Opinion issued June 21, 2016




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00758-CV
                             NO. 01-15-01102-CV
                          ———————————
        IN RE ADVANCED POWDER SOLUTIONS, INC., Relator



          Original Proceedings on Petitions for Writs of Mandamus


                                 OPINION

     Relator, Advanced Powder Solutions, Inc., filed two petitions for writs of

mandamus, both arising from a suit brought by real party in interest, Tremaine

Hewitt, an APS employee who suffered injuries while working at APS.1 In the

first petition, cause number 01-15-00758-CV, APS challenges the trial court’s

1
     The underlying case is Tremaine Hewitt v. Advanced Powder Solutions, Inc.,
     cause number 2014-16020, pending in the 125th District Court of Harris County,
     Texas, the Hon. Kyle Carter presiding.
denial of a motion to compel Hewitt to submit to physical examinations. In the

second petition, cause number 01-15-01102-CV, APS challenges the trial court’s

order imposing sanctions for spoliation of evidence, in which the trial court both

granted a spoliation instruction and ordered APS’s answer stricken.

       We conditionally grant the first petition with respect to APS’s request for a

medical examination and the second petition with respect to the trial court’s

decision to strike APS’s pleadings. We otherwise deny each petition.

                                      Background

A.     Hewitt Suffers Injuries

       APS operates a chemical plant near Houston, Texas. On August 26, 2013,

Tremaine Hewitt was employed by APS at the plant. Hewitt was working on a

ladder near a reactor, pouring magnesium powder into the reactor from a bucket.

While he was doing so, another APS employee, Donnie Guzman, opened and

closed a valve on the opposite side of the reactor, which Baker later testified was

“[n]ot something [Guzman] should have been doing.” An explosion and fire

occurred, which Hewitt attributes to Guzman’s actions and which APS alleges was

due to Hewitt’s use of a bucket too large for the task. Hewitt fell off of the ladder

and, either before or after his fall, was set on fire.

       Hewitt suffered burns to much of his body, as well as orthopedic injuries.

Dean Baker, general manager of APS, later testified, “When I saw [Hewitt’s]



                                             2
injuries, I knew it was an emergency situation.” Baker further testified that,

immediately after the accident, he observed burns on Hewitt’s right arm, legs, and

face; Hewitt’s skin began to come off on its own before he had left APS’s facility.

Baker drove Hewitt to a hospital, and Hewitt was later transferred by “life flight”

to a burn unit at Memorial Hermann Hospital in Houston. Hewitt ultimately spent

approximately one month recovering in a hospital burn unit, received skin grafts,

and underwent surgery.      Hewitt alleges that he has since undergone multiple

surgeries related to his burn injuries and orthopedic injuries that he sustained as a

result of the fall.

B.     APS Security Cameras Record the Incident

       At the time of the incident, APS had a 16-camera, Q-See QT 426 security

camera system.2 APS’s camera system recorded video of the incident. According

to Baker, he and two other APS employees viewed the video later that day. While

Hewitt was in the hospital, he asked to see the video. Baker visited him and

showed him the video captured by the security camera system on two different

occasions and also showed the video to Hewitt’s girlfriend. Baker did this by

streaming the video over the internet to a tablet device, not by saving it to the

device.


2
       APS purchased this system in January 2013 and installed it in April 2013, five
       months before Hewitt was injured. Hewitt himself installed some of the cameras.
       Until that time, APS had not had a security camera system.

                                          3
      Baker never attempted to save any portion of the video related to the

incident, nor did he ask anyone to help him do so. During his deposition, however,

he was asked, “Did you ever think maybe I should preserve that tape?,” to which

he answered, “Yes.” He also testified that he had saved videos of other injuries

that have occurred at APS, specifically, “[t]hose that [one] actually could see

something” or when there were “conflicts” between different accounts of the

incident, including video showing an injury to another APS employee in 2015. By

contrast, APS did not keep video of another incident in August 2015 because

“[p]eople wrote up the incident that matched what happened,” and the injured

employee “admitted that he wasn’t wearing the right stuff . . . . [and] was doing the

wrong thing.” Baker made the decisions for APS regarding whether to keep these

videos.

      Baker testified that, before the security camera system recorded over the

video, he used the video to determine “exactly what happened that day.” In

August 2015, nearly two years after the accident, Baker used this knowledge to

plan, conduct, and film an “experiment . . . to recreate the accident” by “repeating

the steps that happened that day,” specifically by testing what happened if someone

was “loading powder [into the reactor involved in the incident] . . . the way we

normally do it and someone had done what Donnie Guzman had done” in opening

a valve. He also ran at least two other “experiments” “to determine what happened



                                         4
or why it happened” after consulting with expert witnesses hired by APS in

connection with Hewitt’s suit, who had not seen the video.

C.    Hewitt Files Suit

      Hewitt began contemplating legal action shortly after the incident. Baker

later testified in a deposition about his conversations with Hewitt:

      Q.     Was he talking about maybe hiring a lawyer?
      A.     At some point he was, yes.
      Q.     It was early on, wasn’t it?
      A.     I don’t know the exact date; but, yes, it was fairly early on.
      Q.     He was still in the hospital, right?
      A.     Yes, he was.
      Q.     Still around that same time where you showed him that video,
             right?
      A.     I showed him the video within the first week, I believe, of his
             stay at the hospital.

Baker further testified by affidavit that, in March 2014, Hewitt “told [Baker] it was

not personal, but that he found an attorney that would get him $10,000,000+ and he

would own APS or a portion of it.” Baker “told [Hewitt] to have his attorney

contact APS’[s] attorney, Charles Sturm, about his damages.”3

      On March 24, 2014, Hewitt filed the underlying suit against APS. Hewitt

alleges that he “was working at [APS’s] facility in front of a reactor when a co-

worker began manipulating valves on the reactor.” He further alleges that this


3
      Sturm is, in fact, APS’s counsel in this litigation. We note that APS also engaged
      counsel within a few months after the accident. In September 2013, the federal
      Occupational Safety and Health Administration (“OSHA”) sent an inspector to the
      APS facility where Hewitt was injured; this prompted Baker to contact counsel.

                                           5
“caused a blast and caused [him] to fall off the ladder and into a fire,” as a result of

which he suffered “severe burns and orthopedic injuries.” He contends that APS’s

negligence and gross negligence caused his injuries and asserts claims for actual

damages, consequential damages, punitive damages, and interest.4

      Hewitt was unable to serve APS, despite attempting to do so. On June 14,

2014, the trial court granted Hewitt’s motion for substituted service, and on June

26, 2014, Hewitt served APS with the lawsuit.

D.    APS Moves to Compel a Physical Examination of Hewitt

      In May 2015, APS filed a Motion for Plaintiff to Submit to Physical

Examination. APS pointed to Hewitt’s identification of Angel M. Roman, M.D.,

and Kenneth McCoin, Ph.D., as expert witnesses, and contended that the trial court

should require Hewitt to submit to physical examinations in order to permit APS to

rebut the testimony of these witnesses.

