Conditionally Grant and Opinion Filed this 19th day of June, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00539-CV

                     IN RE TEN HAGEN EXCAVATING, INC., Relator

                  Original Proceeding from the County Court at Law No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. CC-11-00454-A

                                          OPINION
                          Before Justices Moseley, Fillmore, and Evans
                                    Opinion by Justice Evans

       Relators filed this mandamus proceeding after the trial court refused to order the physical

examination of one of the parties in this case. We conditionally grant relief.

                             FACTUAL AND PROCEDURAL CONTEXT
       The factual and procedural context in which the motion for a physical examination arose

is somewhat unusual. This is a personal injury case arising from a collision involving the vehicle

in which real party in interest, Jose Castro-Lopez, was traveling. On December 22, 2011,

Castro-Lopez intervened in an already-pending lawsuit regarding the accident. Castro-Lopez

claims to have sustained significant injuries and damages to his hand, wrist and arm in the

accident. In addition to recovery for past damages, he seeks damages for continuing and future

physical pain, mental anguish, physical impairment, and future medical expenses for a second

operation recommended by his treating physician.
       An agreed level III scheduling order is in effect in the case. Under the scheduling order,

the expert designation deadline was December 5, 2013, and the deadline for completion of

discovery was December 20, 2013. Castro-Lopez designated his treating physician, Thomas C.

Diliberti, M.D., as one of his medical experts. Relator, Ten Hagen Excavating, Inc., initially

designated Charles Crane, M.D. as its medical expert. Dr. Crane filed a controverting affidavit

concerning necessary costs and services pursuant to chapter 18 of the Texas Civil Practice and

Remedies Code. Castro-Lopez moved to strike Dr. Crane’s controverting affidavit. On October

25, 2013, Dr. Crane died. The trial court granted Castro-Lopez’s motion to strike Dr. Crane’s

chapter 18 affidavit on November 19, 2013. At the same time, the trial court extended the

deadline for Ten Hagen to file controverting affidavits under chapter 18 of the civil practice and

remedies code until December 12, 2013. The trial court did not further extend the deadlines

under the scheduling order for the designation of experts or the completion of discovery.

       Ten Hagen was able to obtain a new expert, John Sklar, M.D., within the time frame

ordered by the court. Ten Hagen filed a motion for a physical examination of Castro-Lopez by

Dr. Sklar on December 10, 2013, and a new chapter 18 affidavit in which Dr. Sklar was the

affiant on December 12, 2013. Noting that in Dr. Diliberti’s treatment records of an April 18,

2013 examination of Castro-Lopez Dr. Diliberti for the first time reported ulnar sensory loss, Dr.

Sklar suggested in his chapter 18 affidavit that “an additional medical evaluation would shed

further light” on Castro-Lopez’s claim of ulnar sensory loss. Dr. Sklar’s affidavit further states

that Dr. Diliberti had made “a wide variety of diagnoses here that do not necessarily fit together

nor are they all reasonably considered to be sequella of the motor vehicle collision.” The trial

court conducted a hearing on the motion for physical examination and denied the motion on

March 24, 2014. Ten Hagen filed this mandamus proceeding, arguing that the trial court clearly

abused its discretion in denying its motion for a physical examination of Castro-Lopez.

                                               –2–
                              APPROPRIATENESS FOR MANDAMUS REVIEW

Standard for Granting Mandamus Relief

       Mandamus is an extraordinary remedy that is available only in limited circumstances.

CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus is appropriate “only to correct

a clear abuse of discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law.” Id. To obtain mandamus relief, a relator must show both that the trial

court has clearly abused its discretion and that relator has no adequate appellate remedy. In re

Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004); Walker, 827 S.W.2d at 839.

Adequacy of Appellate Remedy

       We turn first to the question of whether appeal is an adequate remedy in this case. As a

general matter, in cases in which discovery is improperly denied, a party will not have an

adequate remedy by appeal: (1) when the appellate court would not be able to cure the trial

court’s discovery error; (2) where the party’s ability to present a viable claim or defense at trial is

vitiated or severely compromised by the trial court’s discovery error; and (3) where the trial

court disallows discovery and the missing discovery cannot be made a part of the appellate

record or the trial court, after proper request, refuses to make it part of the record. See In re

Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007) (orig. proceeding); In re Ford Motor Co.,

988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); In re Colonial Pipeline Co., 968 S.W.2d

938, 941 (Tex. 1998) (orig. proceeding). A denial of discovery goes to the heart of a party’s case

when the party is prevented from developing essential elements of its claim or defense. Able

Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding).

