      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00671-CV



                             In re April Sharaf f/k/a April Sanders


                  ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                            MEMORANDUM OPINION


               In this original proceeding, Relator April Sharaf a/k/a April Sanders, the plaintiff in

the underlying proceeding, seeks mandamus relief from the trial court’s order requiring her to submit

to an independent mental examination. See Tex. R. Civ. P. 204.1 (addressing procedure to compel

party to submit to mental or physical examination). This Court stayed the challenged order and

requested a response from real parties in interest on or before November 2, 2018. See Tex. R. App.

P. 52.4 (prohibiting court from granting relief, except temporary relief, before response has been

filed or deadline for response has passed). Real party in interest Liberty Mutual Group, Inc., filed

a response in opposition to Sanders’s petition for mandamus relief.1

               For the following reasons, we lift the stay of the challenged order and deny Sanders’s

petition to the extent that she seeks mandamus relief from the portion of the order requiring her to

submit to an independent mental examination. We, however, conditionally grant her petition to the



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         Liberty Mutual also filed an emergency motion requesting a stay of the entire underlying
proceeding pending this Court’s resolution of this original proceeding. We dismiss this motion
as moot.
extent that she seeks mandamus relief on the ground that the order does not properly specify the

“manner, conditions, and scope of the examination.” See id. R. 204.1(d) (setting forth requirements

of order compelling party to submit to mental or physical examination).


                                           Background

               In the underlying proceeding, Sanders, who is a former employee of Liberty Mutual,

sued Liberty Mutual and its employee Michael Todd West. Sanders’s claims against Liberty Mutual

are for unlawful employment practices stemming from alleged sexual harassment by West, hostile

work environment, and constructive termination of her employment. Her claims against West are

for assault and intentional infliction of emotional distress, and she seeks to hold Liberty Mutual

legally responsible for West’s actions through the doctrines of respondeat superior, vicarious

liability, and imputed liability. She also seeks damages for mental anguish and alleges that she has

“suffered anxiety and panic attacks” and “severe emotional distress.”

               Asserting that Sanders had placed her mental condition in controversy and that good

cause existed, Liberty Mutual filed a motion to compel her to submit to an independent mental

examination under the direction of Liberty Mutual’s retained expert, Christopher B. Ticknor, M.D.

Liberty Mutual requested that Dr. Ticknor “have the same opportunity to examine” Sanders as her

mental health expert had. According to Liberty Mutual, Sanders designated her mental health expert,

who is a clinical psychologist and neuropsychologist, to testify regarding her mental anguish

damages “in large part [based] upon his examination and testing of [Sanders].”

               Sanders filed a response to the motion to compel mental examination. She did not

dispute that her mental condition was in controversy, but she argued that Liberty Mutual had not

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shown “good cause” because it had failed to show what information it was seeking or why the

information was not available through other less intrusive forms of discovery. According to Sanders,

Liberty Mutual had “already been provided with all of [her] relevant medical and mental health

records, including the raw test data relied upon by her own mental health expert.” She also attached

an affidavit from her expert to her response. In the affidavit, the expert described the testing that he

had conducted on Sanders and the “raw data” from that testing that he had supplied to Dr. Ticknor.

                Following a hearing, the trial court signed an order on October 1, 2018, granting

Liberty Mutual’s motion to compel mental examination and ordered Sanders to “submit to an

independent mental examination under the direction of Dr. Ticknor.” The trial court further

ordered that:


        [Sanders] will appear for the examination on October 24, 2018 at 11:00 a.m., at
        4310 Medical Parkway, Suite 101, Austin Texas 78756 and will cooperate with
        the examining team in completing the examination in every respect. The
        independent medical examination will include psychological testing as well as a
        clinical interview.


A few days later, Sanders filed a motion for reconsideration of the order compelling the mental

examination, and the trial court held a subsequent hearing on this motion. At the conclusion of the

hearing, the trial court denied the motion.2

                Following the trial court’s denial of her motion for reconsideration, Sanders filed her

petition for writ of mandamus and motion for emergency relief with this Court. This Court granted




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         According to the transcript from the subsequent hearing, the trial court signed an order
denying the motion, but it is not in the record before us in this original proceeding.

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the motion for emergency relief by order and requested a response from real parties in interest.

See Tex. R. App. P. 52.4. Liberty Mutual filed a response in opposition to the petition for

mandamus relief.


                                               Analysis

                In her petition for mandamus relief, Sanders argues that she does not have an

adequate remedy by appeal and that the trial court abused its discretion in ordering her to submit to

a mental examination because: (i) the order does not specify “the manner, conditions, and scope of

the examination” and (ii) Liberty Mutual failed to show “good cause” for the examination. See Tex.

R. Civ. P. 204.1(c), (d); In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding) (placing burden on relator to show that trial court abused its discretion and that relator

has no adequate remedy by appeal in order to be entitled to mandamus relief). In the context of this

original proceeding, if the trial court abused its discretion by ordering Sanders to submit to a medical

examination under Texas Rule of Civil Procedure 204.1, we conclude that no adequate remedy on

appeal exists and a writ of mandamus may issue. See H.E.B. Grocery Co., 492 S.W.3d at 304–05

(concluding that HEB lacked adequate appellate remedy to challenge trial court’s denial of HEB’s

motion for physical examination of plaintiff). Thus, we turn to Sanders’s issues to determine if she

has shown that the trial court abused its discretion.

