                                 NUMBER 13-19-00064-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


   IN RE THE SOCIETY OF OUR LADY OF THE MOST HOLY TRINITY


                           On Petition for Writ of Mandamus.


                                             OPINION

              Before Justices Benavides, Longoria, and Hinojosa
                        Opinion by Justice Hinojosa1

        In this original proceeding, The Society of Our Lady of the Most Holy Trinity

(Society) contends the trial court 2 abused its discretion by allowing the real party in

interest, Jane Doe, to videotape the psychological examination ordered for Doe pursuant

to Texas Rule of Civil Procedure 204.1. See TEX. R. CIV. P. 204.1 (providing for court-


        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).

        2 This original proceeding arises from trial court cause number 2016CCV-61648-3 in the County

Court at Law No. 3 of Nueces County, Texas, and the respondent is the Honorable Deeanne Galvan. See
TEX. R. APP. P. 52.2.
ordered physical and mental examinations). Society seeks to compel the trial court to

vacate its November 27, 2018 order allowing for Doe’s examination to be recorded by

video and its December 12, 2018 order denying reconsideration of that order. Because

Doe did not meet her burden to show good cause for the examination to be videotaped,

we conditionally grant the petition for writ of mandamus.

                                         I. BACKGROUND

       Doe filed suit against Society and others3 alleging that she was raped and sexually

abused as a child by Stephen Tarlton Dougherty, who was at that time a priest. In 2018,

Dougherty was convicted of raping Doe when she was thirteen years old. He was

sentenced to sixty years of imprisonment. In the present civil lawsuit, Doe alleged, in

part, that Society knew Dougherty was “an admitted child molester” before it ordained him

as a priest and promoted him to the public as a parish priest. Doe asserted that Dougherty

admitted to Society, prior to his ordination, that he had previously sexually abused an

eight-year old boy, R.B. Doe sought damages for past and future medical expenses, pain

and suffering, mental anguish, physical impairment, and lost wages and diminished wage-

earning capacity.

       On September 11, 2018, Society filed a “Motion to Compel an Independent

Medical Examination” of Doe on grounds that she had “alleged past and present severe

physical, emotional and psychological pain and suffering, mental anguish, physical

impairment, medical expenses, and lost wages.” Society requested that Dr. Gabrielle




       3 Doe also filed suit against Stephen Tarlton Dougherty and the Most Reverend W.M. Michael

Mulvey, S.T.L., D.D., as Bishop of the Diocese of Corpus Christi and His Successors in Interest, A
Corporate Sole (the Diocese). The petition for writ of mandamus refers to the Diocese as a “Settled
Defendant.” Neither the Diocese nor Dougherty has filed a response to Society’s petition for writ of
mandamus.

                                                 2
Hobday, a board-certified forensic psychiatrist, perform the examination and prepare a

report regarding the results.

       On September 14, 2018, Doe filed a response to Society’s motion for an

examination alleging, inter alia, that Society had failed to show good cause for the

examination because experts had not yet been designated in the case and Society could

obtain the desired information through less intrusive means. Doe objected to Society’s

request as unreasonable, overly broad, and unduly burdensome, and she argued that the

request failed “to state with specificity the examination(s) sought” and failed “to identify

how the examination(s) sought (which are not identified) are relevant to the issues in

controversy.”

       On September 14, 2018, the trial court held a hearing on Society’s motion to

compel the examination. One of Doe’s counsel stated that he was “not opposed” to the

examination itself but was concerned about the parameters of the proposed examination

and wanted to avoid a “deposition” with “questions wholly outside of the range of things

that should be asked.” The trial court discussed the Coates case and its requirement that

the movant show good cause for the examination and suggested that the examination

should be “narrowly tailored.” Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988)

(orig. proceeding) (establishing the “good cause” test for examinations under former Rule

167, now TEX. R. CIV. P. 204). The trial court ultimately recessed the hearing to allow the

parties to attempt to agree on the location, duration, and parameters of the proposed

examination.




                                             3
        The trial court held a second hearing on Society’s motion to compel an examination

on November 11 or 14, 2018. 4 Society advised the trial court that the parties had not

been able to resolve the outstanding issues pertaining to the examination. Society stated

that Doe’s counsel had requested that (1) Hobday identify in advance the tests that she

would be conducting during the examination, and (2) the examination be videotaped with

a “live video feed” or with an observer present during the examination. Society argued

that these conditions were not supported by the law and noted that Doe’s expert, Dr.

Alexandria H. Doyle, who had examined Doe, 5 was not similarly encumbered in

performing her examination. Society further argued that the examination was necessary

to fully evaluate Doe’s claims and conditions.

        At the hearing, Doe’s counsel appeared to retreat from his former position that he

was “not opposed” to the examination. Doe’s attorneys argued that Society had not met

its burden to show good cause for the examination and argued that Doe was entitled to

know the names of the tests that Hobday would administer. Doe’s counsel further

asserted that Society already had relevant information regarding Doe’s psychological

status in the form of her testimony in the transcripts from Dougherty’s criminal trial and

her medical records. Counsel requested that the trial court order that Doe’s counsel be

permitted to be present at the examination because counsel had previous experience

“where experts go outside of a [c]ourt’s order” and “experts have tried to interview

whoever drove the Plaintiff to the interview session.” Counsel further requested that the

trial court order Society to identify the tests that would be administered during the


        4   The reporter’s record for this hearing includes both dates. This discrepancy is not material to our
analysis.

        5   Doyle is not Doe’s regular treating physician but is an expert retained for purposes of litigation.

                                                        4
examination and to limit the examination to the identified tests “so that all of us have

knowledge of what’s going on.” Counsel argued as follows:

       This is obviously an adverse proceeding. We’re not going to place our
       vulnerable young lady who has been raped in a position where we don’t
       know what’s going on. We want to know what she can expect that day. I
       don’t have to know every word that’s going to be said, but I do want to know
       the tests. I do want to know the framework of what is anticipated so that we
       can make sure that the Court approves of that, finds good cause for it, and
       so we know what is going to take place.