       In some cases a party might well be able to develop and present a viable claim or defense

even if denied a physical examination. However as discussed in greater detail below, here

                                                 –3–
Castro-Lopez’s complained-of injury cannot be assessed by simple resort to review of the

records of the treating physician in the case. The injuries Castro-Lopez alleges are neither

limited in their extent or impact. Castro-Lopez seeks more than mere recovery for past medical

expenses and other past damages. He pleaded that even after the surgery he underwent to repair

the injury, he will suffer future medical expenses, future physical impairment, future lost

earnings from continued loss of use of his wrist, and continued pain and suffering. Without

being granted an examination, Ten Hagen will be restricted in its opportunity to determine the

nature and extent of Castro-Lopez’s injury and to discover and develop facts that may contradict

the opinions of his expert witnesses. See Sherwood Lane Assocs. v. O’Neill, 782 S.W.2d 942,

945 (Tex. App.—Houston [1st Dist.] 1990, no writ); see also In re Transwestern Publishing, 96

S.W.3d 501, 508 (Tex. App.—Fort Worth 2002, orig. proceeding). Under the facts of this case,

the denial of Ten Hagen’s request to conduct a physical examination both severely compromises

its ability to develop a defense to Castro-Lopez’s claims for continued loss of use of his wrist

and for damages arising from possible future surgery on his wrist and will deny this Court the

ability to evaluate the effect of the trial court’s error on appeal. Thus, an appeal of the trial

court’s order after trial would not provide an adequate remedy for an abuse of discretion on the

part of the trial court in failing to grant the motion.

               TIMELINESS OF RELATOR’S MOTION FOR PHYSICAL EXAMINATION

        Before considering whether the trial court abused its discretion under rule 204.1 of the

Texas Rules of Civil Procedure, the Court must address Castro-Lopez’s contention in its

response to the petition for mandamus that Ten Hagen’s motion for physical examination of

Castro-Lopez was not timely filed. Castro-Lopez did not oppose Ten Hagen’s motion in the trial

court on the basis that it was made less than thirty days before the end of the applicable

discovery period. Rather, Castro-Lopez argued in his response in the trial court that Ten Hagen

                                                  –4–
had failed to establish good cause for the examination, that the proposed order did not meet the

requirements of rule 204.1, and that Dr. Sklar was not qualified to conduct the physical

examination. Although Castro-Lopez failed to raise the timeliness argument expressly in the

trial court, we nevertheless address the argument here because the subject was indirectly

discussed at the hearing in regard to the length of time Castro-Lopez had been a party and the

length of time Ten Hagen had passed on its opportunity to depose Castro-Lopez’s treating

physician.

       Rule 204.1 of the Texas Rules of Civil Procedure requires a party to move for a medical

examination, “no later than 30 days before the end of any applicable discovery period.” TEX. R.

CIV. P. 204.1. Castro-Lopez first argues that Ten Hagen’s request for a physical examination

was untimely because it was not made thirty days before the expert designation deadline under

the agreed level III scheduling order in effect in the case. The agreed scheduling order in this

case included not only a December 5, 2013 deadline to designate expert witnesses, but also a

December 20, 2013 deadline to complete “all discovery.” Requests for mental or physical

examinations are a form of discovery, TEX. R. CIV. P. 192.1(g), thus the more specifically

applicable December 20, 2013 deadline for completing “all discovery,” rather than the December

5, 2013 deadline for designating experts, was the “applicable discovery deadline” for purposes of

calculation of the thirty day time period for requesting a physical examination under rule 204.1.