      Dr. Roman, a physician, is expected to testify regarding Hewitt’s physical

condition, based upon both Hewitt’s medical records and Dr. Roman’s own

examination of Hewitt. He also intends to offer opinions regarding the causation

4
      Hewitt subsequently amended his petition, on the same day that he filed his
      response to the petition for writ of mandamus in cause 01-15-00758-CV, to name
      Dean Baker and his wife, Martha Baker, as defendants. Hewitt’s amended petition
      asserts substantively the same claims against APS as his original petition. The
      most significant differences from the original petition are the addition of the
      Bakers as defendants and the assertion of various theories under which Hewitt
      seeks to hold them liable for acts of APS. Neither of the Bakers is a party to these
      mandamus proceedings.

                                           6
of Hewitt’s injuries and “the reasonableness and necessity of medical treatment

[Hewitt] has received . . . [or] will require in the future.”

       Dr. McCoin, by contrast, is an economist who calculated Hewitt’s expected

lifetime earnings both in light of his injuries and in a hypothetical scenario in

which he had not been injured. Dr. McCoin’s calculations explicitly depended on

an assumption that “Hewitt will obtain alternative employment on January 1, 2015,

at $18,000 per year ($8.65/hour) and incur annual work expenses of $3,600.” He

also assumed that Hewitt “has lost, as a comparative, 20 percent of his contribution

to household services,” which he valued at $8.75 per hour, terminating at age 70.

Dr. McCoin submitted a report setting out his methodology and conclusions, which

does not include any assessments of Hewitt’s physical condition, capacity to work,

or ability.

       APS argued that it was entitled to (1) a medical examination of Hewitt by

APS’s retained plastic surgeon, Ramsey J. Choucair, M.D., and (2) a “functional

capacity evaluation and impairment rating in order to determine [Hewitt’s] ability

to return to work,” to be performed by Ergonomic Rehabilitation of Houston

(“ErgoRehab”), to which Hewitt had been referred by Dr. Todd Huzar of UT

Health Science Center.       With respect to the ErgoRehab functional capacity

evaluation, APS argued that it was “simply a request [that Hewitt] submit to an

exam by a healthcare provider as ordered by his treating doctor.” APS stipulated



                                            7
that it was “willing to have the examinations take place simultaneously in [an]

effort to minimize the inconvenience to [Hewitt].”

      Hewitt filed a response, arguing that (1) APS failed to show “good cause”

for physical examinations as required by Texas Rule of Civil Procedure 204.1;

(2) APS did not demonstrate an entitlement to the examinations under Texas case

law; (3) APS failed to pursue less intrusive means of obtaining the desired

information, including depositions of Hewitt’s experts; and (4) in making its

request for a functional capacity examination, APS essentially sought to compel

Hewitt to undergo medical treatment in violation of his rights to privacy and to

make decisions regarding his own health care. Hewitt also argued that Dr. Huzar,

who had originally referred Hewitt to ErgoRehab, was no longer treating Hewitt.

APS filed a reply challenging Hewitt’s arguments.

      In July 2015, without conducting a hearing, the trial court denied the motion.

On September 3, 2015, APS initiated the first of its mandamus proceedings, cause

number 01-15-00758-CV. At the time, the matter was set for trial in October 2015.

Therefore, on the same day that it filed its petition for mandamus relief, APS also

requested temporary relief in the form of a stay of the trial. The following day, this

Court stayed the trial. We also requested a response to the petition from Hewitt,

which he provided.




                                          8
E.    Hewitt Moves for Sanctions

      Meanwhile, the parties had engaged in discovery. Hewitt’s counsel wrote to

APS on July 1, 2014, five days after serving APS with Hewitt’s original petition,

requesting that APS preserve various evidence related to Hewitt’s injuries. In

relevant part, that letter asked that APS preserve

      (5)    any pictures or video relating to the incident;

      ....

      (7)    all iPhone or iPad images or messages, including text messages
             since the incident; and

      (8)    all computers, servers, or systems.

      As for electronic data, any routine purge of emails or other data
      should be disabled until all documents are gathered and turned over.

      Baker, however, was not able to locate a copy of the video. In January 2014,

approximately five months after Hewitt was injured, APS replaced the camera

system in use at the time of the accident with a Q-See QT 1624 system that allows

for the use of additional cameras. He explained in an affidavit,

      In April of 2014, I attempted to view the video of the accident. I
      could not view the video as the recording settings had been changed
      and the video had been written over. I contacted a representative of
      ASAR IT Solutions (Syed) and told him that the system had written
      over the video of the accident. I gave the ASAR IT representative the
      older system and asked [him] to take it with him to see if the data
      could be retrieved and he later advised it could not.

      On September 18, 2015, Hewitt filed a motion in the trial court in which he

asked the trial court to sanction APS by striking its pleadings and ordering a

                                          9
spoliation instruction. APS filed a response, arguing that the destruction of the

recording was inadvertent and that APS had no duty to preserve it until Hewitt’s

counsel sent the July 1, 2014, letter regarding preservation of evidence.

       Without conducting a hearing, the trial court granted the motion for

sanctions, imposing sanctions by striking APS’s pleadings and in the form of a

spoliation instruction to be given to the jury at trial. The trial court did not specify

its reasoning for either sanction. APS filed a motion for reconsideration, to which

Hewitt filed an opposing response. The trial court conducted a hearing, at which it

requested letter briefs from each party regarding APS’s diligence in preserving

evidence. After each party filed its letter brief, the trial court denied the motion for

reconsideration, again without providing any reasoning.

       On December 28, 2015, APS filed its second petition for writ of mandamus,

initiating cause number 01-15-01102-CV. We requested a response from Hewitt.

Hewitt filed his response, arguing that the sanctions were appropriate, and APS

filed a reply.

                          Mandamus Standard of Review

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

show both that (1) the trial court clearly abused its discretion; and (2) there is no

adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317

(Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.



                                          10
1992) (orig. proceeding). A clear abuse of discretion occurs when a trial court

“reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.” Walker, 827 S.W.2d at 839 (internal quotation marks and

citation omitted). A trial court has no discretion in determining what the law is or

in applying the law to the particular facts. Id. at 840. A clear failure by the trial

court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

      In determining whether an appeal is an adequate remedy, we consider

whether the benefits outweigh the detriments of mandamus review. In re BP

Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); Ford

Motor Co., 165 S.W.3d at 317. A party establishes that no adequate appellate

remedy exists by showing it is in real danger of losing its substantial rights. Perry

v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding); Walker, 827

S.W.2d at 842.

                    Motion to Compel Medical Examinations

      We turn first to the challenge of the trial court’s order denying APS’s motion

to compel medical examinations of Hewitt.