       We ask that only the Plaintiff be examined. That the Plaintiff is not deposed
       during the examination. That the Plaintiff is permitted to request breaks in
       the examination as needed and that a copy of the examiner’s report be
       produced to Plaintiff’s counsel. We’re asking no later than 7 days following
       the examination. And so, if the Defendant’s [sic] can show good cause and
       provide the Court and us with the information as to the type of testing that
       they want to do, meaning the names of the tests and how they anticipate
       this examination to be structured, then we would ask that the Court place
       certain parameters [on] this examination and the Defendant can go forward
       with that.

       In response, Society confirmed that it was seeking a “noninvasive mental

evaluation through an interview” conducted in a “manner customary of a forensic

psychiatrist.” The trial court admitted several exhibits into evidence under seal, including

Doyle’s expert report and Hobday’s curriculum vitae. Society also offered into evidence,

and the trial court admitted under seal, some of Doe’s testimony from Dougherty’s

criminal trial and an excerpt from a police report. Society argued that these exhibits

showed that Doe provided varying accounts of a previous sexual incident and that it

should not have to rely on her “conflicting testimony” regarding the effect of this previous

incident without its own “independent evaluation.”       In the two-page excerpt of the

transcript from the criminal trial, Doe testified that a seventeen or eighteen-year-old

relative exposed himself to her and she went to one counseling session regarding this

incident. The excerpt from the police report appears to concern this same event.

                                             5
        Society contended that opposing counsel’s suggestions that the examination might

effectively constitute a deposition or that Hobday would re-traumatize Doe was

“impugning the professionalism of an expert.” Society stated that it could not agree to

have an observer present during the examination because it could potentially invalidate

the results of the examination. Society further argued that Society and Doe should be on

the “same footing” with respect to the examination and noted that Doe had not provided

it with prior notice that Doyle would be examining Doe or which tests Doyle planned to

administer to Doe. Society pointed out that Doyle’s examination had not been recorded

or videotaped and Society did not have the opportunity to be present at that examination.

Society also alleged that if it had to provide advance descriptions of the tests that were to

be administered by Hobday, Doe might be “prepped or coached” for the examination,

which would invalidate the exam as an analytical tool.

        After extensive discussion, 6 the trial court requested that the parties provide letter

briefs regarding whether Society should be required to disclose in advance the types of

testing to be utilized for the examination and whether a third party could be present for

the observation or whether a recording device such as a “video feed” should be utilized

during the examination.

        By letter brief filed on November 19, 2018, Doe’s counsel requested the trial court

to allow counsel to be present at the examination and to require Society to disclose the

“anticipated tests to be performed during the mental examination” of Doe. Doe discussed




        6 The parties discussed, inter alia, whether this was an “independent” medical examination or a

defense medical examination. Rule 204 does not utilize the term “independent.” TEX. R. CIV. P. 204.
Society conceded that there was “no disagreement on the fact that [it] is retaining this expert and that [it] is
paying the expert.” Society asserted that “substantively, we do need this examination to properly defend
this case.”

                                                       6
several conflicting cases regarding whether an attorney should be allowed to be present

at an examination and asserted that counsel’s presence was required in this case:

       Further, the court should consider the Plaintiff at issue in this case, who was
       raped by Defendant Dougherty, who was sponsored and promoted to the
       priesthood by [Society] and assigned to parishes in Texas and other
       dioceses in the United States [and] whom [Society] represented to others,
       including the public, as being a chaste and sexually safe and . . . moral role
       model for children. Plaintiff was 13 years old when she was raped by
       Dougherty. Dougherty has been sentenced to sixty years in prison due to
       his conduct.

       As noted by Plaintiff’s expert, and contained in the report of Alexandria
       Doyle, Ph.D. (which was presented to the Court and placed under seal)
       regarding behavioral observations of the Plaintiff, Doyle stated, “Her
       thinking was somewhat slow and difficult to follow at times, and it appeared
       that she had to work hard to concentrate on the questions being asked.”
       She goes on to state that, Plaintiff “was cooperative with all procedures
       although by the end of the evaluation, fatigue may have been a factor in her
       test responses.” Plaintiff is a 20[-]year[-]old woman with an 11th grade
       education. She has struggled with learning difficulties in school that
       “became worse over time and she was classified as Special Ed”. She
       experiences anxiety and panic due to the events made the basis of this
       case. She “has crying spells and generally feels emotionally overwhelmed
       and unable to problem solve.” The [s]ymptoms of traumatic stress and a
       pervasive sense of vulnerability have negatively affected [her] functioning.

       Due to the Plaintiff and the events made the basis of this case, as well as
       the fact that this matter is an adversarial proceeding, Plaintiff’s counsel
       should be allowed to be present in the room or by live video feed during the
       mental examination and/or a video camera placed on the Defendant’s
       expert to record the mental examination.

Doe further argued that the trial court should require Society to provide notice regarding

the types of tests to be performed at the examination and contended, in part, that it would

violate her privacy rights not to be provided with this information.

       On November 26, 2018, Society filed a letter brief in opposition to the requests

made by Doe in her letter brief. Society’s letter brief generally provided authority and

argument in support of its contention that the trial court should deny Doe’s requests.



                                             7
       On November 27, 2018, the trial court granted Society’s motion to compel an

examination of Doe under Rule 204.1. The court ordered Doe to submit to a medical

examination by Hobday for a four-hour period, at a location to be agreed upon, and

specified that the manner of examination would be “the usual manner of examination

utilized by the doctor in conducting examinations to determine [the] extent, if any, of

Plaintiff’s injuries at issue in this case.” The trial court’s order defines the scope of the

examination as “an independent mental evaluation by Dr. Gabrielle Hobday to determine

the findings or lack thereof and the nature of Plaintiff’s alleged injuries.” The order

requires Society to pay for the examination and traveling expenses for Doe and requires

Society to produce a copy of Hobday’s report to Doe’s counsel. The specific provision of

the order at issue here, interlineated in handwriting, states that the court “will allow for a

video recording of the examination.”

       On December 7, 2018, Society filed a motion to reconsider the court-imposed

video recording of the examination. Society extensively discussed case law supporting

its position that to allow a third party to witness the examination, or even to allow the

examination to be recorded, would significantly impact the results of the examination.

