Opinion issued July 18, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00383-CV ——————————— IN RE KIRBY INLAND MARINE, LP, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
This original proceeding arises from a Jones Act case in which real party in
interest Rodrick Benson seeks damages for physical and psychological injuries
incurred while in the course and scope of employment for relator Kirby Inland
Marine.* Although Benson’s neuropsychologist performed a two-day examination
* The underlying case is Rodrick Benson v. Kirby Inland Marine, LP, cause number 2017-29148, pending in the 61st District Court of Harris County, Texas, the Honorable Fredericka Phillips, presiding. that included a battery of tests, the trial court denied Kirby’s request for its
neuropsychologist to perform a 6.5-hour evaluation with no duplicative testing.
Instead, the trial court limited Kirby’s examination to two hours and required
advance disclosure of the tests its expert planned to administer. Kirby contends that
by so doing, the trial court abused its discretion. We conditionally grant relief.
Background
Claiming both physical and psychological injuries from exposure to ammonia
gas, Rodrick Benson was examined by neuropsychologist Dr. Larry Pollock over a
two-day period. The examination included 28 neuropsychological tests and
additional cognitive assessments. Dr. Pollock identified a number of
neuropsychological deficits and concluded that Benson suffered three significant
impairments: major depressive disorder, post-traumatic stress disorder (PTSD), and
major neurocognitive disorder. Dr. Pollock recommended long-term treatment and
rehabilitation, and he concluded that Benson’s impairments would be progressive,
requiring “lifelong medical care.”
Kirby sought an independent neuropsychological examination by Dr. David
Price that would require approximately 6.5 hours to perform. Kirby agreed that
Dr. Price would not perform tests duplicative of those already performed by
Dr. Pollock. Benson ultimately agreed to the examination, but he requested
“reasonable limits” of a two-hour testing period and advance disclosure of the tests
2 to be performed. Kirby opposed these limitations, but the trial court issued an order
imposing them.
Kirby filed a motion for reconsideration, attaching an affidavit from Dr. Price
which explained that the time restriction essentially would prevent him from
performing an effective evaluation of the disorders diagnosed by Dr. Pollock.
Dr. Price also stated that assessment of these disorders would require administration
of multiple tests, some of which take two hours to administer. Finally, Dr. Price
urged the court not to require advance disclosure of the tests as it could permit
Benson to anticipate and prepare for them, which could skew the results. The trial
court signed an order denying the motion for reconsideration.
Analysis
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its
discretion if its actions are made “without reference to any guiding rules and
principles” or are “arbitrary or unreasonable.” Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “A trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts,” and a clear failure to
“analyze or apply the law correctly” is an abuse of discretion. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992).
3 Requests for a physical or mental examination of an adverse party are
governed by Rule 204.1. A trial court may issue an order for a psychological
examination “when the party responding to the motion has designated a psychologist
as a testifying expert or has disclosed a psychologist’s records for possible use at
trial.” TEX. R. CIV. P. 204.1(c). The movant must show that the party’s condition is
in controversy and that there is good cause for the evaluation. See In re H.E.B. Groc.
Co., L.P., 492 S.W.3d 300, 303 (Tex. 2016) (per curiam); In re Advanced Powder
Sols., Inc., 496 S.W.3d 838, 848 (Tex. App.—Houston [1st Dist.] 2016, orig.
proceeding). The good-cause requirement requires a court to balance the movant’s
right to a fair trial and the opposing party’s right to privacy. See In re H.E.B., 492
S.W.3d at 303. To show good cause for the examination, a movant must:
(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 (3) demonstrate that the desired information cannot be obtained by less intrusive means.
Id.
Kirby addressed each of these requirements in its Rule 204.1 motion. Benson
did not dispute that his psychological and cognitive condition was in controversy.
Instead, he challenged the intrusiveness of the testing and requested two limitations
the trial court ultimately imposed—a two-hour time period for the examination and
advance notice of the tests to be administered. 4 Kirby stated in its motion, and reiterates here, that its proposed testing
conditions were the least intrusive means to obtain the information it needed.