A.    Applicable Law

      Texas Rule of Civil Procedure 204.1(a) provides, in relevant part, “A party

may . . . move for an order compelling another party to: . . . submit to a

physical . . . examination by a qualified physician . . . .”         TEX. R. CIV.



                                         11
P. 204.1(a)(1). The trial court “may issue an order for [physical] examination [of a

party] only for good cause shown and only . . . when the . . . physical condition . . .

of a party . . . is in controversy.” TEX. R. CIV. P. 204.1(c)(1).

      “Rule 204.1(c) of the Texas Rules of Civil Procedure does not grant an

automatic right to obtain a physical or mental examination.” In re Ten Hagen

Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig.

proceeding). Rather, “there must be greater showing of need to obtain a physical

or mental examination than to obtain other sorts of discovery.”            Id. (citing

Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S. Ct. 234, 243 (1964) (analyzing

analogous federal rules)).      “Rule 204.1, by its express language, places an

affirmative burden on the movant to meet a two pronged test: (1) the movant must

show that the party’s condition is ‘in controversy’; and (2) the movant must

demonstrate that there is ‘good cause’ for such an examination.” Id.; see also

Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding)

(identifying same test with respect to mental examinations under predecessor rule

to 204.1). “A plaintiff in a negligence action who asserts mental or physical

injury . . . places that mental or physical injury in controversy and provides the

defendant with good cause for an examination to determine the existence and

extent of such asserted injury.” Schlagenhauf, 379 U.S. at 119, 85 S. Ct. at 243.




                                           12
      The Supreme Court of Texas has identified three elements of a showing of

“good cause” for purposes of a compelled examination of an individual:

      The requirement of good cause for a compulsory . . . examination may
      be satisfied only when the movant satisfies three elements. First, that
      an examination is relevant to issues that are genuinely in controversy
      in the case. It must be shown that the requested examination will
      produce, or is likely to lead to, evidence of relevance to the case.
      Second, a party must show a reasonable nexus between the condition
      in controversy and the examination sought. . . . Finally, a movant
      must demonstrate that it is not possible to obtain the desired
      information through means that are less intrusive than a compelled
      examination. The movant must demonstrate that the information
      sought is required to obtain a fair trial and therefore necessitates
      intrusion upon the privacy of the person he seeks to have examined.

Coates, 758 S.W.2d at 753 (internal citations omitted).        As the court further

explained, a plaintiff’s “privacy interests require, at minimum, that [the defendant]

exhaust less intrusive means of discovery before seeking a compulsory . . .

examination. If, however, a plaintiff intends to use expert medical testimony to

prove his or her alleged . . . condition, that condition is placed in controversy and

the defendant would have good cause for an examination under Rule 167a,” the

predecessor rule to Rule 204.1. Id.

B.    Analysis

      In order to analyze the trial court’s order, the first question we must address

is the number and nature of examinations that APS sought to compel.

      APS filed a single motion, captioned “Defendant’s Motion for Plaintiff to

Submit to Physical Examination,” in which APS stated that it was “seeking to have


                                         13
[Hewitt] undergo a physical examination by” a doctor and a rehabilitation center.

(Emphasis added.) And in the conclusion of its motion, APS asked that the trial

court “compel Plaintiff to attend a physical examination by Ramsey J. Choucair,

M.D. and Ergonomic Rehabilitation of Houston at a time and place agreed upon by

the parties.” (Emphasis added.)     It also, however, stated that it was “willing to

have the examinations take place simultaneously” and that “the examinations

sought by [APS] are not intrusive, invasive, or unnecessarily physically

uncomfortable.” (Emphasis added.) We note that Hewitt’s response referred to

the requested relief as “examinations,” in the plural, at least twice. APS’s reply in

support of its motion continued to refer to the requested relief using a mix of

singular and plural forms of the word “examination.”

      The record is clear that APS sought two different types of examinations, the

parties’ inconsistent use of plurals notwithstanding.     The first is the medical

examination to be performed by Dr. Choucair, a plastic surgeon retained by APS,

with which APS hopes to counter findings by Dr. Roman, Hewitt’s expert witness.

The second is the “functional capacity evaluation and impairment rating in order to

determine [Hewitt’s] ability to return to work,” to be performed by ErgoRehab.

While APS offered to consolidate these examinations into a single event, it

nonetheless requested two different types of examination, by two or more




                                         14
individuals, and thus made two requests for relief under Rule 204.1. See TEX. R.

CIV. P. 204.1(a)(1).

      1.     Medical examination

      We turn first to the request for a medical examination. The parties do not

dispute that APS’s request for this examination satisfied the requirements of Rule

204.1(a)(1) that the motion be made no later than 30 days before the end of any

applicable discovery period and the examination be performed by a qualified

physician. See id. We therefore turn to the requirements of Rule 204.1(c)(1): (1) a

showing of good cause and (2) establishing that Hewitt’s physical condition “is in

controversy.” TEX. R. CIV. P. 204.1(c)(1).

      We analyze whether a movant has shown “good cause” under Rule 204.1

using the factors set forth by the Supreme Court of Texas in Coates v. Whittington,

758 S.W.2d 749 (Tex. 1988).        See Coates, 758 S.W.2d at 753 (analyzing

compelled mental examination under predecessor rule); see also In re H.E.B.

Grocery Co., No. 15-0625, 2016 WL 3157533, at *2 (Tex. May 27, 2016)

(applying Coates to Rule 204.1 request for medical examination); In re

Transwestern Publ’g Co., 96 S.W.3d 501, 505 (Tex. App.—Fort Worth 2002, orig.

proceeding) (applying Coates to Rule 204.1 request for medical examination, but

noting that Rule 204.1 goes further than predecessor rule by requiring both good

cause and showing that condition is “in controversy”). That is, we look to see



                                        15
whether (1) “an examination is relevant to issues that are genuinely in controversy

in the case,” (2) the movant has shown “a reasonable nexus between the condition

in controversy and the examination sought,” and (3) the movant has

“demonstrate[d] that it is not possible to obtain the desired information through

means that are less intrusive than a compelled examination.” Coates, 758 S.W.2d

at 753; see also H.E.B., 2016 WL 3157533, at *2; In re Transwestern, 96 S.W.3d

at 505.

      APS has satisfied the first factor by showing that the examination is relevant

to issues genuinely in controversy. See Coates, 758 S.W.2d at 753. APS must

show both that the examination is relevant to Hewitt’s condition and that “the

requested examination will produce, or is likely to lead to, evidence of relevance to

the case.” Coates, 758 S.W.2d at 753 (emphasis added). At the heart of Hewitt’s

petition are the “severe physical injuries” that he suffered, and he bases his claim

for actual damages on those injuries themselves and their effects, including the past

and future medical expenses associated with treatment for the injuries and a

reduction in earning capacity. He identified as potential expert witnesses regarding

his medical condition and treatment not only Dr. Roman, but at least six other

physicians. Moreover, Hewitt does not dispute that his medical condition is in

controversy, either in this proceeding or in his response to APS’s motion.