       Resorting to this later deadline is not enough, however, to render Ten Hagen’s request

unquestionably timely under the literal language of the rules. Ten Hagen’s request for the

physical examination of Castro-Lopez was not made until the tenth day before the end of the

discovery period in the scheduling order. In the circumstances of this case, however, Ten

Hagen’s failure to request the examination “no later than thirty days” before December 20, 2013

does not control the outcome. While we review a trial court’s enforcement of its scheduling

                                               –5–
order for an abuse of discretion, Gunn v. Fuqua, 397 S.W.3d 358, 377 (Tex. App.—Dallas 2013,

no pet.), the unique facts and circumstances of this case dictate that the trial court properly

considered the request despite the fact that it was not timely under the rules of procedure.

       “The ultimate purpose of discovery is to seek the truth, so that disputes may be decided

by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline Co., 968

S.W.2d at 941 (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984)). Ten Hagen’s

request for a physical examination of Castro-Lopez became necessary because its former

testifying expert witness, Dr. Crane, died. Ten Hagen cannot be held at fault for the unfortunate

and untimely death of its expert witness. Just thirty-one days before the close of the discovery

period under the scheduling order, Ten Hagen was required by the court to obtain a new chapter

18 controverting affidavit. Virtually as soon as he was brought into the case, Ten Hagen’s

replacement expert witness, Dr. Sklar, concluded that the discovery that he needed to understand

the nature of Castro-Lopez’s injuries and his claims for past and future damages was an

independent medical exam. Ten Hagen filed its request for a physical examination of Castro-

Lopez almost immediately upon the trial court’s order striking its chapter 18 affidavit—and less

than two months after Dr. Crane’s death—before the end of the discovery period and before the

deadline the trial court had imposed for obtaining a new chapter 18 affidavit. Given that the trial

court recognized the necessity of permitting a replacement expert albeit close to the expiration of

the discovery period due to the untimely death of the previous expert, the replacement expert was

not limited by the trial court as to what he needed in order to form his opinions based on his

medical judgment. In these circumstances, Ten Hagen’s request cannot be said to be untimely.




                                                –6–
                    STANDARDS FOR GRANTING A PHYSICAL OR MENTAL EXAMINATION

Discretionary Nature of Rule 204.1

        Next we consider whether the trial court abused its discretion in denying Ten Hagen’s

request for a physical examination of Castro-Lopez. The scope of discovery largely rests within

the discretion of the trial court. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.

1985) (orig. proceeding). In considering whether a trial court has clearly abused its discretion

with regard to a discovery order, the reviewing court may not substitute its judgment for that of

the trial court and the relator must establish that the trial court could reasonably have reached

only one decision. Walker, 827 S.W.2d at 839–40. “Even if the reviewing court would have

decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be

arbitrary and unreasonable.” Id. at 840. We conclude that the trial court’s action was arbitrary

and unreasonable in this case.

        Rule 204.1(c) of the Texas Rules of Civil Procedure does not grant an automatic right to

obtain a physical or mental examination. As the Supreme Court has noted in construing the

substantially similar federal rule, 1 there must be greater showing of need to obtain a physical or

mental examination than to obtain other sorts of discovery. Schlagenhauf v. Holder, 379 U.S.

104, 118 (1964). The relevant portion of rule 204.1(c) provides, “The court may issue an order

for examination only for good cause shown and only . . . when the mental or physical condition .

. . of a party . . . is in controversy.” TEX. R. CIV. P. 204.1(c). While the use of the words “shall”

or “must” suggest that an action is mandatory, the ordinary meaning of “may” is permissive.

Inwood N. Homeowners’ Ass’n, Inc. v. Meier, 625 S.W.2d 742, 743 (Tex. Civ. App.—Houston


    1
       The Texas Supreme Court has concluded that because the Texas rule governing mental and physical
examinations was originally derived from rule 35 of the Federal Rules of Civil Procedure, federal courts’
construction of rule 35 is helpful to an analysis of the Texas rule. Coates v. Whittington, 758 S.W.2d 749, 751 (Tex.
1988).


                                                        –7–
[1st Dist.] 1981, no writ) (quoting Mitchell v. Hancock, 196 S.W. 694, 700 (Tex. Civ. App. 1917,

no writ)); see also In re Lambdin, No. 07-03-0328-CV, 2003 WL 21981975, at *4 (Tex. App.—

Amarillo Aug. 20, 2003, orig. proceeding) (“It is logical to construe the word ‘may’ as vesting

the trial court with some range of permissiveness or discretion.”). Thus, the ordinary meaning of

the language of rule 204.1 suggests that the trial court is vested with discretion in determining

whether to grant a physical or mental examination under rule 204.1.