Society’s motion was supported by Hobday’s affidavit, which provided in relevant part:

               My name is Dr. Gabrielle S. Hobday, MD, and I am over the age of
       eighteen, am of sound mind, and competent to make this affidavit. I am a
       medical doctor licensed in the State of Texas and am board-certified in
       Psychiatry and in Forensic Psychiatry by the American Board of Psychiatry
       and Neurology. I have been practicing medicine, and in particular in the
       field of Psychiatry, since the completion of my residency in 2008. Attached
       as Exhibit A is a true and correct copy of my Curriculum Vitae.

              I have conducted psychiatric evaluations in the capacity of a
       psychiatric expert on several hundred cases. These include the evaluation
       of competency to stand trial and criminal responsibility for the criminal
       courts, evaluations for federal employee disability cases, evaluations of

                                              8
      safety to practice and fitness of duty for professionals, evaluations involving
      boundary violations, medical malpractice expert review, evaluations of
      psychiatric damages in civil cases, guardianship evaluations and probate
      testamentary capacity assessments.

             It is always my practice in conducting independent medical
      examinations for matters in litigation that such evaluations are conducted in
      a one-on-one setting with only myself and the examinee present. I do not
      allow these evaluations to be recorded and I do not allow the presence of
      third-party observers during the evaluations. In my experience and in my
      professional judgment, the presence of a third party or a recording device
      creates an atmosphere where the responses by the examinee are less
      forthcoming and less representative of the true mental state of the
      examinee. Accordingly, to order my evaluation of the Plaintiff to be
      recorded or to order the presence of a third party would, in my opinion,
      negatively impact the validity of my evaluation, and impair my ability to
      provide to the court the most accurate and true expert analysis and resultant
      conclusions.

            I have reviewed the report of Alexandria H. Doyle, PhD, prepared for
      the above­referenced case. My review of her report does not indicate that
      Dr. Doyle’s evaluation was recorded or witnessed by a third party. Ordering
      my evaluation to be recorded or witnessed by a third party would not provide
      me with the equal ability to evaluate the Plaintiff under the same
      circumstances as Dr. Doyle.

      On December 12, 2018, the trial court held a hearing on Society’s motion to

reconsider. Hobday’s affidavit, originally filed with the motion for reconsideration, was

admitted into evidence under seal, as was Doyle’s report. At the hearing, counsel for Doe

decried Hobday’s affidavit as “conclusory” and again argued for videotaping the

examination to protect against potential improprieties and to provide a record of what was

to transpire during the evaluation. Doe’s counsel further asserted that “nobody has to

know that there’s a recording device in there” and we “don’t have to have a camera that’s

setup that’s . . . aimed down on everybody in there.” According to her attorney, “[w]e can

have something simple that’s out of the way, that’s unobtrusive [and] does this job.” Doe’s

counsel asserted that videotaping the examination was not equivalent to having an



                                            9
observer present and contended that Doe had been a victim of a crime who is “under

tremendous stress.”

       The trial court denied Society’s motion to reconsider on December 12, 2018.

       This original proceeding ensued. By one issue, Society alleges that the trial court

abused its discretion in ordering its expert psychiatrist to videotape Doe’s examination. It

argues that “the court’s order, in the absence of evidence of special circumstances or

good cause, is an abuse of discretion which places the adverse parties on unequal footing

for which there is no adequate remedy by appeal.”

       The Court requested Doe, or any others whose interest would be directly affected

by the relief sought, to file a response to the petition for writ of mandamus. See TEX. R.

CIV. P. 52.2, 52.4, 52.8. Doe filed a response to the petition for writ of mandamus arguing

that the trial court did not abuse its discretion in allowing the examination to be

videotaped, and even if it did, Society has an adequate remedy by appeal to cure any

alleged harm. The Court also received an amicus curiae brief in support of Doe’s position

filed by the Texas Association Against Sexual Assault (TAASA). See id. R. 11. And

finally, Society has filed a reply to Doe’s response.

                           II. STANDARD FOR MANDAMUS RELIEF

       To obtain relief by writ of mandamus, a relator must establish that an underlying

order is void or a clear abuse of discretion and that no adequate appellate remedy exists.

In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); 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). An abuse of

discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made



                                            10
without regard for guiding legal principles or supporting evidence. In re Nationwide, 494

S.W.3d at 712; 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 or apply the law

correctly to the facts. In re Nationwide, 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).

      We determine the adequacy of an appellate remedy by balancing the benefits of

mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528

(Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. 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. 2010)

(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 at 136–37. Mandamus “may

be essential to preserve 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.

      An order regarding a physical or mental examination under Rule 204 may be

subject to review by mandamus. See TEX. R. CIV. P. 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



                                            11
expert “to fully develop and present his opinion, ensuring a fair trial.” In re H.E.B. Grocery

Co., 492 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).           Further, 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; see also In re Kirby Inland Marine, LP, No.

01-18-00383-CV, 2018 WL 3468476, at *4 (Tex. App.—Houston [1st Dist.] July 18, 2018,

orig. proceeding) (mem. op., per curiam).

       Doe argues that mandamus relief is inappropriate and asserts that we should reject

any argument that the trial court abused its discretion when making a discovery ruling on

an issue that has not been clearly resolved by the relevant case law. However, a trial

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

even when the law is unsettled. In re Shipman, 540 S.W.3d 562, 565–66 (Tex. 2018)

(orig. proceeding) (per curiam); In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017)

(orig. proceeding). Thus, “[e]ven where the law is unsettled or the issue is one of first

impression, a court may abuse its discretion if its legal decision is incorrect.” In re Silver,

540 S.W.3d 530, 538 (Tex. 2018) (orig. proceeding); see In re Prudential Ins. Co. of Am.,

148 S.W.3d at 135. Accordingly, we proceed with our review on the merits of Society’s

petition for writ of mandamus.