                                         16
      APS has also shown that the requested examination “will produce, or is

likely to lead to, evidence of relevance to the case.” See Coates, 758 S.W.2d at

753. When one party’s expert offers opinions on future medical expenses, the

other party often has “no opportunity to explore and develop evidence that

supports theories that contradict the theories espoused by” that expert, absent an

independent medical examination. See Ten Hagen, 435 S.W.3d at 871. APS

requests an independent medical examination to permit Dr. Choucair to “provide

opinions related to [Hewitt’s] injuries and anticipated future medical treatment,”

for the express purpose of challenging Dr. Roman’s opinions. By definition, this

request constitutes an attempt to produce evidence relevant to Hewitt’s claims.

      The second Coates factor is whether APS has shown “a reasonable nexus

between the condition in controversy and the examination sought.” Coates, 758

S.W.2d at 753.     Again, Hewitt has not disputed that a nexus exists between

Hewitt’s medical condition and the medical examination requested by APS. And

for the reasons discussed in connection with the first Coates factor, we hold that

such a nexus clearly exists. Indeed, the entire purpose of the examination is to

assess Hewitt’s injuries and future medical needs related to those injuries.

      With respect to the third Coates factor, whether APS has “demonstrate[d]

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

intrusive than a compelled examination,” Hewitt and APS disagree sharply. See



                                         17
Coates, 758 S.W.2d at 753 (identifying third factor in context of compelled mental

examination). Hewitt argues that APS must exhaust all other avenues that might

permit it to obtain the desired information, before requesting a Rule 204.1

examination.    Indeed, as the Supreme Court of Texas explained in Coates, a

party’s “privacy interests require, at minimum, that [the opposing party] exhaust

less intrusive means of discovery before seeking a compulsory . . . examination.”

Id. But as the court immediately clarified, “[i]f, however, a plaintiff intends to use

expert medical testimony to prove his or her alleged . . . condition, that condition is

placed in controversy and the defendant would have good cause for an

examination.” Id. The court thus recognized the tension between a plaintiff’s

privacy rights and a defendant’s need to obtain evidence with which it can

challenge the conclusions of the plaintiff’s expert witnesses.

      The means of obtaining information that are less intrusive than a compelled

examination include “deposing the opposing party’s doctors,” “attempting to

obtain copies of medical records, . . . or relying on existing expert witness reports

already filed in the case.”      Ten Hagen, 435 S.W.3d at 869–70 (collecting

authorities). “The adequacy of these measures must still be evaluated in light of

the fair trial standard, however.”      Id. at 870.    “In many cases the treating

physician’s notes, the medical records of the complaining party, and expert witness

reports filed by other parties cannot serve these legitimate purposes.” Id.



                                          18
      “In general, and particularly where the intended examination is not intrusive,

invasive or unnecessarily physically uncomfortable, parties are permitted to

explore matters not covered by the opposing party’s examinations, make their own

observations, and attempt to discover facts that may contradict the opinions of the

opposing party’s expert witnesses.” Id. In such cases, “fundamental fairness

dictates” that both parties’ experts be permitted to conduct an examination, lest one

side “be at a severe disadvantage in the ‘battle of experts.’” Laub v. Millard, 925

S.W.2d 363, 365 (Tex. App.—Houston [1st Dist.] 1996, orig. proceeding);

Sherwood Lane Assocs. v. O’Neill, 782 S.W.2d 942, 945 (Tex. App.—Houston [1st

Dist.] 1990, orig. proceeding).

      This is such a case. Dr. Roman submitted a report, of which at least four

pages and multiple “diagnostic conclusions” are based exclusively upon his own

examination of Hewitt, rather than on Hewitt’s medical records or other sources.

Under these facts, alternative information sources such as physicians’ notes,

medical records, and a deposition of Dr. Roman simply do not suffice as

substitutes for an independent medical examination.           Permitting Hewitt to

introduce expert testimony based on a physical examination while denying APS

the opportunity to do the same violates the fair trial standard by placing APS at too

great a disadvantage in the “battle of experts.”       Laub, 925 S.W.2d at 365;

Sherwood Lane, 782 S.W.2d at 945; see also Ten Hagen, 435 S.W.3d at 870.



                                         19
      Further, APS lacks any adequate remedy by appeal. Without relief from the

trial court’s order denying APS’s Rule 204.1 motion with respect to a medical

examination, APS will be forced to go to trial without an opportunity to adequately

defend itself, making an appeal an inadequate remedy. See, e.g., Ten Hagen, 435

S.W.3d at 864 (appeal inadequate when party is denied physical examination to

which it is entitled and which it needs to contradict opposing party’s expert

witness); Transwestern, 96 S.W.3d at 508 (same holding with respect to mental

examination).

      We conclude that APS has shown that Hewitt’s medical condition is in

controversy and that good cause exists for a Rule 204.1 medical examination. The

trial court abused its discretion by denying APS’s motion to compel such an

examination, and APS lacks an adequate remedy by appeal. We therefore grant the

petition for writ of mandamus with respect to the request for a medical

examination.

      2.    “Functional capacity evaluation and impairment rating” by
            ErgoRehab

      APS, has not, however, met its burden with respect to the requested

“functional capacity evaluation and impairment rating” by ErgoRehab.

      As a threshold matter, APS has not explained—either in its Rule 204.1

motion or in its petition for writ of mandamus—what the proposed examination

involves, nor has it explained why such an examination is necessary. Rather, in the


                                        20
mandamus petition, APS only mentions the examination and ErgoRehab one time

each. And in the Rule 204.1 motion, APS makes no attempt to explain what

information the examination would reveal, why that information is or might lead to

relevant evidence, or why such information cannot be obtained by less intrusive

means. While it characterizes the request for “functional capacity evaluation and

impairment rating” as “simply a request by Defendant [for Hewitt] to submit to an

exam by a healthcare provider as ordered by his treating doctor,” that

characterization is disputed, and APS makes no attempt to show that it has “good

cause” for such a request or that the Rules of Civil Procedure allow for it.

      Even assuming that the “functional capacity evaluation and impairment

rating” examination is relevant to Hewitt’s physical condition and might lead to

relevant evidence, APS is not entitled to such an examination. Rule 204.1 provides

for motions to compel a party to “submit to a physical . . . examination by a

qualified physician.”    TEX. R. CIV. P. 204.1(a)(1).       APS’s motion, like its

mandamus petition, is silent regarding who would perform the “functional capacity

evaluation and impairment rating” examination, the nature of that examination, or

whether it would be performed by a “qualified physician.” For this reason, APS

has failed to show that its motion satisfies the requirements of Rule 204.1. See

Coates, 758 S.W.2d at 751 (trial court’s order was invalid when rule required

examination by “physician” and trial court ordered examination by psychologist);



                                          21
Moore v. Wood, 809 S.W.2d 621, 622–24 (Tex. App.—Houston [1st Dist.] 1991,

orig. proceeding) (granting writ of mandamus when trial court ordered “vocational

rehabilitation interview and assessment of the plaintiff,” as such exam was not

permitted by rules allowing for examination only by doctors or psychologists).