       Where a trial court possesses discretion, the failure to appropriately exercise that

discretion can form the basis for mandamus relief. When a trial judge exercising an otherwise

discretionary authority has only one course to follow and one way to decide, the discretion

vested in the court is for all practical purposes destroyed. Jones v. Strayhorn, 321 S.W.2d 290,

295 (Tex. 1959); U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 671 (Tex. App.—Houston [1st

Dist.] 1993, no writ). In those circumstances, mandamus is appropriate when the trial court fails

to follow the one course permitted by the circumstances facing the trial court.

Requirements for Granting Examination under Rule 204.1

       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. TEX. R.

CIV. P. 204.1(c); Coates, 758 S.W.2d at 751. In the absence of an affirmative showing of both

prongs of the test, a trial court may not order an examination. Coates, 758 S.W.2d at 751.

       Courts considering orders under rule 204.1 must walk a fine line. Because an order

requiring a medical examination is an intrusive order, this Court has noted, “When a party’s

mental or physical condition is implicated, the court must balance the party’s right of privacy and

the movant’s right to a fair trial.” In re Buch, No. 05-98-01665-CV, 1998 WL 908843, at *3

(Tex. App.—Dallas Dec. 31, 1998, orig. proceeding) (mem. op., not designated for publication).

                                               –8–
Concern for the privacy rights of the parties compels courts considering motions under rule

204.1 to carefully observe the limitations prescribed by rule 204.1 to avoid opening the door to

compulsory examinations in cases in which the pleadings assert in conclusory fashion that a

physical or mental attribute was a factor in bringing about the incident underlying the lawsuit.

Id.; see, e.g., Schlagenhauf, 379 U.S. at 118–19 (concluding under Federal Rules of Civil

Procedure that order requiring examination of bus driver by specialists in internal medicine,

ophthalmology, neurology and psychiatry was not warranted by mere allegation that driver was

not mentally or physically capable of operating bus at time of accident and driver’s eyes and

vision were impaired); Williams v. Sanderson, 904 S.W.2d 212, 215 (Tex. App.—Beaumont

1995, no writ) (cautioning against routinely ordering eye examinations of defendant in vehicular

accident cases in which plaintiff alleges that defendant failed to keep proper lookout); Spear v.

Gayle, 857 S.W.2d 122, 125 (Tex. App.—Houston [1st Dist.] 1993, no writ) (rejecting

contention that mental examination was appropriate in case where plaintiff pleaded defendant

was negligent in failing to seek treatment for alleged mental disorder when defendant did not

seek to rely on any mental condition as part of his defense). On the other hand, consideration of

the interests of justice and the right of the parties to a fair trial requires that when a party asserts a

physical or mental condition as part of a claim or defense, a trial court must be careful not to

prevent the development of medical testimony that would allow the opposing party to fully

investigate the conditions the party asserting the existence of the condition has placed in issue.

See 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.); Sherwood Lane Assocs., 782 S.W.2d at

945. The “in controversy” and “good cause” requirements imposed by rule 204.1 are the tools

courts use in balancing the respective rights of the parties to privacy and to a fair trial.




                                                  –9–
“In Controversy” Requirement

        Rule 204.1 permits a party to request a physical or mental examination of another party

when the mental or physical condition of the party or a person in the custody, conservatorship or

legal control of the party is “in controversy.” TEX. R. CIV. P. 204.1(c)(1). Just as under federal

jurisprudence, these two requirements are not met “by mere conclusory allegations of the

pleadings—nor by mere relevance to the case.”                     Coates, 758 S.W.2d at 751; see also

Schlagenhauf, 379 U.S. at 117–18. In cases involving physical injury, there are situations,

however, where the pleadings alone are sufficient to place a party’s physical condition in

controversy. 2 For instance, the Supreme Court has suggested that a plaintiff in a negligence

action who claims physical injury as the result of a party’s negligence places his “physical injury

clearly in controversy and provides the defendant with good cause for an examination to

determine the existence and extent of such asserted injury” simply by seeking recovery for the

alleged physical injury. Schlagenhauf, 379 U.S. at 119 (dictum). This same precept applies

equally to a defendant who asserts his physical condition as a defense to a claim. Id. (dictum).

