In RE THE SHERWIN-WILLIAMS COMPANY AND ROBERTO HERNANDEZ v. the State of Texas

Supreme Court of Texas
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No. 22-0559
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In re The Sherwin-Williams Company and Roberto Hernandez,
Relators

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On Petition for Writ of Mandamus
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PER CURIAM

This mandamus proceeding concerns a motion to compel a
medical examination under Texas Rule of Civil Procedure 204.1.
Because the timely motion included evidence showing good cause for the
examination, the trial court clearly abused its discretion in denying the
motion. In addition, the record shows that denial of the examination
will severely compromise the moving parties’ ability to present a viable
defense. Accordingly, we conditionally grant relief.
Marcos Acosta alleges that he was injured in a car accident
caused by the negligence of Roberto Hernandez and that Hernandez was
acting within the scope of his employment for The Sherwin-Williams
Company at the time. Acosta sued Hernandez and Sherwin-Williams,
seeking damages for medical expenses, physical pain, past and future
lost earnings, and mental anguish. Acosta has designated treating
physicians to opine on his medical treatment and inability to return to
work. Specifically, Drs. Frank Kuwamura and Anthony Owusu have
personally examined Acosta, and each performed surgery on Acosta’s
spine following the injury. Acosta also designated Ross Pavlik and
economist John Swiger, Ph.D., to opine on Acosta’s medical
improvement and reduction in wage-earning capacity. Neither Pavlik
nor Swiger conducted a physical exam of Acosta; both relied on the
medical notes of Drs. Kuwamura and Owusu.
Sherwin-Williams and Hernandez (collectively,
Sherwin-Williams) designated Dr. Anton Jorgensen—a spine surgeon—
as their expert on Acosta’s alleged injuries, and they moved to compel a
medical examination of Acosta by Dr. Jorgensen. After a hearing on the
motion, Sherwin-Williams filed a reply brief with an affidavit from Dr.
Jorgensen. In the affidavit, Dr. Jorgensen stated that he would conduct
an “orthopaedic spine examination that assesses the range of motion,
muscle strength, tenderness to palpation, reflexes, and nerve
impingement.” He would perform similar tests to those completed by
Acosta’s physicians. Dr. Jorgensen stated that “orthopaedic spine
surgeons are taught, where possible, to make their own observations”
because the “tests are subjective to both the provider and the patient”
and first-hand observation helps “determine the validity of the result.”
“After considering the motion, the responses, the arguments of
counsel, and the pleadings on file,” the trial court denied the motion to
compel the exam. The court of appeals denied mandamus relief in a
brief, nonsubstantive opinion. ___ S.W.3d ___, 2022 WL 3047146 (Tex.
App.—San Antonio Aug. 3, 2022).

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Sherwin-Williams now seeks mandamus relief from this Court.
Because the trial court clearly abused its discretion by concluding that
Sherwin-Williams had not shown good cause for the exam, we
conditionally grant relief.
Mandamus is an extraordinary remedy that is granted only when
the relator shows that the trial court clearly abused its discretion and
that no adequate appellate remedy exists. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135-36 (Tex. 2004). When a trial court fails “to
analyze or apply the law correctly,” it has clearly abused its discretion.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The trial court has
no discretion in determining the law or applying the law to the facts. Id.
Here, the trial court failed to apply Rule 204.1 correctly to the facts.
A trial court may compel an examination “only for good cause
shown” and “when the mental or physical condition . . . of a party . . . is
in controversy.” TEX. R. CIV. P. 204.1(c)(1). The rule’s “good cause
requirement . . . balance[s] 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). To establish good cause, the movant must show that
(1) the examination is relevant to the issue in controversy and is likely
to lead to relevant evidence, (2) there is a “reasonable nexus between the
examination and the condition in controversy,” and (3) the desired
information “cannot be obtained by less intrusive means.” Id.
The parties dispute only the third requirement: whether
Sherwin-Williams showed that the exam would be the least intrusive
means of discovering the relevant information. Acosta first contends
that Dr. Jorgensen’s affidavit should not be considered in deciding