      APS has failed to demonstrate either that a “functional capacity evaluation

and impairment rating” by ErgoRehab constitutes available relief under Rule of

Civil Procedure 204.1 or that good cause existed for the trial court to grant such

relief. We therefore deny the petition for writ of mandamus in cause number 01-

15-00758-CV with respect to that examination.

                                     Sanctions

      We now turn to APS’s challenge to the trial court’s sanctions order.

A.    Applicable Law

      “A fundamental tenet of our legal system is that each and every trial is

decided on the merits of the lawsuit being tried.” Brookshire Bros. v. Aldridge,

438 S.W.3d 9, 13 (Tex. 2014). However, when spoliation of evidence occurs,

“spoliation can deprive the factfinder of relevant evidence.” Id. “Trial courts

therefore must have wide discretion in remedying such conduct and in imposing

sanctions to deter it.”   Id.   “However, the imposition of a severe spoliation

sanction, such as a spoliation jury instruction, can shift the focus of the case from




                                         22
the merits of the lawsuit to the improper conduct that was allegedly committed by

one of the parties during the course of the litigation process.” Id.

      “In some circumstances, a missing piece of evidence like a photograph or

video can be irreplaceable.” Id. at 17. “Testimony as to what the lost or destroyed

evidence might have shown will not always restore the nonspoliating party to an

approximation of its position if the evidence were available; sometimes a picture is

indeed worth a thousand words.” Id.

      “[W]hether a party spoliated evidence and whether a particular remedy is

appropriate are questions of law for the trial court,” as opposed to a question of

fact for the jury. Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 488 (Tex. 2014)

(citing Brookshire Bros., 438 S.W.3d at 20). To find that evidence has been

spoliated, “the trial court must make affirmative determinations as to two

elements:” first, that “the party who failed to produce evidence . . . had a duty to

preserve the evidence,” and “[s]econd, the nonproducing party must have breached

its duty to reasonably preserve material and relevant evidence.” Id.

      When evidence is spoliated, “courts have broad discretion to utilize a variety

of remedies to address spoliation, including the spoliation instruction.” Brookshire

Bros., 438 S.W.3d at 17. But “[w]hile the trial court’s discretion to remedy an act

of spoliation is broad, it is not limitless.” Petroleum Sols., 454 S.W.3d at 489.

Rather, courts follow a two-part test to determine whether a particular sanction for



                                          23
discovery abuse is just. Id. “First, a direct relationship must exist between the

offensive conduct, the offender, and the sanction imposed.”          Id.   “Second, a

sanction must not be excessive, which means it should be no more severe than

necessary to satisfy its legitimate purpose.” Id. “This prong requires the trial court

to consider the availability of lesser sanctions and, ‘in all but the most exceptional

cases, actually test the lesser sanctions.’” Id. (quoting Cire v. Cummings, 134

S.W.3d 835, 841 (Tex. 2004)).

      A spoliation instruction informs the jury that it must presume that the

missing evidence would have harmed the case of the party responsible for the

unavailability of the evidence. Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d 718,

724 (Tex. 2003). The “very purpose” of the spoliation instruction is to “nudge or

tilt the jury toward a finding adverse to the alleged spoliator.” Brookshire Bros.,

438 S.W.3d at 17 (internal quotation marks omitted) (quoting Wal–Mart Stores,

106 S.W.3d at 724). As a result, a spoliation instruction “often ends litigation

because it is too difficult a hurdle for the spoliator to overcome.” Id. (internal

quotation marks omitted) (quoting Zubulake v. UBS Warburg L.L.C., 220 F.R.D.

212, 219 (S.D.N.Y. 2003)).        Nonetheless, the purpose of any sanction for

spoliation is “to impose an appropriate remedy so that the parties are restored to a

rough approximation of what their positions would have been were the evidence

available.” Id. at 18 (citing Wal–Mart Stores, 106 S.W.3d at 721).



                                         24
      “[W]hen a trial court imposes discovery sanctions which have the effect of

precluding a decision on the merits of a party’s claims—such as by striking

pleadings, dismissing an action, or rendering default judgment—a party’s remedy

by eventual appeal is inadequate, unless the sanctions are imposed simultaneously

with the rendition of a final, appealable judgment.” TransAmerican Nat. Gas

Corp. v. Powell, 811 S.W.2d 913, 920 (Tex. 1991). In such a situation, a party

may seek mandamus relief to correct an abuse of discretion by the trial court. Id.

B.    Analysis

      To decide this petition for writ of mandamus, we must consider two

questions.   First, we must determine whether the evidence was spoliated.

Petroleum Sols., 454 S.W.3d at 488. Second, we must examine each of the

sanctions imposed by the trial court and determine whether that sanction was an

appropriate remedy for the conduct at issue. Id.

      To obtain sanctions for spoliation, Hewitt first had to prove that spoliation

occurred. As the Supreme Court of Texas has explained in Petroleum Solutions,

Inc. v. Head, 454 S.W.3d 482, 488 (Tex. 2014), this requires two affirmative

determinations: (1) that APS had a duty to preserve evidence and (2) that APS

breached that duty. Id.




                                         25
      1.     Duty to preserve the videotape

      A person has a duty to preserve evidence “only when a party knows or

reasonably should know that there is a substantial chance that a claim will be filed

and that evidence in its possession or control will be material and relevant to that

claim.” Wal–Mart Stores, 106 S.W.3d at 722 (citing Nat’l Tank Co. v. Brotherton,

851 S.W.2d 193, 204 (Tex. 1993)). A “substantial chance” of litigation “does not

[mean] any particular statistical probability that litigation will occur; rather, it

simply means that litigation is more than merely an abstract possibility or

unwarranted fear.” Nat’l Tank Co., 851 S.W.2d at 204 (citation and internal

quotation marks omitted). When a reasonable person would conclude from the

severity of an accident or other circumstances that a substantial chance of litigation

exists, a duty to preserve evidence arises. Wal–Mart Stores, 106 S.W.3d at 722

(citing Nat’l Tank Co., 851 S.W.2d at 204).

