In Re Ivy Kids, L.L.C. v. the State of Texas

Stay Lifted; Petition for Writ of Mandamus Conditionally Granted in Part
and Memorandum Majority and Dissenting Opinions filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00762-CV

IN RE IVY KIDS, L.L.C., Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
240th District Court
Fort Bend County, Texas
Trial Court Cause No. 21-DCV-285601

DISSENTING MEMORANDUM OPINION

I agree with the majority in denying Relator’s petition for writ of mandamus
as to the parents of L.A., but disagree with the majority’s decision to conditionally
grant, in part, Ivy Kids’ petition for writ of mandamus and direct the trial court to
grant Relator’s requested relief as to L.A. The trial court did not abuse its
discretion in finding that Ivy Kids did not establish good cause to compel an
independent medical examination of L.A.
The record shows that Relator did not establish good cause because Relator
failed to demonstrate that the desired information cannot be obtained by less
intrusive means. See Tex. R. Civ. Proc. 204.1(c); In re Auburn Creek Ltd. P’ship,
655 S.W.3d 837, 841 (Tex. 2022) (orig. proceeding) (per curiam). Good cause
requirements for an independent examination exist for a reason: to protect the
privacy rights of individuals while allowing parties to obtain information necessary
to assess the injuries asserted by the injured party. See In re Auburn Creek Ltd.
P’ship, 655 S.W.3d at 841. There was no evidence adduced that a less intrusive
mechanism available—review of the medical records—was attempted, and no
evidence provided in Dr. Ziv’s affidavit or otherwise that Dr. Ziv reviewed the
medical records. See In re Sherwin-Williams Co., 668 S.W.3d 368, 371 (Tex.
2023) (orig. proceeding) (per curiam) (“In [determining whether the desired
information cannot be obtained by less intrusive means], courts ‘should consider
whether the exam is likely to reveal information necessary to assess the
complained-of injuries beyond what can be obtained from reviewing medical
records available to the expert.’” (quoting In re Auburn Creek, 655 S.W.3d at
843))). Dr. Ziv testifies in her affidavit “[t]he litigation records I have reviewed to
date seem to indicate Plaintiffs are asserting significant physical, emotional, and
mental anguish damages that are far in excess of what would normally be
anticipated given the nature of the alleged misconduct.” This statement addresses
damages, belying Relator’s argument that the “litigation records” reviewed by Dr.
Ziv included medical records.

It is not a burdensome task to state specifically in an affidavit that medical
records were reviewed, and then discuss why the medical records would not be

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I agree with the majority in denying Relator’s petition for writ of mandamus
as to the parents of L.A., but disagree with the majority’s decision to conditionally
grant, in part, Ivy Kids’ petition for writ of mandamus and direct the trial court to
grant Relator’s requested relief as to L.A. sufficient to render an expert opinion.
See, e.g., id. at 371 (concluding that expert’s affidavit explained the need to
examine defendant when he “explained in his affidavit that he needed to examined
[defendant] 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.”). The trial court could have reasonably found that Ivy Kids failed
to show that the information could not be obtained by less intrusive means. See In
re Christianson Air Conditioning & Plumbing, L.L.C., 639 S.W.3d 671, 681 (Tex.
2022) (orig. proceeding); In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03
(Tex. 2016) (orig. proceeding) (per curiam). Because the trial court did not abuse
its discretion in denying the requested examination of L.A., I respectfully dissent.
See In re H.E.B. Grocery Co., L.P., 492 S.W.3d at 302–03.

/s/ Justice Margaret “Meg” Poissant

Panel consists of Justices Wise, Zimmerer, and Poissant. (Poissant, J., dissenting).

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