IN RE: ROLYN COMPANIES (2025)

OPINION

Petition for Writ of Mandamus Conditionally Granted and Opinion filed July 3, 2025.

The plaintiff below designated a clinical neuropsychologist to testify about serious bodily and brain injuries she claims to have suffered at work. The trial court nonetheless denied the defendant's motion to compel an examination of the plaintiff by its own neuropsychologist, as the rules allow. We conclude the defendant is entitled to mandamus relief and conditionally grant the defendant's amended petition to allow the exam.

Background

Claudia Dominguez Reyna, real party in interest and the plaintiff below, was working on a construction project when a light fixture or air conditioner fell on her head, resulting in serious bodily injuries and “a traumatic brain injury.” She sued relator Rolyn Companies, Inc. under several negligence theories and sought damages for her past and future pain and suffering, mental anguish, lost earning capacity, physical impairment, disfigurement, and medical expenses.

The plaintiff designated a clinical neuropsychologist as an expert who might testify regarding her “major neurocognitive disorder due to traumatic brain injury, major depressive disorder with anxious distress, and posttraumatic stress disorder.” She also provided a report detailing the expert's findings from the neuropsychological evaluation he conducted on her in March 2021. The plaintiff then nonsuited her lawsuit and refiled a month later. More than a year later, the plaintiff designated three neuropsychological experts, including the one who had been previously designated, to testify about the same topics: the plaintiff's “major neurocognitive disorder due to traumatic brain injury, major depressive disorder with anxious distress, and posttraumatic stress disorder.”

Three days after the plaintiff designated her additional experts, Rolyn filed a motion to compel a neuropsychological exam of the plaintiff by its own neuropsychological expert. According to Rolyn, Texas Rule of Civil Procedure 204.1 required the trial court to compel the plaintiff to undergo an independent exam by its own expert. Without an independent exam, said Rolyn, the plaintiff's experts would have an unfair advantage at trial.

The trial court denied Rolyn's motion to compel because the plaintiff had previously undergone a neuropsychological exam. It granted Rolyn some relief, however, ordering the raw data from the plaintiff's previous exams be given to Rolyn. The trial court denied Rolyn's motion for reconsideration, and Rolyn filed this mandamus petition.

Standard of Review

To obtain mandamus relief, Rolyn must show both that (1) the trial court clearly abused its discretion; and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts; thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840. Additionally, an appeal is generally an inadequate remedy when a party's ability to present a viable claim or defense is vitiated or severely compromised. Id. at 843.

Analysis

A. Waiver

As a preliminary matter, the plaintiff contends that Rolyn's mandamus petition is barred because Rolyn failed to pursue an exam diligently after the plaintiff first designated a clinical neuropsychologist as a testifying expert in the nonsuited case. According to the plaintiff, although the parties' Rule 11 agreement states that the discovery conducted in the nonsuited case “will be considered as though it were conducted in the new case,” Rolyn waited over two years after the plaintiff designated her neuropsychologist in the nonsuited case to file the motion to compel in the instant case. The plaintiff further argues that Rolyn delayed for another six months before setting the motion to compel for a hearing.

Mandamus is largely controlled by equitable principles, including the principle that equity aids the diligent and not those who slumber on their rights. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). A mandamus action is therefore barred when a party shows not only the opposing party's unreasonable delay in asserting its rights but also a good faith and detrimental change in position because of the delay. Id.

The Supreme Court of Texas has held that waiver may occur when a relator “unduly or unreasonably delays filing a petition for mandamus relief.” In re Am. Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (per curiam) (emphasis added). We therefore must focus our analysis of “unreasonable delay” on the mandamus petition's filing, not any delay that occurred before the trial court's order. In re Episcopal School of Dallas, Inc., 556 S.W.3d 347, 360 (Tex. App.—Dallas 2017, orig. proceeding).

Here, the trial court denied Rolyn's motion for reconsideration on March 12, and Rolyn filed its mandamus petition less than a month later, on April 8. Thus, the record does not support rejecting Rolyn's mandamus petition based on an “unreasonable delay.” See In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam) (measuring time between denial of reconsideration motion and mandamus filing and concluding delay of two months not per se unreasonable or fatal to mandamus relief). Nor has the plaintiff demonstrated, or even claimed, a detrimental change in position because of the alleged delay. See id. Accordingly, Rolyn did not waive its right to mandamus relief.

B. Clear Abuse of Discretion

We next consider whether the trial court clearly abused its discretion in denying a neuropsychological exam under Rule 204.1. See Tex. R. Civ. P. 204.1. There is no automatic right to an exam under Rule 204.1, even when a party shows good cause. See In re Auburn Creek Ltd. P'ship, 655 S.W.3d 837, 841 (Tex. 2022) (orig. proceeding) (per curiam); In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig. proceeding). Rather, a party must also show that one of two conditions is met: (1) “the mental or physical condition ․ of a party ․ is in controversy”; or (2) “the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist's records for possible use at trial.” See id. 204.1(c). These requirements cannot be satisfied “by mere conclusory allegations of the pleadings—nor by mere relevance to the case.” In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 303 (Tex. 2016) (orig. proceeding) (per curiam) (quoting Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988) (orig. proceeding)).