      In his motion for sanctions, Hewitt argued that APS’s duty to preserve the

video of the incident arose from a variety of incidents and circumstances: (1) the

very nature of Hewitt’s injuries; (2) Hewitt’s statements that he might hire counsel,

while he was still in the hospital; (3) Baker’s actions in showing the video to

Hewitt and Hewitt’s girlfriend; (4) Hewitt’s statements threatening litigation in

March 2014; (5) the commencement of litigation later that month; (6) service of

the suit in June 2014; and (7) the preservation letter that Hewitt’s counsel sent to



                                         26
APS five days later. APS argued, in response, that Hewitt did not notify APS that

it should preserve the video—and thus APS had no reason to believe that it should

do so—until counsel sent the preservation letter in July 2014. APS argues that

Hewitt’s statements about possibly hiring an attorney—which Baker testified were

spoken “fairly early on”—did not put APS on notice because there is no evidence

tying those statements to any particular time or demonstrating that the video still

existed at that time.5

      Baker’s testimony alone supports a finding that APS had a duty to preserve

the video from the moment of Hewitt’s injuries. Baker testified that he knew,

immediately after the accident, that “it was an emergency situation” and that

Hewitt had suffered burns to at least three limbs and his face, burns severe enough

to cause skin to separate from Hewitt’s body within minutes of the explosion.

Baker also visited Hewitt at least twice in the hospital, where he not only saw

Hewitt’s condition, but also showed Hewitt the video in question. He also testified


5
      APS also contends that Hewitt told Baker that he intended to continue taking
      classes for which APS was paying; that he “felt fine other than his left arm;” that
      “there was [nothing] else that [APS] need[ed] to do” for Hewitt; and that, when he
      returned to work, he would repay to APS bail money that APS had paid on his
      behalf and that had been returned to Hewitt by mistake. According to APS, these
      statements indicate that Hewitt was not considering litigation until March 2014,
      the first time that he affirmatively stated that he had found an attorney, rather than
      that he was merely considering hiring one. But none of the statements identified
      by APS bear on whether Hewitt actually intended to file suit against APS for his
      injuries. We reject APS’s contention that these statements, taken in context,
      would lead a reasonable person to conclude that APS did not face a substantial
      chance of litigation.

                                            27
that, “[a]t the first look” at the video he agreed with Hewitt that Guzman’s action

in opening a valve caused the explosion and fire that injured Hewitt. Baker went

so far as to terminate Guzman, and one of the reasons in the termination report was

that Guzman had injured a fellow employee, which Baker acknowledges was a

reference to Hewitt. While Baker insists that he no longer believes that Guzman’s

actions caused Hewitt’s injuries, he testified that he “definitely” thought they did

when he visited Hewitt in the hospital, and, “At the time [of Guzman’s

termination] that’s what we believed.” In the aftermath of the incident, Baker tried

to determine the cause of the explosion and fire. In particular, he investigated

whether the use of a 40-pound bucket, as opposed to a smaller bucket, contributed

to the incident. To answer that question, APS employees “reviewed . . . the tapes

three weeks before this accident,” but APS determined that its employees were

using 40-pound buckets for at least those three weeks.

      Taken together, Baker’s own testimony conclusively demonstrates that he

(1) saw an employee under his supervision suffering from severe injuries sustained

on the job; (2) considered the situation to be an “emergency;” (3) drove Hewitt to a

hospital himself; (4) knew that video existed of the incident causing the injury;

(5) watched the video himself the same day; (6) showed the video to Hewitt on two

occasions and Hewitt’s girlfriend once, at Hewitt’s request; (7) initially believed

that the video showed that Guzman, an APS employee, caused the accident;



                                        28
(8) terminated Guzman’s employment based in part on that belief; and (9) watched

not only the video of the incident but also three weeks’ worth of preceding videos

to investigate the causes of the incident. The trial court reasonably could have

concluded that a reasonable person, given the severity of the accident and other

circumstances identified by Baker, (1) would believe APS faced a “substantial

chance” of litigation over the incident, “more than merely an abstract possibility or

unwarranted fear;” and (2) would appreciate the central importance of the video in

understanding what had happened.        See Nat’l Tank Co., 851 S.W.2d at 204

(citation and internal quotation marks omitted). Under these circumstances, the

trial court acted within its discretion in concluding that APS had a duty to preserve

the videotape from the date of the incident.

      2.     Breach of the duty to preserve

      APS does not dispute that the video was destroyed by the automatic

operations of its security system. Because we have already held that the trial court

did not abuse its discretion in concluding that APS had a duty to preserve the

video, APS was required to take reasonable steps to preserve the video. On this

record, APS has not demonstrated that it took such steps. Before we can review

the trial court’s imposition of sanctions, however, we must determine whether the

spoliation was intentional or merely negligent, as well as whether and to what

extent Hewitt was prejudiced by its destruction.



                                         29
      A party’s destruction of or failure to produce evidence can support sanctions

for spoliation regardless of whether the spoliation was negligent or intentional.

Brookshire Bros., 438 S.W.3d at 19–20. Merely negligent spoliation will not

support a finding that evidence is relevant and harmful to the spoliating party

without “some proof about what the destroyed evidence would show.” Brookshire

Bros., 438 S.W.3d at 22 (quoting Trevino v. Ortega, 969 S.W.2d 950, 958 (Tex.

1998)).

      The supreme court’s opinion in Brookshire Brothers v. Aldridge, 438

S.W.3d 9 (Tex. 2014) is instructive here. In that case, the court considered a slip-

and-fall case, in which the plaintiff did not tell store employees at the time of his

fall that he had been injured, and the store did not complete an accident report. Id.

at 15. The plaintiff later went to an emergency room because of pain, and returned

to the store a few days later to report his injuries. Id. The company that owned the

store where the plaintiff was injured voluntarily preserved eight minutes of

surveillance video footage, covering the time from just before the plaintiff entered

the store until shortly after he fell. Id. The plaintiff requested a copy of the video

less than two weeks after his fall, but the store refused to release it because it had

only one copy. Id. The system automatically recorded over the remainder of the

video within approximately 30 days of the fall. Id.




                                         30
      Nearly a year later, after the company ceased paying the plaintiff’s medical

expenses and decided to deny coverage, the plaintiff’s attorney requested two-and-

a-half hours of additional footage, but the video had been recorded over months

earlier. Id. Only then did the plaintiff file suit. Id. The plaintiff requested a

spoliation instruction. Id. at 16. The trial court allowed the jury to hear evidence

regarding whether the defendant had spoliated the video, submitted a spoliation

instruction to the jury, and allowed the jury to decide, during its deliberations on

the merits of the case, whether spoliation occurred. Id.