Thus, where a plaintiff alleged he was injured in a boating accident, by asserting a physical

injury and intending to use expert medical testimony to prove the injury, the plaintiff placed his

physical condition in controversy. Beamon v. O’Neill, 865 S.W.2d 583, 586 (Tex. App.—

Houston [14th Dist.] 1993, orig. proceeding); see May v. Lawrence, 751 S.W.2d 678, 679 (Tex.

App.—Tyler 1988, orig. proceeding [leave denied]) (because suit was for personal injuries

allegedly sustained in vehicle accident allegedly caused by employee of defendant, trial court did

not abuse discretion in ordering a physical examination of plaintiff).

    2
       Rule 204.1 is rarely litigated with regard to physical examinations, as opposed to mental examinations. In re
Caballero, 36 S.W.3d 143, 145 (Tex. App.—Corpus Christi 2000, orig. proceeding). We need not consider here
whether the “in controversy” requirement varies according to whether physical or mental examinations are at issue.
See In re Medina, No. 01-07-00747-CV, 2007 WL 4279171, at *2 (Tex. App.—Houston [1st Dist.] Dec. 6, 2007, no
pet.) (mem. op.).


                                                       –10–
       In this case, Castro-Lopez seeks damages not only for past damages but also for future

medical bills, pain, mental anguish, disfigurement, physical impairment, and lost earning

capacity.   The medical records included in the mandamus record clearly indicate that Dr.

Diliberti recommends that Castro-Lopez undergo a future surgery to restore lost movement and

to lessen continuing pain associated with the hardware that was implanted to repair Castro-

Lopez’s injured wrist. In these circumstances, the claims advanced by Castro-Lopez in the case

have placed his injuries in controversy as that term is used in rule 204.1.

“Good Cause” Requirement

       That a party’s pleadings place his physical condition in controversy is not alone enough

to compel a physical examination under rule 204.1. Rule 204.1 also requires that the trial court

find “good cause” for the examination. TEX. R. CIV. P. 204.1(c). As the Supreme Court noted in

construing federal rule 35, which includes a similar requirement, the “good-cause requirement is

not a mere formality, but is a plainly expressed limitation on the use of that Rule.”

Schlagenhauf, 379 U.S. at 117-18. We have explained the elements of good cause thus:

       First, the examination must be relevant to genuine issues in the case. The movant
       must show the examination will produce or is likely to lead to relevant evidence.
       Second, the movant must show there is a reasonable nexus between the condition
       in controversy and the examination sought. A mere conclusory pleading of
       mental condition is not sufficient. Third, the movant must show it is not possible
       to obtain the information through less intrusive means. The movant must show it
       cannot get a fair trial without the information thus necessitating the intrusion.

In re Buch, 1998 WL 908843, at *3.

       Information is relevant if it “relates to the claim or defense of the party seeking

discovery.” TEX. R. CIV. P. 192.3(a); In re Click, No. 13-13-00682-CV, 2014 WL 69887, at *4

(Tex. App.—Corpus Christi Jan. 6, 2014, orig. proceeding) (where expert testimony established

that hair testing more than ninety days after exposure is not scientifically reliable to determine

whether a person used a drug at a particular time, or was intoxicated or impaired from a drug at a


                                               –11–
particular point in time, evidence before the trial court did not establish that the requested

examination was relevant to issues that are genuinely in controversy); see also In re Dana Corp.,

138 S.W.3d 298, 304 (Tex. 2004) (orig. proceeding) (reciting relevance standard). Castro-Lopez

has not disputed the relevance of the examination to genuine issues in the case and there can be

no doubt that the examination sought here is relevant to Castro-Lopez’s claimed injuries, which

are central to his case and his right to seek recovery of the damages he claims. Cf. In re Buch,

1998 WL 908843, at *5 (defendant’s alleged errors in judgment with regard to his personal life

were not relevant to claim that doctor’s conduct fell below standard of care and mental

examination was not appropriate); In re Caballero, 36 S.W.3d at 145 (in suit based on allegedly

false allegations of shoplifting, requested gynecological examination after plaintiff had

undergone hysterectomy was not relevant where party requesting examination was unable to

articulate why an examination would shed any light on bleeding condition that existed prior to

hysterectomy).

