in Re Advanced Powder Solutions, Inc.
01-15-00758-CV
| Tex. App. | Sep 3, 2015Background
- Plaintiff Tremaine Hewitt sued Advanced Powder Solutions, Inc. after sustaining severe burns and other injuries in an August 26, 2013 industrial blast, seeking past/future medical costs, impairment, disfigurement, pain and suffering, and lost earning capacity.
- Plaintiff designated a retained medical expert (Dr. Angel Roman) who disclosed that his opinions are based on his own physical examination of Hewitt; Plaintiff also designated an economist for lost earning capacity.
- Defendant Relator moved under Texas Rule of Civil Procedure 204.1 to compel: (1) an independent physical exam by Defendant’s plastic surgeon and (2) a functional capacity evaluation/impairment rating by ErgoRehab.
- Plaintiff opposed, arguing less intrusive means (e.g., depositions of treating physicians, records) were available and the motion should be denied.
- The trial court denied Defendant’s Rule 204.1 motion on July 17, 2015; Defendant filed this petition for writ of mandamus arguing the denial was an abuse of discretion and that appeal is not an adequate remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion in denying Rule 204.1 physical exam | Hewitt: Defendant failed to pursue less intrusive discovery; exam unnecessary | Advanced Powder: Good cause exists — exam is relevant, has nexus to claimed impairment/disfigurement, and cannot be equitably substituted by records/depositions because Plaintiff’s expert examined Hewitt | Trial court denied the motion to compel (relator seeks mandamus review) |
| Whether denial is reviewable by mandamus / whether appeal is adequate | Hewitt: Ordinary appeal suffices | Advanced Powder: Appeal is inadequate because denial deprives Defendant of equal access to first-hand examination, risks irreparable prejudice, and would make any subsequent trial an "empty exercise" | Relator argues mandamus is appropriate; petition requests appellate intervention |
Key Cases Cited
- Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988) (sets "good cause" test for compelling physical examination: relevance, nexus, and lack of less-intrusive means)
- In re Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App.—Dallas 2014) (denial of Rule 204.1 exam may be mandamus-worthy where it prevents defendant from developing evidence to contradict plaintiff's experts)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (framework for assessing adequacy of appellate remedies and prudential mandamus factors)
- Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590 (Tex. 1996) (mandamus appropriate when evidentiary rulings so prejudice defense that due process is threatened)
- In re Transwestern Publishing Co., L.L.C., 96 S.W.3d 501 (Tex. App.—Houston [14th Dist.] 2002) (granting mandamus where denial prevented relator from obtaining needed pretrial exam to defend against plaintiff’s expert)
- Loffland Bros. Co. v. Downey, 822 S.W.2d 249 (Tex. App.—Houston [1st Dist.] 1992) (recognizing mandamus when trial error prevents fair trial and renders proceedings an "empty exercise")