The record demonstrates both that the plaintiff's physical and mental conditions are “in controversy”—she seeks damages for bodily injuries and a severe traumatic brain injury—and that she has designated at least one psychologist as a testifying expert. See Tex. R. Civ. P. 204.1(c).

Good cause was also shown. The purpose of 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. H.E.B. Grocery, 492 S.W.3d at 303. The movant must (1) show that the requested exam is relevant to issues in controversy and will produce or likely lead to relevant evidence, (2) establish a reasonable nexus between the requested exam and the condition in controversy, and (3) demonstrate that the desired information cannot be obtained by less intrusive means. Id. Rolyn has made these showings.

First, the relevance prong is met “[w]hen the existence, extent, and cause of an injury are in controversy” and the exam is “intended to glean information regarding those issues.” Auburn Creek, 655 S.W.3d at 841–42. It is undisputed here that the plaintiff's mental and physical conditions are in controversy.

Second, as to the reasonable nexus between the requested exam and the condition in controversy, Rolyn “must provide more than conclusory allegations and show more than mere relevance to the case.” Id. at 842. Rather, it must provide evidence that the requested exam “directly relates to the condition in controversy.” Id. (quoting H.E.B. Grocery, 492 S.W.3d at 303). Rolyn's expert not only stated that an exam was necessary for him to ascertain the existence, nature, and extent of the plaintiff's mental injuries, but also that the exam was necessary because the plaintiff sustained her brain injury in 2017 and the neuropsychological testing she had received was outdated. He further stated that the plaintiff's prior exams and reports are unreliable because they “do not follow neuropsychological guidelines, do not contain a differential diagnosis, do not consider alternative plausible explanations, do not use standard procedures in test interpretation, and do not consider usual concerns about testing with inappropriate norms.” For example, Rolyn's expert noted that the plaintiff's expert examined the plaintiff in 2021, but “failed to account for her age, educational attainment, cultural background, and primary language.” Therefore, Rolyn established a reasonable nexus between the requested exam and the condition in controversy.

Finally, Rolyn established that the requested information cannot be obtained by less intrusive means. See H.E.B. Grocery, 492 S.W.3d at 303–04. The plaintiff plans to present testimony from three neuropsychological experts, at least two of whom conducted some form of testing on the plaintiff. But Rolyn's expert did not have the same opportunity, which he states limits his capacity to determine the existence, nature, and extent of the plaintiff's mental injuries. If Rolyn's expert were limited to a review of the records, the plaintiff would likely tell the jury that his opinions were less valid because he hadn't even examined her, leaving him at a distinct disadvantage. See id. at 304.

Even more, Rolyn provided evidence that “the exam is likely to reveal information necessary to assess the complained-of injuries beyond what could be obtained from reviewing any medical records available to the expert.” Auburn Creek, 655 S.W.3d at 842. Rolyn's expert maintained that the severity of traumatic brain injury can be determined “based on a review of records,” but acknowledged that “[n]europsychological testing is the preferred way.” Rolyn's expert stated that another exam is necessary because the plaintiff's prior exams were outdated and unreliable due to numerous methodological problems. Therefore, the results of the requested exam will “go to the heart of [Rolyn's] defense strategy.” H.E.B. Grocery, 492 S.W.3d at 303–04.

In sum, Rolyn has established all the requirements of Rule 204.1 to compel the independent exam of the plaintiff, and the trial court reasonably could have only reached one conclusion—granting Rolyn's motion to compel. See Auburn Creek, 655 S.W.3d at 841 (stating that “the trial court does not have unfettered discretion to deny requests for exams,” and that “when the trial court reasonably could have reached only one conclusion, the discretion vested in the court is for all practical purposes destroyed”). Therefore, the trial court clearly abused its discretion by denying Rolyn's motion to compel.

C. No Adequate Remedy by Appeal

Rolyn must also establish that it has no adequate remedy by appeal, which we assess by balancing the benefits of mandamus review against the detriments, including whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); Prudential, 148 S.W.3d at 136. This factor depends heavily on the circumstances. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam).

Rolyn has established that it will be unable to effectively challenge the plaintiff's experts or develop a complete analysis of the plaintiff's injuries without an independent exam. Without that evidence, an appellate court would be unable to evaluate the trial court's error. In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 804 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding). Rolyn should not be forced to trial with one hand tied behind its back. See H.E.B. Grocery, 492 S.W.3d at 304–05 (holding that in a trial where the issues will depend significantly on competing expert testimony, denying the defendant's expert the same opportunity to examine the subject as the plaintiff's expert deprives the defendant of an adequate appellate remedy). It therefore lacks an adequate remedy by appeal.

Conclusion

We conditionally grant Rolyn's amended mandamus petition to the extent it asks this court to compel the trial court to allow an exam under Rule 204.1.¹ We are confident the trial court will vacate its contrary orders in accordance with this opinion. The writ will issue only if the trial court fails to do so. All other relief sought is denied.²

FOOTNOTES

1.   Rolyn filed a motion to strike the plaintiff's amended response. Because we conditionally grant Rolyn's amended petition, we dismiss the motion to strike as moot.

2.   We leave to the trial court to decide, and express no opinion on, “the time, place, manner, conditions, and scope of the examination.” Tex. R. Civ. P. 204.1(d).

Katy Boatman Justice