mohr,

but the record before the trial court does not support entitlement to mandamus relief.

Gladney complains that First Transit “never provided the court the analysis of Dr.

Mohr regarding the need for physical exam of Mr. Gladney.” The motion to compel

contains Dr. Mohr’s curriculum vitae but no affidavit by Dr. Mohr detailing the need

for an independent orthopedic examination nor why a review of the records or

deposition of Gladney’s orthopedic physician would not be sufficient. The

attachments to First Transit’s motion to compel include a report by Dr. Richard A.

Lutz, which may have been created in connection with a workers’ compensation

claim. This report states that Gladney had a prior history of lumbar degenerative

disc disease and spondylosis unrelated to the work injury and that the objective

clinical findings showed that the accident did not accelerate, aggravate, or otherwise

temporarily or permanently worsen this pre-existing condition. Although these

records raise a concern about Gladney’s alleged orthopedic injury, the lack of an

affidavit by Dr. Mohr explaining the need for an independent orthopedic

examination and the inability to obtain this information from the medical records or

deposition of Gladney’s physician supports the trial court’s ruling. We cannot say

9 that the trial court could have reached only one decision and thus, abused its

discretion in denying the motion to compel as to an examination by Dr. Mohr. See

In re Sanchez, 571 S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2018, orig.

proceeding) (considering record before trial court when it denied motion to compel,

relators did not establish trial court abused its discretion in denying motion to compel

physical examination of plaintiff).

First Transit lacks an adequate remedy by appeal

Generally, a party who is improperly denied discovery will not have an

adequate remedy by appeal “(1) when the appellate court would not be able to cure

the trial court’s discovery error; (2) where the party’s ability to present a viable claim

or defense at trial is vitiated or severely compromised by the trial court’s discovery

error; and (3) where the trial court disallows discovery and the missing discovery

cannot be made a part of the appellate record or the trial court, after proper request,

refuses to make it part of the record.” Ten Hagen, 435 S.W.3d at 863 (citing In re

Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007) (orig. proceeding)). When

the denial of discovery prevents a party from developing essential elements of its

claim or defense, it goes to the heart of a party’s case. See Able Supply Co. v. Moye,

898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding). The adequacy of the remedy

by appeal is based on a “‘balancing [of] the benefits and detriments of mandamus.’”

10 Offshore Marine Contr., 496 S.W.3d at 804 (quoting H.E.B. Groc. Co., 492 S.W.3d

at 304).

Although there may be situations in which a party might be able to develop

and present a viable defense even if denied a medical examination, this is not the

case here. Dr. Lovitt has reviewed all of the medical records and has determined

that, in his professional opinion, improper testing has been done regarding any

alleged neurocognitive injuries and that to determine the extent and necessary care

for any such injuries, he would need to examine Gladney and perform proper testing.

Thus, under the facts of this case, the inability to conduct an independent

examination both severely compromises First Transit’s ability to develop a defense

to Gladney’s claims but will also deny this Court the ability to properly evaluate the

effect of the trial court’s ruling on appeal. See Ten Hagen, 435 S.W.3d at 864;

Offshore Marine Contr., 496 S.W.3d at 804. Therefore, we conclude that First

Transit lacks an adequate remedy by appeal of the trial court’s denial of the motion

to compel.

Conclusion

Having determined that the trial court abused its discretion in denying First

Transit’s motion to compel an examination by Dr. Lovitt, we conditionally grant

First Transit’s petition for writ of mandamus, in part, and order the trial court to

(1) vacate its April 25, 2023 order denying the motion to compel, and (2) grant the 11 motion to compel an examination by Dr. Lovitt. We deny the petition for writ of

mandamus concerning the trial court’s denial of the motion to compel an

examination by Dr. Mohr. The writ will issue only if the trial court refuses to do so.

PER CURIAM

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.