      The court held that a spoliation analysis requires “a two-step judicial

process,” by which the trial court must first “determine, as a matter of law, whether

a party spoliated evidence,” and then, “if spoliation occurred, assess an appropriate

remedy.” Id. at 14. The court further held that a spoliation instruction was

warranted only when a party intentionally, rather than negligently, spoliated

evidence. Id. at 23. But the court expressly stated that “intentional” spoliation

“includes the concept of ‘willful blindness,’ which encompasses the scenario in

which a party does not directly destroy evidence known to be relevant and

discoverable, but nonetheless allows for its destruction.” Id. at 24–25. The court

also identified a “narrow exception” to the intentionality requirement, explaining

that a spoliation instruction for negligent spoliation might be appropriate “if the act

of spoliation, although merely negligent, so prejudices the nonspoliating party that



                                          31
it is irreparably deprived of having any meaningful ability to present a claim or

defense.” Id. at 25–26.

      Under the facts of Brookshire Brothers, the court concluded that there was

no evidence that the company “saved the amount of footage that it did in a

purposeful effort to conceal relevant evidence;” rather, it “preserved exactly what it

was asked to preserve—footage of the fall.” Id. at 28.        It emphasized that there

was no evidence that any company “employee viewed any additional footage from

that day other than the eight preserved minutes,” and stressed, “Had Brookshire

Brothers allowed all footage of the incident to be destroyed, the outcome might be

different.” Id. The court also noted that the plaintiff had sufficient evidence

available to prove the elements of his claim, including video depicting the fall

itself, the area around the fall, and the actions of various store employees, as well

as the store’s incident report confirming that the plaintiff had slipped on grease that

leaked onto the floor. Id. The court concluded that the trial court abused its

discretion both in permitting the jury to consider evidence of spoliation and in

submitting a spoliation instruction because there was no evidence that the

defendant intentionally destroyed evidence or that the plaintiff “was deprived of

any meaningful ability to present his claim to the jury at trial.” Id. at 30.

      By contrast, APS viewed all available video up to and through the incident

but made no effort to save any video at all, despite the obvious severity of Hewitt’s



                                           32
injuries, Hewitt’s requests to see the video, and the fact that APS itself found the

video helpful in reconstructing the incident and conducting “experiments” by

“repeating the steps that happened that day,” steps that Baker knew only from

watching the video. Instead of preserving the video, APS made use of it, then did

not endeavor to keep it from being destroyed by an automated process. Under the

circumstances of this case, the trial court could reasonably have concluded, within

its sound discretion, that APS’s actions constitute at least willful blindness to the

destruction of evidence. Such destruction qualifies as intentional spoliation. See

id. at 24–25.

      Even if APS’s spoliation qualifies as merely negligent and not intentional, it

nonetheless deprived Hewitt of a meaningful opportunity to present his claims.

The trial court had before it Baker’s testimony, including “some proof about what

the destroyed evidence would show,” as required for a spoliation instruction based

on negligent spoliation. Brookshire Bros., 438 S.W.3d at 22. Because APS has

availed itself of the video in defending the case while depriving Hewitt of the right

on a central element of the case—causation—we hold that this case meets the

“narrow exception” allowing for a spoliation instruction for negligent spoliation.

Id. at 25–26.




                                         33
      3.    Prejudice

      Before a trial court can assess sanctions for spoliation, it must consider the

prejudice to the other party. Id. at 22. “Prejudice is evaluated based on the

spoliated evidence’s relevancy to key issues in the case, whether the evidence

would have been harmful to the spoliating party’s case (or, conversely, helpful to

the nonspoliating party’s case), and whether the spoliated evidence was cumulative

of other competent evidence that may be used in its stead.” Petroleum Sols., 454

S.W.3d at 489.

      Applying the Petroleum Solutions factors, the spoliation prejudiced Hewitt.

The video was highly relevant to key issues in the case, in particular when Guzman

acted, when and how the fire and explosion started, whether each actor followed

standard procedures at the facility, and other issues. The video was damaging to

APS’s case and helpful to Hewitt’s, given that even Baker initially believed that

the video showed that Guzman caused the explosion. And the evidence was

unique, rather than cumulative of other evidence. Although Hewitt can provide his

own testimony, examine Baker, impeach Baker with deposition testimony, and rely

upon documents produced by APS, he cannot show a jury the video that provides

the best evidence of the exact sequence of events on the fateful day. Unlike Baker,

who conducted—and, apparently, intends to testify about—“experiments” based

on the events in the video, Hewitt has no evidence other than his own testimony



                                        34
regarding the sequence of events. Hewitt has testified, “[T]here’s no way I [could]

see through the reactor or see behind the reactor where Donny was. The only way

I knew that he was back there is after viewing the video of the accident and I saw

what he did . . . .”

       4.     Spoliation instruction

       The trial court has broad but limited discretion to impose appropriate

sanctions to remedy spoliation. Petroleum Sols., 454 S.W.3d at 489; Brookshire

Bros., 438 S.W.3d at 17.       To determine whether the trial court abused that

discretion, we apply the two-part test set out in Brookshire Brothers and Petroleum

Solutions.

       First, “a direct relationship must exist between the offensive conduct, the

offender, and the sanction imposed.”           Petroleum Sols., 454 S.W.3d at 489;

Brookshire Bros., 438 S.W.3d at 21. “To meet this requirement, a sanction must

be directed against the wrongful conduct and toward remedying the prejudice

suffered by the innocent party.” Petroleum Sols., 454 S.W.3d at 489; Brookshire

Bros., 438 S.W.3d at 21.       Here, a direct relationship exists between (1) the

wrongful conduct of spoliation; (2) APS, the spoliating party; and (3) the trial

court’s attempt to remedy the prejudice suffered by Hewitt by granting a spoliation

instruction. The first requirement is therefore satisfied.




                                          35
      Second, the trial court must not impose an “excessive” sanction, one that is

“more severe than necessary to satisfy its legitimate purpose.” Petroleum Sols.,

454 S.W.3d at 489. “This prong requires the trial court to consider the availability

of lesser sanctions and, ‘in all but the most exceptional cases, actually test the

lesser sanctions.’” Id. (quoting Cire, 134 S.W.3d at 841). The purpose of the

sanction, however, must be “to impose an appropriate remedy so that the parties

are restored to a rough approximation of what their positions would have been

were the evidence available.” Brookshire Bros., 438 S.W.3d at 18 (citing Wal–

Mart Stores, 106 S.W.3d at 721). Given the unique nature of the video and the

absence of any evidence that can satisfy the same function of showing the

sequence and timing of the incident in question, no lesser sanctions could

legitimately remedy the prejudice to Hewitt.          The trial court could not

meaningfully test any lesser sanctions, as the conduct to be remedied is already

complete and the resulting damage done.

      Under the facts of this case, we hold that APS has failed to demonstrate that

the trial court abused its discretion by granting Hewitt’s motion for a spoliation

instruction.