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whether the requirement was met because the trial court only left open
the opportunity to submit “supplemental briefing” or “case-law” after
the hearing. At the hearing, Sherwin-Williams’s counsel did ask to
submit “supplemental briefing.” The trial court allowed additional
briefing and permitted Acosta to respond. As noted above,
Sherwin-Williams’s counsel filed a reply brief that attached Dr.
Jorgensen’s affidavit. The trial court denied the motion after
“considering the motion, the responses, the arguments of counsel, and
the pleadings on file,” so we presume the trial court made its decision
after considering the affidavit. Because the trial court considered the
affidavit, we do as well.
In H.E.B., we identified several considerations that are relevant
in determining whether the third requirement has been met. Id. at
303-04. The plaintiff there intended to prove causation and damages
through expert testimony from doctors who had examined the plaintiff.
Id. at 303. In addition, the results of the defendant’s requested exam
went to the heart of its defense strategy. Id. at 304. The defendant’s
expert explained in an affidavit why a treating doctor was in a better
position than a records-review doctor to examine and opine on the
particular injuries alleged. Id. at 303. And requiring the defendant’s
expert to testify at trial without the exam would place him at a distinct
disadvantage because it would allow the plaintiff to call into question
his credibility in front of the jury. Id. at 304; see also In re Auburn Creek
L.P., 655 S.W.3d 837, 842-43 (Tex. 2022).1

1 Acosta attempts to distinguish H.E.B. by asserting that the plaintiff
in that case had suffered a subsequent injury after the defendant’s expert had

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Similarly here, Acosta has designated as experts two physicians
who examined and operated on him and will testify at trial about his
condition. Sherwin-Williams’s expert, Dr. Jorgensen, explained in his
affidavit that he needed to examine Acosta to assess “the extent to which
[his] injuries were caused or exacerbated by” the accident, his “current
condition and what future care and treatment would be necessitated by”
the accident, “as well as what limitations [he] may have on his ability to
work.” Sherwin-Williams explains that these matters are central to its
defense.
In applying the third requirement, courts “should consider
whether the exam is likely to reveal information necessary to assess the
complained-of injuries beyond what could be obtained from reviewing
medical records available to the expert.” Auburn Creek, 655 S.W.3d at
842. Acosta asserts that Dr. Jorgensen has been able to complete his
expert report without an exam and, therefore, an exam is not necessary
for his testimony. But we conclude that Dr. Jorgensen’s affidavit
explains why he needs to examine Acosta to opine fully on the extent of
his injuries resulting from the accident.
In particular, Dr. Jorgensen stated in his affidavit that an exam
would provide him with information “that is not available from solely a
review of the medical records or the transcript from a deposition of the
treating physicians.” He observed that, as the records provided by
Acosta’s physicians showed, “orthopaedic spine surgeons . . . conduct

completed his report. Although we did identify a subsequent injury as a
relevant factor, we did not conclude it was necessary for an exam to be ordered.
H.E.B., 492 S.W.3d at 304.

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this type of spine examination whenever seeing a patient because [they]
are taught, where possible, to make their own observations of things
such as muscle strength, range of motion, tenderness to palpation,
reflexes, and nerve impingement.” He pointed out that “these tests are
subjective,” so an examination is necessary “to determine the validity of
the result, particularly whether or not the patient shows genuine effort
or presents evidence of malingering.” This evidence shows that the
exam is the least intrusive means for Dr. Jorgensen to opine fully on the
cause of Acosta’s injuries and his current condition, including any
limitations on Acosta’s ability to work.
Finally, we have recognized that having experts give certain
opinions without an examination can subject them to motions to strike
or to critical cross-examination. Id. at 843. At minimum, requiring Dr.
Jorgensen to testify at trial without the benefit of examining Acosta
would place him at a distinct disadvantage by allowing Acosta to call
into question his credibility in front of the jury. See H.E.B., 492 S.W.3d
at 304.
For these reasons, Sherwin-Williams has shown good cause to
compel a medical examination of Acosta. Because the trial court
reasonably could have reached only one conclusion on these facts, it
clearly abused its discretion in denying the motion to compel.
“Notwithstanding that abuse of discretion, we will not grant
mandamus relief if there is a clear and adequate remedy at law, such as
a normal appeal.” Id. (internal quotations omitted). Following H.E.B.
and Auburn Creek, we conclude that mandamus relief is appropriate
here. Sherwin-Williams’s defense challenges the cause and extent of

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Acosta’s injuries, and the “fair resolution of those challenges at trial
depends on competing expert testimony that [Sherwin-Williams] has not
been given an opportunity to develop.” Auburn Creek, 655 S.W.3d at
843. Because Sherwin-Williams’s ability to present a viable defense has
been severely compromised, it lacks an adequate remedy by appeal. In
re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex. 2008). The order
denying the requested exam should be withdrawn.
Accordingly, without hearing oral argument, see TEX. R. APP. P.
52.8(c), we conditionally grant Sherwin-Williams’s petition for writ of
mandamus. We direct the trial court to withdraw its order denying the
motion to compel and to issue an order compelling Acosta to submit to
the examination proposed in that motion. Our writ will issue only if the
trial court does not comply.

OPINION DELIVERED: May 5, 2023

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