       A court is not required or even permitted to order an examination simply because it finds

the examination will produce relevant evidence. Schlagenhauf, 379 U.S. at 117–18. The “good

cause” requirement of rule 204.1 would be meaningless if mere relevance alone sufficed to

establish good cause. See id. To satisfy the second element of good cause, a party seeking a

physical or mental examination must demonstrate that there is a reasonable nexus, in other words

a reasonable connection, between the condition in controversy and the examination sought.

Coates, 758 S.W.2d at 752–53; see generally In re Click, 2014 WL 69887, at *4 (where test

requested was not shown to be reliable to establish facts that would be relevant to case,

reasonable nexus between the condition in controversy and the examination sought did not

exist); In re Transwestern, 96 S.W.3d at 507 (reasonable nexus existed when examination was

intended to explore allegations of mental anguish as they related to the event giving rise to suit).

                                                –12–
       Castro-Lopez argues that Ten Hagen failed to meet this burden because it has not

substantively described what the actual physical examination would entail or what it would be

expected to reveal. Castro-Lopez provides no authority suggesting that such a substantive

description of the precise nature of the examination or expected outcome of the examination is

required under rule 204.1. Moreover, Dr. Diliberti’s examination notes should have allowed the

trial court to understand the nature of the examination requested and how it was connected to the

alleged injury.

       Dr. Diliberti’s April 18, 2013 examination notes observed that Castro-Lopez was

experiencing pain from the incision over his left distal ulna, the site of the post-accident surgery.

Dr. Diliberti further commented that the hardware from the surgery was palpable and painful and

that wrist motion and pronation caused Castro-Lopez pain in the area of the hardware implanted

during the surgery. He also noted that significant stress could not be applied to the wrist joint.

These are all matters that Castro-Lopez claims are a direct consequence of his injury and are the

basis for his claims for damages and losses, including claims for the physical pain, loss of

earning capacity, disfigurement, and physical impairment that Castro-Lopez claims with regard

both to the past and the future. Accordingly, Dr. Diliberti’s notes and Castro-Lopez’s pleadings

together provide the necessary nexus between the claimed injury and the requested examination

and satisfy the second element of the good cause test.

       The final element of good cause requires that it not be possible to obtain the information

sought by less intrusive means and that absent the examination the relator will not be able to

obtain a fair trial. In re Buch, 1998 WL 908843, at *3. Texas courts have identified a number of

avenues that could, in appropriate cases, potentially provide less intrusive means for obtaining

medical information without an examination. For instance, less intrusive measures might include

deposing the opposing party’s doctors and attempting to obtain copies of medical records, In re

                                               –13–
Caballero, 36 S.W.3d at 145, or relying on existing expert witness reports already filed in the

case, In re Bell Hot Shot Co., No. 14-13-00877-CV, 2014 WL 260116, at *2 (Tex. App.—

Houston [14th Dist.] Jan. 9, 2014, orig. proceeding) (mem. op.).          The adequacy of these

measures must still be evaluated in light of the fair trial standard, however. 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. Exxon Corp. v. Starr, 790 S.W.2d 863, 887

(Tex. App.—Tyler 1990, orig. proceeding); Sherwood Lane Assocs., 782 S.W.2d at 945. 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. In addition,

where the information already available through less intrusive means is inadequate, a party may

obtain a physical examination for which good cause is otherwise shown. Williams, 904 S.W.2d

at 216 (where eye injury occurred two years prior to the truck-pedestrian accident and the latest

eye examination occurred a year prior to the accident, records of those matters would not be

adequate to determine state of vision at the time of the accident and no less intrusive method than

an eye examination was available to determine the adequacy of eyesight).

       In the circumstances of this case, it would be unfair to deprive Ten Hagen of the chance

to obtain an independent assessment to present to the jury. Dr. Diliberti’s notes are copied to

counsel for Castro-Lopez suggesting that the examination he conducted and the notes he

prepared were drafted with attention to litigation.       Additionally, it is apparent from Dr.