Dr. Price agreed not to repeat tests already conducted by Dr. Pollock and stated that
6.5 hours of testing would be necessary to perform a standard neuropsychological
evaluation. In its motion for reconsideration and in its mandamus petition, Kirby has
asserted that the time and advance-notice limitations imposed by the trial court are
an abuse of discretion because they are unreasonable in light of the proof presented,
and they essentially preclude Dr. Price from performing a valid, standard
neuropsychological assessment.
Benson responds that because Kirby failed to state what tests would be
performed, it had no support for its request for a 6.5-hour testing period. Moreover,
he argues that without knowing the tests Dr. Price would perform, “the trial court
was unable to determine whether the secret tests were previously conducted, whether
they were the substantial equivalent of tests that were already performed, or whether
they were even necessary in the first place.”
Benson’s arguments in support of the trial court’s order are similar to those
raised by the plaintiff in In re Offshore Marine Contractors, Inc., 496 S.W.3d 796
(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). In that case, the plaintiff
claimed that the defendant failed to meet its burden to show why additional
neuropsychological testing was necessary, given that the plaintiff already had
5 undergone lengthy neuropsychological testing by his own expert and repeat testing
could lead to invalid results. See id. at 800. This court found it was an abuse of
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Opinion issued July 18, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00383-CV ——————————— IN RE KIRBY INLAND MARINE, LP, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
This original proceeding arises from a Jones Act case in which real party in
interest Rodrick Benson seeks damages for physical and psychological injuries
incurred while in the course and scope of employment for relator Kirby Inland
Marine.* Although Benson’s neuropsychologist performed a two-day examination
* The underlying case is Rodrick Benson v. Kirby Inland Marine, LP, cause number 2017-29148, pending in the 61st District Court of Harris County, Texas, the Honorable Fredericka Phillips, presiding. that included a battery of tests, the trial court denied Kirby’s request for its
neuropsychologist to perform a 6.5-hour evaluation with no duplicative testing.
Instead, the trial court limited Kirby’s examination to two hours and required
advance disclosure of the tests its expert planned to administer. Kirby contends that
by so doing, the trial court abused its discretion. We conditionally grant relief.
Background
Claiming both physical and psychological injuries from exposure to ammonia
gas, Rodrick Benson was examined by neuropsychologist Dr. Larry Pollock over a
two-day period. The examination included 28 neuropsychological tests and
additional cognitive assessments. Dr. Pollock identified a number of
neuropsychological deficits and concluded that Benson suffered three significant
impairments: major depressive disorder, post-traumatic stress disorder (PTSD), and
major neurocognitive disorder. Dr. Pollock recommended long-term treatment and
rehabilitation, and he concluded that Benson’s impairments would be progressive,
requiring “lifelong medical care.”
Kirby sought an independent neuropsychological examination by Dr. David
Price that would require approximately 6.5 hours to perform. Kirby agreed that
Dr. Price would not perform tests duplicative of those already performed by
Dr. Pollock. Benson ultimately agreed to the examination, but he requested
“reasonable limits” of a two-hour testing period and advance disclosure of the tests
2 to be performed. Kirby opposed these limitations, but the trial court issued an order
imposing them.
Kirby filed a motion for reconsideration, attaching an affidavit from Dr. Price
which explained that the time restriction essentially would prevent him from
performing an effective evaluation of the disorders diagnosed by Dr. Pollock.
Dr. Price also stated that assessment of these disorders would require administration
of multiple tests, some of which take two hours to administer. Finally, Dr. Price
urged the court not to require advance disclosure of the tests as it could permit
Benson to anticipate and prepare for them, which could skew the results. The trial
court signed an order denying the motion for reconsideration.
Analysis
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its
discretion if its actions are made “without reference to any guiding rules and
principles” or are “arbitrary or unreasonable.” Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “A trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts,” and a clear failure to
“analyze or apply the law correctly” is an abuse of discretion. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992).
