Neuropsychologist Expert WitnessesLast summer, the Texas Court of Appeals heard the appeal of a Jones Act case in which injured employee sought damages for physical and psychological injuries incurred while he was employed with a fleet of inland tank barges and towing vessels. Although the injured employee‘s neuropsychologist performed a two-day examination that included a battery of tests, the trial court denied the employer’s request for its neuropsychologist to perform a 6½-hour evaluation with no duplicative testing. Instead, the trial court limited that examination to two hours and required the expert to provide advance disclosure of the tests he planned to administer. Employer argued that by so doing, the trial court abused its discretion.  

Following his examination Employee’s neuropsychologist recommended long-term treatment and rehabilitation, and he concluded that injured employee‘s impairments would be progressive, requiring lifelong medical care. 

Employer filed a motion for reconsideration, attaching an affidavit from its expert that explained the time restriction essentially would prevent him from performing an effective evaluation of the disorders diagnosed by Employee’s expert neuropsychologist. The trial court denied the motion. 

On appeal, the Texas Court of Appeals explained that to be entitled to mandamus relief, a petitioner must show both that the trial court abused its discretion and that there is no adequate remedy by appeal. A trial court abuses its discretion if its actions are made “without reference to any guiding rules and principles” or are “arbitrary or unreasonable.”  

The panel of Court of Appeals Justices, Keyes, Bland, and Massengale, wrote in their opinion that requests for a physical or mental examination of an adverse party are governed by Rule 204.1. A trial court may issue an order for a psychological examination when 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.”  

In addition, the Court said the movant must show that the party’s condition is in controversy and that there is good cause for the evaluation. The good-cause requirement requires a court to balance the movant’s right to a fair trial and the opposing party’s right to privacy. To show good cause for the examination, a movant must: (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. 

Employer addressed each of these requirements in its Rule 204.1 motion, and Employee didn’t dispute that his psychological and cognitive condition was in controversy. Instead, he challenged the intrusiveness of the testing and requested two limitations the trial court ultimately imposed—a two-hour time period for the examination and advance notice of the tests to be administered. 

Employer argued that its proposed testing conditions were the least intrusive means to obtain the information it needed. Its expert agreed not to repeat tests already conducted by Employee’s neuropsychologist and stated that 6½ hours of testing would be necessary to perform a standard neuropsychological evaluation. In its motion for reconsideration and in its mandamus petition, Employer asserted that the time and advance-notice limitations imposed by the trial court were an abuse of discretion because they were unreasonable in light of the proof presented, and they essentially precluded its expert from performing a valid, standard neuropsychological assessment. 

Employee responded that because Employer failed to state the type of tests to be performed, it had no support for its request for a 6½-hour testing period. Moreover, he argued that without knowing the tests the expert would perform, the trial court was unable to determine whether the secret tests were previously conducted, whether they were the substantial equivalent of tests that were already performed, or whether they were even necessary in the first place. 

But the limitations placed on Employer‘s expert essentially denied Employer‘s right to an evaluation. In support of this conclusion, Employer showed that: (1) the two-hour time limit would essentially prevent the expert from performing a standard neuropsychological examination, thereby limiting the information available to him and the conclusions he could draw; (2) the two-hour time limit would prevent him from rendering a diagnosis on each of the examining neuropsychologist‘s diagnoses because relating almost six thousand pages of medical and legal records to injured employee‘s conditions couldn’t be done in two hours; (3) a single test of psychopathology takes two hours to administer; (4) a psychopathology test, such as the one performed by Employee’s examining neuropsychologist, could be affected by attitude, but isn’t influenced by a “practice effect”; (5) the examining neuropsychologist administered only one test to assess PTSD, and none of the tests he administered are recommended by the National Center for PTSD; (6) the examining neuropsychologist‘s diagnosis of major depressive disorder requires further assessment because depression can be both a symptom of other mental disorders and an independent disorder; (7) lack of forewarning of tests to be administered is important to measure motivation and malingering; and (8) the American Academy of Clinical Neuropsychology contradicts injured employee‘s claim of “practice effect” from repeat neuropsychological testing. 

The Court noted, quoting one of its 2014 decisionsthat while a trial court must specify the time and scope of testing pursuant to Rule 204.1(d): 

When a party asserts a physical or mental condition as part of a claim or defense, a trial court must be careful not to prevent the development of medical testimony that would allow the opposing party to fully investigate the conditions the party asserting the existence of the condition has placed in issue. 

The Court went on to hold that “[i]f the intended examination is not intrusive, invasive or unnecessarily physically uncomfortable,parties may explore matters not addressed by its opponent’s examinations, make observations, and attempt to discover facts contradictory to the opinions of the opposing expert. 

In light of the fact that Employee’s examining neuropsychologist conducted a battery of 28 neuropsychological tests over a two-day periodreaching multiple diagnoses that were based on his in-depth examination of Employeefundamental fairness dictated that Employer‘s expert be allowed to conduct a standard neuropsychological evaluation, or it will be at a severe disadvantage in the battle of experts.” The limitations imposed by the trial court denied Employer the ability to conduct a full evaluation, the limitations violate fundamental fairness and the fair-trial standard. Therefore, it was an abuse of discretion.  

In considering mandamus relief, the adequacy of the appellate remedy is determined by balancing the benefits and detriments of mandamus. The Court found that there was no adequate appellate remedy when a defendant is denied the opportunity for its expert to fully develop his opinion. The limitations imposed by the trial court were shown to prevent Employer‘s expert from performing a standard neuropsychological assessment, and thus the limitations essentially denied him the opportunity to fully develop his opinion and diagnoses. Moreover, these limitations prevented Employer from effectively challenging injured employee‘s experts.  

The Court of Appeals panel wrote that a fair trial is ensured only if the defendant’s expert has the same opportunity as [the opposing party’s expert] to fully develop and present his opinion. And without that evidence, an appellate court is unable to evaluate the effect of the trial court’s error. Balancing the benefits with the detriments of granting mandamus relief, the limitations imposed by the trial court would unreasonably hamper Employer‘s ability to present a defense and to challenge injured employee‘s expert witness, and therefore appeal would not be an adequate remedy. 

Because Employer established that the trial court’s limitations on the expert‘s examination were an abuse of discretion for which there was no adequate remedy by appeal, the Court of Appeals conditionally granted mandamus relief and ordered the trial court to vacate its order to the extent it limited the expert‘s evaluation to a two-hour period and required advance disclosure of tests to be administered.