                                        III. RULE 204

       Rule 204 of the Texas Rules of Civil Procedure governs court-ordered physical

and mental examinations. See TEX. R. CIV. P. 204.1–.5. Under Rule 204.1, a party may,



                                              12
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. 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 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. R. 204.1(c)(1); In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates,

758 S.W.2d at 752. These requirements may not be met with “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 Click, 442 S.W.3d 487, 491 (Tex.

App.—Corpus Christi–Edinburg 2014, orig. proceeding); In re Transwestern Publ’g Co.,

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

       The purpose of the “good cause” requirement in Rule 204 is to balance the

competing interests of the party’s right of privacy and the movant’s right to a fair trial. See

In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates, 758 S.W.2d at 753; In re Click, 442

S.W.3d at 491. In order to show good cause, the movant must establish that: (1) the

examination is relevant to issues that are genuinely in controversy in the case and the

examination would produce, or would likely lead to, relevant evidence; (2) a reasonable

nexus exists between the condition in controversy and the examination sought; and (3) it

is not possible to obtain the desired information through means that are less intrusive

than a compelled examination. See In re H.E.B. Grocery Co., 492 S.W.3d at 303; Coates,

758 S.W.2d at 751; In re Transwestern Publ’g Co., 96 S.W.3d at 505; In re Caballero, 36

S.W.3d 143, 144 (Tex. App.—Corpus Christi–Edinburg 2000, orig. proceeding). There



                                              13
must be a greater showing of need to obtain a physical or mental examination than to

obtain other sorts of discovery. In re Ten Hagen Excavating, Inc., 435 S.W.3d at 866

(citing Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)).

       Rule 204 requires the trial court to determine “the time, place, manner, conditions,

and scope of the examination and the person or persons by whom it is to be made.” TEX.

R. CIV. P. 204.1(d); see also In re Sharaf, No. 03-18-00671-CV, 2018 WL 5796977, at *3

(Tex. App.—Austin Nov. 5, 2018, orig. proceeding) (mem. op.) (concluding that the trial

court abused its discretion by failing to specify the requirements for the examination). The

trial court possesses discretion regarding the conditions for the examination. TEX. R. CIV.

P. 204.1(d); In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 803 (Tex. App.—

Houston [1st Dist.] 2016, orig. proceeding) (“The length of Yohman’s interview and the

quantity and duration of neuropsychological tests to be administrated are matters for the

trial court’s discretion, which must be exercised by considering the fair-trial standard.”);

see also In re Trimac Transp., Inc., No. 09–08–270–CV, 2008 WL 2758793, at *1 (Tex.

App.—Beaumont July 17, 2008, orig. proceeding) (mem. op.) (stating that the trial court

retains discretion to impose reasonable limits on the location for the examination and the

scope of the examination).         In exercising this discretion, the trial court may issue

protective orders “in the interest of justice” and may order, inter alia, that “discovery be

undertaken only by such method or upon such terms and conditions” as directed by the

court. TEX. R. CIV. P. 192.6(b).

                             IV. ARGUMENTS OF THE PARTIES

       Society contends that there is a presumption that the presence of a recording

device is neither necessary nor proper in a Rule 204 examination. It asserts that Doe, as



                                              14
the party seeking the recording, had the burden to demonstrate “special conditions” or

good cause for requesting that the examination be recorded, but introduced no evidence

of either.      Society contends that it, in contrast, offered “conclusive evidence”

demonstrating that the presence of a recording device was improper and would destroy

the validity of the psychological examination. Society argues that the trial court’s action

constitutes a clear abuse of discretion for which there is no adequate remedy on appeal

because Society, in the “battle of the experts,” will be required to defend itself in the

lawsuit on an “uneven playing field,” thereby depriving it of a fair trial. In support of these

arguments, Society asserts that Texas courts consider case law interpreting Federal Rule

of Civil Procedure 35 7 as instructive in interpreting Rule 204 and cites federal law in

support of its contentions.

        In contrast, Doe concedes that Texas Rule of Civil Procedure 204.1 and its federal

counterpart “are silent as to whether a trial court can impose a condition requiring an

independent psychiatric examination to be recorded by video.” Doe asserts that federal

courts do not uniformly prohibit the recording of psychological examinations and that

several cases allow videotaping such examinations.                  Doe further contends that the

recording is not equivalent to having a third-party observer, such as counsel, present at

the examination because the recording device here will be “unobtrusive.” Doe finally

asserts that assuming—without conceding—that she was required to show good cause

to obtain the recording of her examination, she has met this burden. She points out that

this case involves allegations that Society’s employee raped Doe as a child. Doe’s



        7 See FED. R. CIV. P. 35(a)(2) (stating that an order requiring a party to submit to a physical or
mental examination “must specify the time, place, manner, conditions, and scope of the examination, as
well as the person or persons who will perform it”).

                                                   15
counsel offered evidence of the trauma that she experienced in the form of her expert

affidavit and expressly stated that the intent underlying the request for recording was to

“make sure that she is not revictimized again.” Doe asserts, in sum, that trial courts have

discretion to determine the conditions of an independent medical examination and that

this Court should not conclude that the trial court’s decision “to make an exception to the

usual practice for a rape victim” was done “without reference to guiding rules or

principles.”

                                         V. APPLICABLE LAW

        In Coates, the Texas Supreme Court held that the federal courts’ construction of

the analogous federal rule was “helpful” to an analysis of our Texas rule. Coates, 758

S.W.2d at 751 (regarding former Rule 167a); see also In re H.E.B. Grocery Co., 492

S.W.3d at 304.          Under federal law, third-party observations and recordings of

examinations are disfavored. Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 395–397

(S.D. Tex. 2013) (collecting cases); Holland v. United States, 182 F.R.D. 493, 495 (D.S.C.

1998) (“[T]he majority of federal courts have rejected the notion that a third party should

be allowed, even indirectly through a recording device, to observe a Rule 35

examination.”); see also Jackson v. Harris Cty, Tex., 2019 WL 2544058, at *1, __ F.R.D.