                Beginning with her challenge to the order based on the “good cause” requirement in

Rule 204.1(c), we cannot conclude that Sanders has shown that the trial court abused its discretion

by ordering her to submit to an independent mental examination under the direction of Dr. Ticknor.

See Tex. R. Civ. P. 204.1(c); H.E.B. Grocery Co., 492 S.W.3d at 303 (explaining that “purpose of

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Rule 204.1’s good-cause requirement is to balance the movant’s right to a fair trial and the other

party’s right to privacy” and listing requirements for showing “good cause”). The existence, nature,

and extent of Sanders’s mental anguish and emotional distress are relevant to Liberty Mutual’s

defense to her claim for damages, there is a reasonable nexus between the requested mental

examination and her mental condition that is in controversy, and “the desired information cannot be

obtained by less intrusive means.” See H.E.B. Grocery Co., 492 S.W.3d at 303.

                In his affidavit, Sanders’s mental health expert averred that he had conducted a

clinical interview of Sanders, administered psychological testing on her, and was designated as a

testifying expert for her. His examination and testing of Sanders form part of the basis of his expert

opinions.   Liberty Mutual’s motion “merely seeks to allow its competing expert the same

opportunity.” See id. Further, requiring Dr. Ticknor to testify at trial without the benefit of

examining Sanders would place him at a “distinct disadvantage,” see id., in the “battle of the

experts,” see In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 802 (Tex. App.—Houston

[1st Dist.] 2016, orig. proceeding) (“When a plaintiff elects to put his neuropsychological condition

in controversy through expert testimony, the requested examination is not invasive, intrusive, or

uncomfortable, and less intrusive means will not yield the desired information, even-handedness and

fairness require granting the defendant’s requested examination.”); In re Transwestern Publ’g Co.,

96 S.W.3d 501, 507–08 (Tex. App.—Fort Worth 2002, orig. proceeding) (“Fundamental fairness

dictates that relators’ psychiatrist be allowed to examine [the plaintiff]; otherwise relators will be at

a severe disadvantage in the ‘battle of the experts.’” (quoting Sherwood Lane Assocs. v. O’Neill,

782 S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding))).



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                We, however, conclude that Sanders has established that the trial court abused its

discretion to the extent that it ordered the mental examination without specifying the “manner,

conditions, and scope of the examination.” Tex. R. Civ. P. 204.1(d) (requiring the order to be “in

writing” and to “specify the time, place, manner, conditions, and scope of the examination and the

person or persons by whom it is to be made”).3 The challenged order states the time, date, and

location for the mental examination under the direction of Dr. Ticknor, but it fails to comply with the

specificity requirements for the “manner, conditions, and scope of the examination.” See In re Kirby

Inland Marine, LP, No. 01-18-00383-CV, 2018 Tex. App. LEXIS 5475, at *7–10 (Tex.

App.—Houston [1st Dist.] July 18, 2018, orig. proceeding) (discussing considerations in analysis

for determining time and scope of testing that is ordered pursuant to Rule 204.1); Offshore Marine

Contractors, 496 S.W.3d at 803 (explaining that length of interview and quantity and duration of

neuropsychological tests ordered by trial court “are matters for the trial court’s discretion, which




       3
          See, e.g., Fed. R. Civ. P. 35(a)(2) (stating that order requiring party to submit to 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”); Coates v. Whittington,
758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding) (explaining that predecessor rule to Rule 204.1
was derived from Federal Rule of Civil Procedure 35 and that “[f]ederal courts’ construction
of Rule 35 [was] thus helpful to an analysis”); see also Ornelas v. Southern Tire Mart, LLC,
292 F.R.D. 388, 397–99 (S.D. Tex. 2013) (addressing scope and parameters for examination
ordered pursuant to Federal Rule of Civil Procedure 35); Simms v. City of San Antonio,
No. SA-18-CV-00211-DAE, 2018 U.S. Dist. LEXIS 183073, at *10 (W.D. Tex. Oct. 25, 2018,
order) (ordering plaintiff to undergo medical examination that “will consist of joint clinical interview
lasting approximately two hours and approximately three hours of standardized testing administered
by Dr. Cooper, or a qualified person under his direction”); Shadix-Marasco v. Austin Reg’l Clinic
P.A., No. A-09-CA-891 LY, 2011 U.S. Dist. LEXIS 54559, at *15–20 (W.D. Tex. May 20, 2011,
order) (explaining specificity requirements for ordering examination pursuant to Federal
Rule of Civil Procedure 35 and collecting cases addressing orders that complied with
specificity requirements).

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must by exercised by considering the fair-trial standard”). The order states that the “independent

medical examination will include psychological testing as well as a clinical interview.” Although

we agree with Liberty Mutual that the trial court was not required to list the specific tests that will

be administered, the order does not limit the scope of the examination to the identified testing and

interview or place other parameters on the examination, such as limiting the testing to standardized

testing or placing a limitation on the duration of the testing and interview.


                                             Conclusion

                To the extent that Sanders challenges the portion of the order requiring her to submit

to an independent mental examination under the direction of Dr. Ticknor, we deny her petition for

mandamus relief. However, we conditionally grant her petition to the extent that she seeks

mandamus relief because the order does not comply with the specificity requirements as to the

“manner, conditions, and scope of the examination” under Rule 204.1(d). We are confident that the

trial court will vacate this portion of the order and modify it in accordance with this opinion. We

instruct our clerk to issue the writ only if the trial court fails to comply with this opinion.



                                                __________________________________________
                                                Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Filed: November 5, 2018




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