                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-17-00382-CV
                             _________________


 IN RE GERDAU AMERISTEEL US, INC., ERIC GLYNN DAIGLE, AND
                 TORRY DEVON VOLRIE

________________________________________________________________________

                              Original Proceeding
                58th District Court of Jefferson County, Texas
                          Trial Cause No. A-197,282
________________________________________________________________________

                         MEMORANDUM OPINION

      In this mandamus proceeding, Gerdau Ameristeel US, Inc., Eric Glynn

Daigle, and Torry Devon Volrie, Relators and Defendants in the court below, seek a

writ of mandamus directing the trial court to order Kirk Howard McCarty, Real Party

in Interest and the Plaintiff in the court below, to return to an IME doctor to

“complete his independent medical examination” and to answer the IME doctor’s

questions regarding “What happened?” in the accident and questions that flow from

that threshold question. Relators further request a writ of mandamus directing the


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trial court to order Plaintiff McCarty to pay the costs when the independent medical

examination is re-convened and completed. We stayed further proceedings in the

trial court and requested a response to the mandamus petition. See Tex. R. App. P.

52.8(b)(1), 52.10. The Real Party in Interest filed a response to the petition.

      According to the record now before us, the Defendants filed a Motion for

Reconsideration with the trial court, arguing that Plaintiff’s failure to fully

participate in the interview portion of the IME impaired their ability to complete the

IME. The trial court held a hearing on the motion, heard testimony from the IME

doctor, viewed the video from the IME, and thereafter concluded that the IME was

complete, and denied Defendants’ request to compel McCarty to return to answer

the questions.

      In their mandamus petition the Relator Defendants complain that they were

unable to complete the examination because McCarty refused to answer questions

about “what happened in the accident[.]” Relators argue that “[w]ithout a full IME

that complies with In re HEB[1] and the AMA guidelines, Relators are per se


      1
        In re HEB Grocery Co., L.P., 492 S.W.3d 300 (Tex. 2016) (per curiam)
(holding the trial court abused its discretion by denying HEB’s request for an IME
after HEB satisfied the requirements of Rule 204.1); see also Tex. R. Civ. P. 204.1.
Unlike In re HEB, the trial court granted Relators’ request for an IME and one was
conducted. Relators are arguing that the examiner could not complete the IME
because McCarty refused to answer the question, “What happened?” Therefore,
HEB is inapposite.
                                           2
prejudiced because the IME conducted by Dr. Rosenfield—as opposed to the

examinations performed by Plaintiff’s medical providers—is inherently unequal.”

In the Motion for Rehearing, the Relator Defendants also argued that the refusal of

McCarty to answer questions about the accident deprived “Dr. Rosenfield of

information that he requires,” and that if the trial court did not order McCarty to

answer the questions it would then enable the Plaintiff to make “Daubert/Robinson

challenges” to Dr. Rosenfield’s opinions because he had incomplete information.

      The video of the IME was introduced at the hearing and the record reflects

that the trial court reviewed the video before making its ruling. The video indicates

that the entire IME lasted for approximately 31 minutes. At about four minutes into

the interview segment of the IME, the following exchange occurred:

      Q. (Dr. Rosenfield) Can you tell me what happened in the accident that
      you recall, not what people told you?
      A. (McCarty) I’m just here for a physical exam. I’m not here to answer
      questions about my accident or anything like that.
      Q. (Dr. Rosenfield) I’m [just asking], you don’t want to…
      A. (McCarty) I don’t want to discuss my accident with you.

      Thereafter, Dr. Rosenfield asked additional questions, McCarty answered

those questions, and Dr. Rosenfield conducted a physical examination. Dr.

Rosenfield testified by affidavit and live at the hearing that he was unable to

“complete” his examination because McCarty would not answer questions about

what happened in the accident. According to Dr. Rosenfield, he received and
                                         3
reviewed McCarty’s Oral Deposition, but as a physician he would have asked

different questions about the accident and mechanism of injury than what the

attorneys asked in the deposition. During the hearing, the Defendants also referenced

and introduced a document from an article entitled “Standards for Independent

Medical Examinations” that states it was “published by the AMA, American

Medical Association, in ‘The Guides Newsletter’ November/December 2005

edition[.]” Therein, the article indicates the examiner should obtain a history which

includes, in part, asking the patient to describe “how and when the injury/illness

occurred: (Mechanism of injury).”

      Mandamus will issue only when the petition and record establish a clear abuse

of discretion for which the relator has no adequate remedy at law. See 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). After

reviewing the mandamus petition, response, and record, we conclude that Relators

have not shown that they are entitled to mandamus relief. See Tex. R. App. P.

52.8(a).2 Accordingly, we lift our stay order and deny the petition for a writ of

mandamus. Id.


      2
        We note that there is nothing in the record now before us indicating that any
party has filed or that the trial court has considered a Daubert/Robinson challenge
to the expert’s testimony. See E.I. du Pont de Nemours & Co. v. Robinson, 923
                                         4
      PETITION DENIED.



                                                        PER CURIAM


Submitted on October 30, 2017
Opinion Delivered December 7, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.




S.W.2d 549, 556 (Tex. 1995) (adopting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 591-92 (1993)). In the event of such a challenge, the trial court could
reconsider Relator’s request to re-convene the IME and its ruling might be subject
to further review by this Court in a subsequent mandamus proceeding or appeal.
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