__, __ (S.D. Tex. June 20, 2019). This is because “[t]he introduction of a human or

mechanical presence—whether a lawyer, a stenographer, a tape recorder, or other

instrumentality—changes the nature of the proceeding.” Ornelas, 292 F.R.D. at 397

(quoting Tirado v. Erosa, 158 F.R.D. 294, 299 (S.D.N.Y. 1994)). 8 The court in Romano


        8 Most courts analyze a request that an examination be recorded in the same manner that they

evaluate whether to allow a third party to be present at the examination. See Ornelas v. S. Tire Mart, LLC,
292 F.R.D. 388, 396 (S.D. Tex. 2013); Calderon v. Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D.
523, 529 (S.D. Fla. 2009); Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 557 (D. Conn.

                                                   16
v. II Morrow, Inc. articulated the reasons for prohibiting the presence of third parties or

recording or videotaping an examination:

        [A]n observer, a court reporter, or recording device would constitute a
        distraction during the examination and work to diminish the accuracy of the
        process. [An observer could] potentially distract the examining [physician]
        and examinee thereby compromising the results of the examination.
        Moreover, the presence of the observer interjects an adversarial, partisan
        atmosphere into what should be otherwise a wholly objective inquiry . . . .
        The Court finds that the presence of the observer would lend a degree of
        artificiality to the examination that would be inconsistent with the applicable
        professional standard.

173 F.R.D. 271, 273–74 (D. Or. 1997) (quoting Shirsat v. Mutual Pharm. Co., 169 F.R.D.

68, 70–71 (E.D. Pa.1996)); see Calderon v. Reederei Claus-Peter Offen GmbH & Co.,

258 F.R.D. 523, 527 (S.D. Fla. 2009). 9 And further, allowing an observer or recording

subverts the purpose of the rule allowing examinations, which is to put both the plaintiff

and the defendant on an equal footing regarding the evaluation of the party’s medical or

psychological status. Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008), Favale

v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 557 (D. Conn. 2006). In other

words—where one party has been examined by his or her doctors outside the presence

of others or recording devices—the other party should be given the same equal

opportunity. See Tarte, 249 F.R.D. at 859; Favale, 235 F.R.D. at 557.




2006); see, e.g., Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628 (D. Kan. 1999)
(“Whether to allow a tape recorder or a third person at the examination of [the] plaintiff raises only a single
issue.”); Holland v. United States, 182 F.R.D. 493, 495 (D.S.C.1998) (considering the presence of “a
professional videographer or court reporter, or even . . . an unattended videotape machine” as variations
of the same issue, i.e. the presence of a “third party”).

        9 We would note, as have some courts, that a compulsory examination with counsel selected and

paid for by the opposing party is not inherently a neutral judicial proceeding but is instead part of the
adversarial litigation process. See, e.g., Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 14 (E.D.N.Y.
1989).

                                                     17
       Under the majority viewpoint, the party requesting the presence of counsel or

seeking to record or videotape the examination has the burden to show a factual basis

establishing special circumstances which constitute good cause for the accommodation.

Ornelas, 292 F.R.D. at 396; see, e.g., Ren v. Phoenix Satellite Television (US), Inc., 309

F.R.D. 34, 36 (D.D.C. 2015) (stating that “the typical procedure is not to create a recording

of the examination” absent “a showing of specific need”); J.H. v. Sch. Town of Munster,

38 F.Supp.3d 986, 989 (N.D. Ind. 2014) (“In this case, Plaintiff has not identified any basis

that would persuade the Court to order that the examination be video recorded.”); Stefan

v. Trinity Trucking, LLC, 275 F.R.D. 248, 250 (N.D. Ohio 2011) (“Federal courts have

determined that third parties—whether human or electronic—cannot sit in on physical and

mental examinations under Federal Civil Rule 35 unless special circumstances require it.

These circumstances, however, must be balanced against the interests of the parties

involved in the litigation.”); Morrison v. Stephenson, 244 F.R.D. 405, 407 (S.D. Ohio 2007)

(“In short, Ms. Morrison has simply presented no evidence that any of the facts and

circumstances of this case differ from the ordinary case and require the Court to attach,

as a condition to the examination, a directive that a recording device be made available.”);

Favale, 235 F.R.D. at 557 (refusing to allow the recording of an examination because the

plaintiff had not shown “special circumstances” supported by specific facts constituting

good cause); Holland, 182 F.R.D. at 496 (“Plaintiff has not demonstrated that compelling

circumstances exist that could mandate recordation of the Rule 35 examination.”); see

also Jackson, 2019 WL 2544058, at *2 (stating that the movant must persuade the court

that recording is “necessary”).    Thus, the party seeking to record or videotape an

examination bears the burden of showing special circumstances, unique to that party’s



                                             18
situation, supported by specific facts, that distinguish the case from others in which

examinations are sought. See, e.g., Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at

557. Courts have found that good cause for recording or videotaping an examination may

be shown by various special circumstances, including for instance, where the examinee

is a minor, does not speak the relevant language, or suffers from a disability that might

impair his or her ability to communicate to counsel what occurs during the examination,

or where evidence otherwise suggests that recording would be advisable. See, e.g.,

Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D. 662, 664 (D. Kan. 2011) (allowing

recording because, among other reasons, “plaintiff ha[d] a lengthy history of serious

mental issues,” and the court had serious doubts “as to whether plaintiff [would] be

capable of providing any assistance to his attorney in understanding what took place

during the examination”); Greenhorn v. Marriott Int’l, Inc., 216 F.R.D. 649, 654 (D. Kan.

2003) (allowing tape recording of the examination because the plaintiff produced

evidence that the examining physician was “abusive and ha[d] a ‘predilection for ignoring

court orders imposing conditions upon his examinations’” and had previously been

disqualified from several cases); Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12

(E.D.N.Y. 1989) (allowing a stenographer to be present at a psychiatric examination

where it appeared that plaintiff, who was not fluent in English, would have difficulty

communicating with his attorney); see also Maldonado v. Union Pac. R.R. Co., No. 09–

1187–EFM, 2011 WL 841432, at *3 (D. Kan. Mar. 8, 2011) (relying on the fact that the

plaintiff, who “ha[d] a third-grade education and [wa]s a non-English speaker,” suffered

from impaired memory and cognitive abilities, “thus impairing his ability to communicate

to his counsel what occurred during the examination,” in finding the recording warranted);



                                           19
T.B. ex rel. G.B. v. Chico Unified Sch. Dist., No. CIV S–07–0926–GEB–CMK, 2009 WL

837468, at *2 (E.D. Cal. Mar. 26, 2009) (allowing recording of an autistic child’s

examination upon the examining physician’s request because “with traumatized children,

a child’s facial expressions, body language, movements and behavioral enactments

communicate medically significant information which can be captured on videotape” and

there was “no indication in this case that the unobtrusive use of a video camera will make

the examination of plaintiff adversarial”).