3 Requests for a physical or mental examination of an adverse party are
governed by Rule 204.1. A trial court may issue an order for a psychological
examination “when the party responding to the motion has designated a psychologist
as a testifying expert or has disclosed a psychologist’s records for possible use at
trial.” TEX. R. CIV. P. 204.1(c). The movant must show that the party’s condition is
in controversy and that there is good cause for the evaluation. See In re H.E.B. Groc.
Co., L.P., 492 S.W.3d 300, 303 (Tex. 2016) (per curiam); In re Advanced Powder
Sols., Inc., 496 S.W.3d 838, 848 (Tex. App.—Houston [1st Dist.] 2016, orig.
proceeding). The good-cause requirement requires a court to balance the movant’s
right to a fair trial and the opposing party’s right to privacy. See In re H.E.B., 492
S.W.3d at 303. To show good cause for the examination, a movant must:
(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 (3) demonstrate that the desired information cannot be obtained by less intrusive means.
Id.
Kirby addressed each of these requirements in its Rule 204.1 motion. Benson
did not dispute that his psychological and cognitive condition was in controversy.
Instead, he challenged the intrusiveness of the testing and requested two limitations
the trial court ultimately imposed—a two-hour time period for the examination and
advance notice of the tests to be administered. 4 Kirby stated in its motion, and reiterates here, that its proposed testing
conditions were the least intrusive means to obtain the information it needed.
Dr. Price agreed not to repeat tests already conducted by Dr. Pollock and stated that
6.5 hours of testing would be necessary to perform a standard neuropsychological
evaluation. In its motion for reconsideration and in its mandamus petition, Kirby has
asserted that the time and advance-notice limitations imposed by the trial court are
an abuse of discretion because they are unreasonable in light of the proof presented,
and they essentially preclude Dr. Price from performing a valid, standard
neuropsychological assessment.
Benson responds that because Kirby failed to state what tests would be
performed, it had no support for its request for a 6.5-hour testing period. Moreover,
he argues that without knowing the tests Dr. Price would perform, “the trial court
was unable to determine whether the secret tests were previously conducted, whether
they were the substantial equivalent of tests that were already performed, or whether
they were even necessary in the first place.”
Benson’s arguments in support of the trial court’s order are similar to those
raised by the plaintiff in In re Offshore Marine Contractors, Inc., 496 S.W.3d 796
(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). In that case, the plaintiff
claimed that the defendant failed to meet its burden to show why additional
neuropsychological testing was necessary, given that the plaintiff already had
5 undergone lengthy neuropsychological testing by his own expert and repeat testing
could lead to invalid results. See id. at 800. This court found it was an abuse of
discretion to deny the defendant’s request to conduct neuropsychological testing. A
need for an examination to obtain a fair trial was shown when the plaintiff would
use expert testimony to prove causation and damages, the defense requested the
same opportunity for evaluation as the plaintiff’s expert had, and the evaluation was
necessary to its defense. See id. at 803 (citing In re H.E.B., 492 S.W.3d at 303–04).
Despite Kirby’s agreement to limit the time and scope of the examination, the
trial court imposed two limitations that, according to Dr. Price, essentially deny
Kirby’s right to an evaluation. In support of this conclusion, Kirby showed the
following: (1) the two-hour time limit would essentially prevent Dr. Price from
performing a standard neuropsychological examination, thereby limiting the
information available to him and the conclusions he could draw; (2) the two-hour
time limit would prevent him from rendering a diagnosis on each of Dr. Pollock’s
diagnoses because relating almost six thousand pages of medical and legal records
to Benson’s conditions could not be done in two hours; (3) a single test of
psychopathology takes two hours to administer; (4) a psychopathology test, such as
the one performed by Dr. Pollock, could be affected by attitude, but is not influenced
by a “practice effect”; (5) Dr. Pollock administered only one test to assess PTSD and
none of the tests he administered are ones recommended by the National Center for
6 PTSD; (6) Dr. Pollock’s diagnosis of major depressive disorder requires further
assessment because depression can be both a symptom of other mental disorders and
an independent disorder; (7) lack of forewarning of tests to be administered is
important to measure motivation and malingering; and (8) the American Academy
of Clinical Neuropsychology contradicts Benson’s claim of “practice effect” from
repeat neuropsychological testing.
