In re Savoy

• Decision Date: 30 July 2020
• Docket Number: NO. 03-19-00361-CV,03-19-00361-CV
• Parties: IN RE Leon Paul SAVOY; Texas Curb Cut, LP ; and Texas Cutting & Coring, LP
• Court: Texas Court of Appeals

607 S.W.3d 120

IN RE Leon Paul SAVOY; Texas Curb Cut, LP ; and Texas Cutting & Coring, LP

NO. 03-19-00361-CV

Court of Appeals of Texas, Austin.

Filed: July 30, 2020

Rehearing Denied September 2, 2020

David E. Chamberlain, Rudolph Metayer, Chamberlain McHaney, 301 Congress Avenue, 21st Floor, Austin, TX 78701, for Relator.

Robert House, Law Office of Robert House, PLLC, 6500 River Place Blvd, Bldg 7, Ste 250, Austin, TX 78730, for Real party in interest.

Before Chief Justice Rose and Justice Kelly and Justice Smith

OPINION

Edward Smith, Justice

In this original proceeding, relators Leon Paul Savoy, Texas Curb Cut, and Texas Cutting & Coring seek mandamus relief from two discovery orders. First, they ask us to compel the district court to grant their motion to compel a medical examination of the plaintiff. See Tex. R. Civ. P. 204.1 (prescribing procedure for obtaining court-ordered physical or mental examination). They also seek relief from an order striking their expert affidavits challenging the reasonableness of real party in interest John Patrick Hartley's medical expenses. See Tex. Civ. Prac. & Rem. Code § 18.001 ("Affidavit Concerning Cost and Necessity of Services"). We will conditionally grant relief in part and deny it in part.

BACKGROUND¹

This original proceeding arises out of a personal-injury lawsuit brought by Hartley. Savoy, a commercial truck driver for Texas Cutting and Coring, was driving southbound on Interstate 35 when he allegedly failed to apply his brakes and collided with Hartley's vehicle, which was directly ahead, propelling Hartley's vehicle into the truck ahead of him. Texas Curb Cut owned both Savoy's truck and the one in front of Hartley. Hartley sued Savoy and both companies (collectively, relators) for personal injuries. He sought damages for medical care, pain and suffering, and physical impairment sustained in the past and "which will in all reasonable probability be incurred in the future."

During the discovery period, Hartley provided relators with itemized billing statements from eight medical providers that treated him following the accident. He accompanied each set of records with an affidavit from the provider's custodian of records attesting that the charges were reasonable and necessary. See id. § 18.001(b) (providing for proof of reasonable and necessary expenses by affidavit).

In response, relators served two counteraffidavits challenging the reasonableness of the charges reflected in five of the affidavits. Relators subsequently designated their affiants, Marc Chapman and Dr. Brian Sullivan, as testifying experts. Relators also designated Dr. Sullivan, an expert in orthopedic medicine, to testify on Hartley's injuries.

Hartley moved to strike the counteraffidavits on various grounds. On the same day, relators moved to compel Hartley to submit to a medical examination of his "cervical and lumbar spine injuries

" by Dr. Sullivan. See Tex. R. Civ. P. 204.1. After considering both motions at a hearing, the district court denied the motion to compel and granted the motion to strike by separate orders. Relators then sought mandamus relief in this Court.²

STANDARD OF REVIEW

The writ of mandamus is an "extraordinary remedy" that will issue only if "the relator shows that the trial court abused its discretion and that no adequate appellate remedy exists." In re North Cypress Med. Ctr. Operating Co. , 559 S.W.3d 128, 130 (Tex. 2018) (orig. proceeding). A trial court abuses its discretion when it rules "without regard for guiding legal principles or supporting evidence" or when it "clearly fails to analyze or apply the law correctly." In re Nationwide Ins. Co. of Am. , 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). Whether an appeal is adequate to remedy a clear abuse of discretion depends on whether the benefits to mandamus review outweigh the detriments. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

INDEPENDENT MEDICAL EXAMINATION

We first consider whether the district court abused its discretion by denying relators' motion to compel an independent medical examination. See Tex. R. Civ. P. 204.1 (setting out procedure for obtaining order compelling examination).