        In contrast, in accordance with the requirement for special circumstances or a

compelling need, generalized concerns about accuracy, reliability, and methodology for

the examination do not constitute good cause for recording. Ornelas, 292 F.R.D. at 397;

see also Jackson, 2019 WL 2544058, at *2.                      Thus, good cause for recording an

examination is not established by the inherently adversarial nature of the examination,

the fact that the examining physician was selected or paid for by opposing counsel, the

theoretical potential for misconduct during the examination, the desire to obtain an

accurate, dispute-free version of what was said, or the fear that the examination would

become a de facto deposition. See, e.g., Hertenstein v. Kimberly Home Health Care,

Inc., 189 F.R.D. 620, 629–31 (D. Kan. 1999). 10


         10 Cases which require compelling reasons or exceptional circumstances to allow third-party

observers or recording an examination consider that many of the rationales offered in support of these
measures can be addressed through other means. See, e.g., Smolko v. Unimark Lowboy Trans., LLC.,
327 F.R.D. 59, 63 (M.D. Pa. 2018) (stating that “to the extent that these concerns exist there are other, less
drastic means of addressing them”); Tarte v. United States, 249 F.R.D. 856, 859 (S.D. Fla. 2008) (noting
that there are “safeguards” other than third-party observers for plaintiffs who submit to examinations). For
instance, the trial court can exclude from evidence any statements made by the examinee to the examiner
relating to irrelevant matters or exclude any evidence regarding the exam that goes beyond the appropriate
scope. Further, if there are concerns about the factual accuracy of the expert’s examination or report, or
any bias that the expert might have, the examinee’s counsel can counter these concerns with the
examinee’s own testimony, testimony from that party’s witnesses, and cross-examination of the expert.
Ultimately, if there is a fundamental impropriety in how the exam is conducted, the trial court can exclude
the evidence altogether or otherwise impose appropriate sanctions.


                                                     20
        The foregoing federal authority requiring good cause or special circumstances for

third party observations or recording an examination is consistent with Texas

jurisprudence. While there is little Texas authority regarding recording or videotaping

physical or mental examinations under Rule 204, 11 the Texarkana Court of Appeals has

considered whether a plaintiff could be accompanied by her attorney during a physical

examination. See Simmons v. Thompson, 900 S.W.2d 403, 403 (Tex. App.—Texarkana

1995, orig. proceeding). 12 In Simmons, the plaintiff in a personal injury suit regarding

defective breast implants requested to have her attorney accompany her to the court-

ordered physical examination. See id. The trial court denied her request and she filed a

petition for writ of mandamus seeking to compel the trial court to set aside the order

denying her request. See id. (discussing former TEX. R. CIV. P. 167a, now Rule 204).



        11  Texas cases that involve recording or videotaping examinations provide little discussion or
analysis regarding whether an examination should be recorded or videotaped. See, e.g., In re Commitment
of Shoemaker, No. 09-14-00239-CV, 2015 WL 2124987, at *2 (Tex. App.—Beaumont May 7, 2015, pet.
denied) (mem. op.) (“We agree with the State that the Texas Rules of Civil Procedure do not mandate that
the court require mental examinations to be videotaped.”); In re Freshpoint Dall., Inc., No. 05-14-00872-
CV, 2014 WL 3557616, at *1 (Tex. App.—Dallas July 17, 2014, orig. proceeding) (mem. op.) (denying
mandamus relief where “[r]elators have not established that the trial court has clearly abused its discretion
in ordering that a videographer must be present during the independent medical examination of the real
party in interest.”); In re Medina, No. 01-07-00747-CV, 2007 WL 4279171, at *1 (Tex. App.—Houston [1st
Dist.] Dec. 6, 2007, orig. proceeding) (mem. op.) (concluding that the trial court did not err in ordering
physical examinations for the plaintiffs, but did err in ordering psychological examinations and noting,
without discussion, that the trial court had “also ruled that no representatives of the Medina Plaintiffs could
attend the examinations or videotape or audiotape the examinations”); In re The Kansas City S. Ry. Co.,
No. 09-07-259CV, 2007 WL 1793758, at *1 (Tex. App.—Beaumont June 21, 2007, orig. proceeding) (mem.
op., per curiam) (denying mandamus relief without discussion where the relator sought “to compel the trial
court to remove a condition on an independent medical examination”).

        12 A line of cases follows Simmons in the context of civil cases concerning sexual predator litigation.
See generally TEX. HEALTH & SAFETY CODE ANN. §§ 84.001–.153 (codifying the civil commitment of sexually
violent predators). These cases hold that the sexual predator act, which provides that a person subject to
a civil commitment proceeding is entitled to the assistance of counsel, does not require the presence of
counsel at the post-petition expert examination. See, e.g., In re Commitment of Wirtz, 451 S.W.3d 462,
469 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“We hold that under the circumstances of this case,
Section 841.144(a) of the Act did not require the attorney’s presence at the post-petition psychiatric
examination.”); In re Commitment of Smith, 422 S.W.3d 802, 805–07 (Tex. App.—Beaumont 2014, pet.
denied) (concluding “that neither the . . . statute nor the Fourteenth Amendment require that counsel be
present during a psychiatrist’s post-petition examination.”).

                                                     21
The plaintiff contended that the issue was “one of law rather than fact” and that she had

an “absolute right as a matter of law to have her attorney present at the examination.” Id.

The Texarkana Court of Appeals held that the right to have one’s attorney present at a

court-ordered examination “is a matter to be determined within the discretion of the trial

court on a case-by-case basis according to evidence showing a particularized need

therefor.” Id. The court denied relief because “relator has produced no facts showing a

need for the presence of her attorney.” Id.