Diliberti’s notes that his examination did not reveal the complete extent of Castro-Lopez’s

continuing need for treatment. Specifically, Dr. Diliberti noted:

       Jose . . . would benefit from evaluation of the ulnar sensory nerve and excision
       and treatment of the probable neuroma or other injury to the ulnar sensory nerve.
                                               –14–
       If there is a significant neuroma, the end of the nerve will either need to be
       repaired or implanted into deep tissue. Additionally, electrodiagnostic studies
       would be beneficial prior to surgery.

Finally, it is clear that Ten Hagen’s testifying expert did not feel confident in relying on Dr.

Diliberti’s examination. Dr. Sklar noted that Dr. Diliberti’s April 18, 2013 examination provided

the first report in the file of any ulnar sensory loss despite the fact that Castro-Lopez had been

previously examined. He also concluded that the diagnoses made by Dr. Diliberti did not “fit

together” and were not “all reasonably considered to be sequella of the motor vehicle collision.”

       The facts of this case are unique. Here Ten Hagen suffered the untimely death of its sole

expert witness shortly before the close of the discovery period after the treating physician

submitted a report that suggested even he could not confidently assess the full extent of Castro-

Lopez’s future need for additional treatment. The future damages Castro-Lopez claims as a

result of the need for that surgery cannot be assessed by simple resort to review of the medical

records in the case, examination of the injured appendage during a deposition of Castro-Lopez,

or further development of Dr. Diliberti’s opinion during a deposition of Dr. Diliberti. Ten

Hagen’s request for a physical examination of Castro-Lopez was made within the discovery

period agreed to by the parties and would not have unnecessarily prolonged the discovery period

or necessitated a continuation of the original trial date had the request been granted without

delay. If Ten Hagen is not allowed to obtain an independent medical examination of Castro-

Lopez, it will have no opportunity to explore and develop evidence that supports theories that

contradict the theories espoused by Dr. Diliberti. In short, on this record, the information that

Ten Hagen seeks is necessary for a fair trial and cannot be obtained by less intrusive means.

Qualifications of Examining Physician

       Castro-Lopez also objected to Ten Hagen’s request for a physical examination on the

ground that Dr. Sklar is not qualified to perform an evaluation of the injuries Castro-Lopez


                                              –15–
claims. Specifically, Castro-Lopez contends that because Dr. Sklar is a physiatrist, not an

orthopedic surgeon or a hand specialist or nerve specialist, he does not possess the necessary

qualifications to assess orthopedic issues.

       A trial court may not deny a motion for an examination under rule 204.1 based on lack of

qualification of the proposed examining doctor. In its reply in the trial court, Ten Hagen

conceded that when moving for a physical examination, the movant has no absolute right to

appointment of a physician of its own choosing to conduct the examination. See Emp’rs Mut.

Cas. Co. v. Street, 702 S.W.2d 779, 781, reh’g denied, 707 S.W.2d 277, 279 (Tex. App.—Fort

Worth 1986, orig. proceeding) (interpreting former rule 167a). Ten Hagen further conceded it is

within the trial court’s discretion to choose a physician it finds to be independent and neutral to

conduct the examination rather than the physician requested by the movant. See Street, 702

S.W.2d at 780. The trial court is not required, however, to choose an independent physician; it

may choose any physician it finds appropriate, including the one requested by the movant. May,

751 S.W.2d at 679.      Thus, if a trial court finds the proposed examining physician to be

unqualified, the remedy is to appoint a different physician of the trial court’s choice rather than

to deny the examination altogether.

                                              CONCLUSION

       We CONDITIONALLY GRANT relator’s petition for writ of mandamus. A writ will

issue only in the event the trial court fails to vacate its March 24, 2014 “Order Denying

Defendant Ten Hagen Excavating, Inc.’s Motion for Plaintiff Jose Castro-Lopez to Be Examined




                                              –16–
by Defendant’s Medical Expert” and order Castro-Lopez to submit to a non-invasive physical

examination of his left wrist, hand and arm by a physician the trial court finds to be qualified.


                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE


140539F.P05




                                               –17–