Hartley first argues that relators' motion was untimely. A party may move for a medical examination of another "[n]o later than 30 days before the end of any applicable discovery period." Id. R. 204.1(a). Relators filed their motion to compel on April 4, 2019. The parties had previously agreed to, and the district court signed, a scheduling order that set May 3, 2019 as the end of the discovery period. See id. R. 190.4(a), (b) (authorizing court-ordered discovery control plans "tailored to the circumstances of the specific suit" that "may change any limitation on the time for or amount of discovery set forth in these rules"). Hartley argues the motion was untimely because April 4 is less than thirty-one days before May 3. But the agreed scheduling order set April 4 as the "deadline to move for [an] independent medical examination of [the] plaintiff." Applying this more specific deadline, we conclude that relators timely filed their motion to compel. See In re Ten Hagen Excavating, Inc. , 435 S.W.3d 859, 865 (Tex. App.—Dallas 2014, orig. proceeding) (applying "more specifically applicable deadline" in agreed scheduling order to determine timeliness of motion to compel).

Next, we must determine whether an affidavit was properly before the district court. To establish their entitlement to the examination, relators rely heavily on an affidavit from Dr. Sullivan describing his intended examination.³ Hartley contends that we may not consider that affidavit because it was not properly before the district court. See In re M-I L.L.C. , 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding) ("In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made."). More specifically, he contends that the affidavit was not submitted until after the hearing on the motion. But the reporter's record reflects the district court specifically allowed the late submission. During the hearing, the presiding judge expressed surprised that relators had not submitted an expert affidavit with their motion to compel. Relators' counsel replied that he thought he had attached Dr. Sullivan's affidavit to the motion and asked for time to locate and file it. The presiding judge agreed to consider the affidavit if it was filed the same day. Hartley does not dispute that relators' counsel filed the affidavit the same day.⁴ On this record, we conclude the affidavit was properly before the district court.

Having rejected Hartley's challenge to the timeliness of the motion and to Dr. Sullivan's affidavit, we now turn to the merits of relators' motion. A court may grant a Rule 204.1 motion if the movant shows both "good cause" for the examination and that the mental or physical condition to be examined "is in controversy." Tex. R. Civ. P. 204.1(c). Hartley challenges only the good cause requirement. The purpose behind requiring the movant to show good cause for an examination "is to balance the movant's right to a fair trial and the other party's right to privacy." In re H.E.B. Grocery Co. , 492 S.W.3d 300, 303 (Tex. 2016) (orig. proceeding) (per curiam). To that end, establishing good cause requires the movant to (1) "show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence," (2) "establish a reasonable nexus between the requested examination and the condition in controversy," and (3) "demonstrate that the desired information cannot be obtained by less intrusive means." Id. These requirements "cannot be satisfied ‘by mere conclusory allegations of the pleadings–nor by mere relevance to the case.’ " Id. (quoting Coates v. Whittington , 758 S.W.2d 749, 751 (Tex. 1988) (per curiam)).

"Evidence is relevant if ‘(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.’ " In re National Lloyds Ins. , 532 S.W.3d 794, 808 (Tex. 2017) (orig. proceeding) (quoting Tex. R. Evid. 401 ). The issues in controversy here are the nature, extent, and cause of Hartley's "cervical and lumbar spine injuries

." Relators seek an examination of those injuries to allow Dr. Sullivan to evaluate them and opine on Hartley's claims for past and future medical expenses and pain and suffering. We conclude that relators satisfied the relevance requirement. See

In re H.E.B. , 492 S.W.3d at 303 (concluding that proposed examination of personal-injury plaintiff satisfied relevance requirement because "the issues in controversy are the existence and extent of [plaintiff's] physical injuries—most notably to his neck and shoulder—as well as the cause of those injuries").

The reasonable-nexus requirement demands more than "mere relevance to the case." See id. (quoting Coates , 758 S.W.2d at 751 ); see also Coates , 758 S.W.2d at 752–53 (noting movant must show "some connection" between examination and condition in controversy). Dr. Sullivan described the examination in his affidavit: he intended to ask Hartley to provide a "history of the present problems" and to evaluate Hartley's "motor and sensory status, gait, balance, coordination, reflexes, and ranges of motion." The examination has a reasonable nexus to the issues in controversy—the nature, extent, and cause of Hartley's injuries. See In re H.E.B. , 492 S.W.3d at 303 (holding proposed physical examination of plaintiff's injuries had reasonable nexus to condition in controversy, which was "[the plaintiff's] physical health—his past, present, and future injuries related to the fall and other causes").

The final component of good cause requires the relator to show that the desired information cannot be obtained through less intrusive means...