      As a preliminary matter, Doe asserts we should not apply the foregoing federal

authority—which equates the presence of a third party at an examination with recording

or videotaping the examination—to this case. In her response to the petition for writ of

mandamus, she argues that this Court should reject Society’s “attempt to demonstrate

such an equivocation” on grounds it is contrary to the record.         She reiterates the

arguments that her attorneys made at the hearing on Society’s motion for reconsideration,

to wit, that “[n]obody has to know that there’s a recording device in there” and that the

recording device could be “something simple that’s out of the way, that’s unobtrusive.”

Doe’s attorneys thus submit that the trial court properly rejected case law that equates

what they term as a “secret recording” with the “obvious physical presence of a third party

during an examination.” Doe’s counsel argues that Hobday’s assertion that a recording

device would render the examination less accurate “necessarily presupposes that the

examinee was aware of the recording device—which—as discussed above—is not the

case here.”

      Consistent with the majority of federal courts who have considered this issue, we

see no need to apply separate rules to determine whether a third party can be present at



                                              22
an examination or whether the examination can be videotaped or recorded.              See

Calderon, 258 F.R.D. at 529; Favale, 235 F.R.D. at 557; Hertenstein, 189 F.R.D. at 628;

Holland, 182 F.R.D. at 495. The distinctions between allowing an observer to be present,

or recording the examination, or the obtrusiveness of the recording device, may be factors

to be considered in the overall analysis regarding good cause for the accommodation, but

the distinctions are not determinative. And, even if we were to conclude otherwise, we

question any suggestion that the examination could proceed without Doe’s attorneys

informing her that her psychological examination by Hobday would be videotaped.

Videotaping Doe during a psychological examination performed for the purposes of

litigation, without disclosing to her that the examination would be recorded, or the

possibility and likelihood that the videotape would be viewed by third parties, presents

fundamental problems pertaining to consent, privacy, and re-victimization. Although we

need not further address this issue here, we are profoundly skeptical that proceeding in

such a manner would comport with the rules of ethics and fiduciary responsibilities

imbedded in the attorney-client relationship and the ethical and professional obligations

of the examiner.

      Based on the foregoing, we conclude that Doe must show special circumstances

or a particularized need, as in Simmons and consistent with federal authority, supported

by evidence including specific facts amounting to good cause, for video recording her

examination. See Simmons, 900 S.W.2d at 403; see also Ornelas, 292 F.R.D. at 39. In

this regard, we note that both federal courts and our Texas Supreme Court have

emphasized the importance of allowing the moving party’s expert the “same opportunity”

as the opposing party’s expert “to fully develop and present [her] opinion, ensuring a fair



                                            23
trial.” In re H.E.B. Grocery Co., 492 S.W.3d at 304–05; see Tarte, 249 F.R.D. at 859;

Favale, 235 F.R.D. at 557. Because Doe was examined by her expert without videotaping

the examination, she should not require Society’s expert to do otherwise in the absence

of special conditions and a factual basis demonstrating good cause.

                                     VI. GOOD CAUSE

       We determine, based on the record presented, whether Doe has met her burden

to show special circumstances or a particularized need, unique to her situation, supported

by specific facts, that provide good cause for allowing the examination to be videotaped.

See Simmons, 900 S.W.2d at 403; Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at

557. Doe asserts that good cause is shown for videotaping Hobday’s examination

because her case does not arise out of a “routine” claim but instead involves allegations

that relator’s employee intentionally raped her as a child. Doe’s attorneys assert that they

are “reluctant to require her to participate in a one-on-one session with a person

investigating her claims on [Society’s] behalf without some guarantee of knowing what

transpired,” that they have “offered evidence of the trauma that she has experienced,”

and that they have “expressly stated the intent to ‘make sure that she is not revictimized

again.’” Doe contends that, given the “undisputed discretion that trial courts have when

determining the conditions of an independent medical examination, this Court should not

conclude that the trial court’s decision to make an exception to the usual practice for a

rape victim was done ‘without reference to guiding rules or principles.’”

       TAASA similarly asserts in its amicus curiae brief that in sexual abuse cases, such

as the case at bar, “trial courts have a particular duty to take into account the unique

needs of the sexual assault survivor.” It argues that “the trial court made the sound



                                            24
decision, firmly grounded in legal precedent and in public policy, that a sexual assault

survivor should have the safeguard of a recording during her mental examination by the

Relator’s expert.”

       We appreciate the arguments made by Doe and TAASA regarding the nature of

the injury at issue in this case, and we sympathize with the challenges and obstacles

presented by the factual allegations presented here. However, we determine good cause

for allowing the examination to be videotaped on a case-by-case basis according to

evidence showing a particularized need, rather than by a categorical determination based

on the underlying tort or cause of action, or the nature of the injury alleged. See Simmons,

900 S.W.2d at 403; Ornelas, 292 F.R.D. at 397; Favale, 235 F.R.D. at 557.

       Doe asserts that recording is necessary to provide “some guarantee of knowing

what transpired.” However, without more, this rationale does not provide good cause for

videotaping the exam. See Ornelas, 292 F.R.D. at 396 (rejecting a request for recording

where the plaintiff requested an audio or video recording of his examinations based on

“the Plaintiff’s right to preserve evidence of the nature of the examination, the accuracy

of the examiner’s notes or recollections[,] and the tones of voice”); Calderon, 258 F.R.D.

at 529 (rejecting the argument that “videotaping the [examination] will avoid discrepancies

that may arise over statements made by Plaintiff during the examination in response to

the examining physician’s inquiries and reduce the prospective need for court

intervention”).

       Doe further expresses concerns regarding whether Hobday will “revictimize” Doe

or whether Hobday will improperly conduct the examination as a “de facto deposition.”

Doe’s arguments are speculative in nature and are wholly unsupported by any evidence.