Although a trial court must specify the time and scope of testing, TEX. R. CIV.
P. 204.1(d), “when a party asserts a physical or mental condition as part of a claim
or defense, a trial court must be careful not to prevent the development of medical
testimony that would allow the opposing party to fully investigate the conditions the
party asserting the existence of the condition has placed in issue.” In re Ten Hagen
Excavating, Inc., 435 S.W.3d 859, 867 (Tex. App.—Dallas 2014, orig. proceeding);
see also Sherwood Lane Assocs. v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—
Houston [1st Dist.] 1990, orig. proceeding). If the “intended examination is not
intrusive, invasive or unnecessarily physically uncomfortable,” parties may explore
matters not addressed by its opponent’s examinations, make observations, and
attempt to discover facts contradictory to the opinions of the opposing expert. In re
Advanced Powder Sols., 496 S.W.3d at 851; see Offshore Marine Contractors, 496
S.W.3d at 802–03.
7 Dr. Pollock conducted a battery of 28 neuropsychological tests over a two-
day period, reaching multiple diagnoses that were based on his in-depth examination
of Benson. Under these circumstances, fundamental fairness dictates that Kirby’s
expert be allowed to conduct a standard neuropsychological evaluation or it “will be
at a severe disadvantage in the battle of experts.” In re Advanced Powder Sols., 496
S.W.3d at 851.
Because the time and advance notice limitations imposed by the trial court
deny Kirby the ability to conduct a full evaluation, the limitations violate
fundamental fairness and the fair-trial standard, and therefore constitute an abuse of
discretion. See id. at 851; Offshore Marine Contractors, 496 S.W.3d at 802–03.
To be entitled to mandamus relief, Kirby also must establish that it lacks an
adequate remedy by appeal. See Prudential, 148 S.W.3d at 135. In the discovery
context, an appellate remedy is not adequate if:
(1) the appellate court would not be able to cure the trial court’s error on appeal; (2) the party’s ability to present a viable claim or defense is vitiated or severely compromised; or (3) missing discovery cannot be made a part of the appellate record.
In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding). The
adequacy of the appellate remedy “is determined by balancing the benefits and
detriments of mandamus.” In re H.E.B., 492 S.W.3d at 304.
8 There is no adequate appellate remedy when a defendant is denied the
opportunity for its expert to fully develop his opinion. See id.; Ten Hagen, 435
S.W.3d at 864 (concluding there was no adequate remedy by appeal because denial
of request for independent medical examination not only compromised defendant’s
ability to defend itself, but also prevented appellate court from being able to evaluate
trial court error on appeal). The limitations imposed by the trial court have been
shown to prevent Kirby’s expert from performing a standard neuropsychological
assessment, and thus the limitations essentially deny him the opportunity to fully
develop his opinion and diagnoses. Moreover, these limitations prevent Kirby from
effectively challenging Benson’s experts. See H.E.B., 492 S.W.3d at 304. A fair trial
is ensured only if the defendant’s expert has “the same opportunity as [the opposing
party’s expert] to fully develop and present his opinion.” Id. at 304. And without that
evidence, an appellate court is unable to evaluate the effect of the trial court’s error.
See Walker, 827 S.W.2d at 843; Ten Hagen, 435 S.W.3d at 864. Balancing the
benefits with the detriments of granting mandamus relief, the limitations imposed
by the trial court will unreasonably hamper Kirby’s ability to present a defense and
to challenge Benson’s expert witness, and therefore appeal would not be an adequate
remedy.
Conclusion
9 Because Kirby has established that the trial court’s limitations on Dr. Price’s
examination are an abuse of discretion for which there is no adequate remedy by
appeal, we conditionally grant mandamus relief and order the trial court to vacate its
order to the extent it limits Dr. Price’s evaluation to a two-hour period and requires
advance disclosure of tests to be administered.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Massengale.