      5.       Striking pleadings

      To strike a party’s pleadings is to impose a remedy “akin to death penalty

sanctions,” so called because they are the most severe sanctions available under the



                                        36
Texas Rules of Civil Procedure. Petroleum Sols., 454 S.W.3d at 489; see TEX. R.

CIV. P. 215.2(b)(5) (trial court may make “an order striking out pleadings or parts

thereof, or staying further proceedings until the order is obeyed, or dismissing with

or without prejudice the action or proceedings or any part thereof, or rendering a

judgment by default against the disobedient party”); Hansen v. Gilbert, No. 01-03-

00863-CV, 2005 WL 327158, at *2 (Tex. App.—Houston [1st Dist.] Feb. 10,

2005, no pet.). Striking a party’s pleadings “foreclose[s] (or at least severely

impede[s]) a party from presenting the merits of its claims or defenses.”

Petroleum Sols., 454 S.W.3d at 490; see also Primo v. Rothenberg, 14-13-00794-

CV, 2015 WL 3799763, at *24 (Tex. App.—Houston [14th Dist.] June 18, 2015,

pet. struck).

       We again apply the two-part test set out in Brookshire Brothers and

Petroleum Solutions to determine whether the trial court abused its discretion by

striking APS’s pleadings. We hold that this sanction was excessive and therefore

fails to meet the second part of the test.

       Under Petroleum Solutions, a sanction must not be “more severe than

necessary to satisfy its legitimate purpose.” Petroleum Sols., 454 S.W.3d at 489.

As the court explained in Petroleum Solutions, the trial court must “consider the

availability of lesser sanctions and, ‘in all but the most exceptional cases, actually

test the lesser sanctions.’” Id. (quoting Cire, 134 S.W.3d at 841). Further, the



                                             37
purpose of the sanction must be “to impose an appropriate remedy so that the

parties are restored to a rough approximation of what their positions would have

been were the evidence available.” Brookshire Bros., 438 S.W.3d at 18 (citing

Wal–Mart Stores, 106 S.W.3d at 721).

      The trial court did not explain why it was necessary to sanction APS both by

granting a spoliation instruction and striking APS’s pleadings. Striking APS’s

pleadings goes beyond the purpose of restoring the parties to “a rough

approximation of what their positions would have been were the evidence

available.”    See Brookshire Bros., 438 S.W.3d at 18.              That purpose was

accomplished by the granting of a spoliation instruction, which requires the jury to

presume that the video was harmful to APS’s defense. See Wal–Mart Stores, 106

S.W.3d at 724.      By both giving a spoliation instruction and striking APS’s

pleadings, the trial court did more than merely level the playing field.             The

spoliation instruction leveled the field, but the trial court’s further action in striking

the pleadings effectively declared the game forfeited.

      Texas courts must exercise caution in imposing death penalty or analogous

sanctions. Indeed, such sanctions are appropriate only as an “exception rather than

the rule.” TransAmerican Nat. Gas, 811 S.W.2d at 919. For example, a pattern of

abuse can support death penalty sanctions. In Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238 (Tex. 1985), the Supreme Court of Texas has affirmed a



                                           38
sanction striking a defendant’s answer and rendering judgment for the plaintiff

when the defendant and his employees failed to appear for their depositions on

three separate occasions without explanation. 701 S.W.2d 238, 241–42 (Tex.

1985) (cited in TransAmerican Nat. Gas, 811 S.W.2d at 919). But the court

overturned a similar sanction when the president of a defendant corporation failed

to appear for a deposition on a single occasion, it was unclear whether the

corporation or counsel was at fault, and nothing in the record indicated that the trial

court “considered imposition of lesser sanctions or that such sanctions would not

have been effective.” TransAmerican Nat. Gas, 811 S.W.2d at 918. The court

explained that such a record “does not show the same pattern of abuse” as the

repeated failures to appear in Downer. Id. at 919.

      Similarly, direct violation of court orders can support death penalty

sanctions. Accordingly, the Supreme Court of Texas sustained sanctions when a

legal-malpractice plaintiff burned 70 to 100 “secret audiotape recordings” between

herself and the defendant lawyer and “laughed with her friends about being a

habitual liar” Cire, 134 S.W.3d at 837. The plaintiff had testified during pretrial

discovery that the tapes existed, yet refused to produce them despite discovery

requests for their production and an order compelling production. Id. When the

defendant moved for sanctions, the plaintiff testified at the sanctions hearing that

she had possession of the tapes, intended to use them against the defendant, and



                                          39
had not destroyed them. Id. Other evidence, however, showed that she had

destroyed them intentionally.      Id.   The trial court found that the plaintiff

“‘flagrantly violated’ four discovery orders . . . refus[ed] to answer deposition

questions, used forged documents ‘to gain an advantage with the court,’ gave

conflicting testimony under oath, and ‘deliberately destroyed and/or concealed

material evidence’ [the audiotapes] that would ‘show [her] claims had no merit.’”

Id. at 838. The trial court therefore struck the plaintiff’s pleadings. Id. The court

of appeals reversed, but a unanimous supreme court reversed the court of appeals

and upheld the sanctions. Id. at 845. Likewise, this Court has affirmed death

penalty sanctions when a plaintiff fabricated an audio tape to support her

workplace-sexual-harassment claims. Daniel v. Kelley Oil Corp., 981 S.W.2d 230,

235 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (en banc) (noting that

fabrication of evidence constitutes third-degree felony).

      No such egregious circumstances are present here. The video was destroyed

before Hewitt filed suit, and thus was not the subject of any discovery requests or

court orders before its destruction. The record contains no indication that APS

violated court orders, destroyed evidence on multiple occasions, fabricated

evidence, or otherwise engaged in any pattern of abuse or other conduct that might

merit placing APS in a worse position than that from which it began.




                                         40
      We hold that the trial court erred in ordering APS’s pleadings stricken

because that sanction was excessive under the facts of this case. A party whose

pleadings are stricken has no adequate remedy by appeal unless the trial court

simultaneously renders a final, appealable judgment. TransAmerican Nat. Gas,

811 S.W.2d at 920. The trial court did not do so here, and APS is therefore entitled

to mandamus relief.

                                      Conclusion

      We conditionally grant each petition for writ of mandamus in part and deny

each in part.

      In cause number 01-15-00758-CV, we conditionally grant the petition with

respect to APS’s requested medical examination by Dr. Choucair. We order the

trial court to rescind its July 17, 2015 order denying APS’s Rule 204.1 motion and

make an order compelling Hewitt to submit to a medical examination by Dr.

Choucair. With respect to the examination by ErgoRehab, we deny the petition.

      In cause number 01-15-01102-CV, we conditionally grant the petition with

respect to the portion of the trial court’s order striking APS’s pleadings. We order

the trial court to rescind that portion of its October 12, 2015 order striking the

pleadings. With respect to the spoliation instruction, we deny the petition.

      We are confident that the trial court will act in accordance with this opinion,

and our writs will issue only in the event that it fails to do so.



                                           41
      We lift the stay of the trial imposed by our order of September 4, 2015.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Bland, and Massengale.




                                        42