                                            25
There is no factual basis, in this record, to assume that Hobday will terrorize Doe or turn

the examination into a deposition. See, e.g., Greenhorn., 216 F.R.D. at 654 (“The court

assumes that Dr. Stillings will exercise sound professional discretion in making such

inquiries and will not pursue private information that is wholly unrelated to plaintiff’s claims

of injury and emotional distress.”). Similarly, there is nothing in this record which would

suggest that Hobday will not conduct an examination that is appropriate to Doe’s specific

mental health needs. We finally note that, fundamentally, an examination conducted for

purposes of litigation, pursuant to the rules and under the direction of a court, should not

be classified as a “revictimization.” In this regard, we observe that Doe instituted the

underlying litigation and placed her mental condition in controversy.

       Finally, Doe has not alleged that she suffers a disability that would militate in favor

of videotaping the examination or that she is unable to communicate with counsel

regarding the content and procedure for the examination. Doe’s counsel advised the trial

court in her November 19, 2018 letter brief that, as discussed in Doyle’s report, Doe had

an 11th grade education, was classified as “Special Ed” in school, and was currently trying

to obtain her GED. In this proceeding, however, Doe does not make any arguments that

these matters necessitate videotaping the examination. And, there is no evidence or

testimony in the record that these matters provide good cause for videotaping Doe’s

examination.

       Utilizing the fair trial standard, and considering the specific facts presented in this

case, we conclude that Doe has not shown good cause for videotaping the examination.

Doe has not met her burden to show special circumstances or a particularized need,

unique to her situation, supported by specific facts, that provide good cause for allowing



                                              26
the examination to be videotaped. See Simmons, 900 S.W.2d at 403; Ornelas, 292

F.R.D. at 397; Favale, 235 F.R.D. at 557. 13 In this regard, Hobday has testified that she

does not allow examinations to be recorded, that recording the examination would

negatively impact the validity of her evaluation, and that ordering her examination to be

recorded would not provide her with the same and equal ability to evaluate Doe under the

same circumstances as Doyle. We note that these factual allegations in the record

resonate strongly with the supreme court’s directive to ensure that court-ordered

examinations are conducted in such a manner as to ensure a fair trial. See In re H.E.B.

Grocery Co., 492 S.W.3d at 304–05 (concluding that the defense’s expert required “the

same opportunity” as the plaintiff’s expert “to fully develop and present his opinion,

ensuring a fair trial”).

                                       VII. REMEDY BY APPEAL

        We have concluded that the trial court abused its discretion by permitting Doe’s

examination to be videotaped. However, we will not grant mandamus relief if an appeal

would provide a clear and adequate remedy. See In re Nationwide Ins. Co. of Am., 494

S.W.3d at 712; In re H.E.B. Grocery Co., 492 S.W.3d at 304. Doe asserts that Society

has an adequate remedy by appeal to cure any alleged error in allowing the examination

to be videotaped and that allowing the examination to be videotaped does not somehow

“ring a bell that cannot be unrung.” 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



        13 Given our analysis here and the applicable burden of proof for allowing the examination to be

videotaped, we need not address Doe’s complaint that Hobday’s affidavit is conclusory. See Starwood
Mgmt., LLC v. Swaim, 530 S.W.3d 673, 679 (Tex. 2017) (per curiam) (stating that conclusory affidavits are
not probative). Doe’s sole argument offered in support of this contention is that Hobday “is attempting to
convince this Court that she has personal knowledge of the nature of answers to questions that she has
not asked yet” and such an assertion “is obviously conclusory.”

                                                   27
irreversible. The bell cannot be unrung, and neither dissemination nor use can be

effectively restrained.”).   Doe asserts that the ruling at issue does not severely

compromise Society’s ability to develop a defense to her claims, nor does it “deny this

Court the ability to evaluate the effect of the trial court’s error on appeal.” Doe contends

that if Society concludes that a recorded examination is insufficient to allow it to prepare

for trial, “it can make an appropriate request to the trial court at that time.” Doe further

argues that Society “cannot possibly identify the harm from a recorded examination that

has not yet occurred,” and therefore, Society possesses an adequate remedy by appeal.

       We determine the adequacy of Society’s appellate remedy by balancing the

benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d

at 528; In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36. Balancing the benefits

against the detriments and examining the specific facts and circumstances of this case,

we conclude that appeal is an inadequate remedy. In re McAllen Med. Ctr., Inc., 275

S.W.3d at 464 (stating that the cost-benefit analysis regarding the adequacy of a remedy

by appeal “depends heavily on circumstances” and “must be guided by analysis of

principles rather than simple rules that treat cases as categories”). Society’s “defense in

this case hinges in large part on its challenges to the nature, extent, and cause” of Doe’s

injuries, and these issues “in turn depend significantly on competing expert testimony.”

See In re H.E.B. Grocery Co., 492 S.W.3d at 304. Society seeks to allow Hobday the

same opportunity as Doyle to fully develop and present her opinion, ensuring a fair trial.

See id. In this regard, Doyle’s examination was not videotaped or otherwise recorded.

Further, Hobday has provided explicit testimony that videotaping the examination would

skew the examination and impair the accuracy of the results. The evidence presented in



                                            28
this case suggests that the differing procedures or conditions on the examination will not

provide the parties with equivalent discovery. We thus conclude that Society’s ability to

present a viable defense at trial is vitiated or severely compromised by the trial court’s

discovery error. See id. And, we would be unable to evaluate the extent to which

Hobday’s evaluation might be impaired or inadequate on appellate review. See In re Ten

Hagan Excavating, Inc., 435 S.W.3d at 864 (concluding that the denial of a request for an

examination denied the appellate court “the ability to evaluate the effect of the trial court’s

error on appeal”); see also In re Offshore Marine Contractors, Inc., 496 S.W.3d at 804.

We conclude that Society lacks an adequate remedy by appeal.

                                      VIII. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus,

the response, and the reply, is of the opinion that Society has met its burden to obtain

relief. Accordingly, we conditionally grant relief and direct the trial court to vacate its

November 27, 2018 order allowing for the examination to be recorded by video and its

December 12, 2018 order denying reconsideration of that order. Our writ will issue only

if the trial court fails to comply.

                                                          LETICIA HINOJOSA
                                                          Justice

Delivered and filed the
23rd day of July, 2019.




                                              29
