OPINION 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. BACKGROUND[1] 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 such that the requested examination “is required to obtain a fair trial.” Id. at 304 (quoting Coates, 758 S.W.2d at 753); see In re Ten Hagen Excavating, 435 S.W.3d at 870 (noting that adequacy of less intrusive means “must still be evaluated in light of the fair trial standard”). Hartley argues that relators can obtain the desired information by reviewing the medical records he provided in discovery and, if necessary, deposing his physicians. However, Hartley intends to prove his condition through expert testimony, and his expert has already examined him. Relators seek the same opportunity for their expert, and the result of Dr. Sullivan’s proposed examination goes to the heart of their defense strategy. See In re H.E.B., 492 S.W.3d at 303–04 (noting that “denial of discovery goes to the heart of a case when the party is prevented from developing critical elements of its claim or defense” (citing Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995) (orig. proceeding))). Requiring Dr. Sullivan to refute Hartley’s expert without the benefit of an examination “places him at a distinct disadvantage because it allows [Hartley] to call into question his credibility in front of the jury.” See id. at 304. Relators have established that an examination is necessary to secure a fair trial. See id. (concluding on substantively identical facts that proposed examination was required to ensure personal-injury defendant received fair trial). Having concluded that relators established good cause for the proposed examination, we hold that the district court abused its discretion in denying their motion to compel. Notwithstanding that abuse of discretion, relators must also show that they lack an adequate remedy by appeal. See In re Prudential, 148 S.W.3d at 136. The Supreme Court of Texas recently concluded on materially indistinguishable facts that appeal was inadequate to remedy the improper denial of a Rule 204.1 motion to compel a physical examination. See In re H.E.B., 492 S.W.3d at 304–05 (“HEB seeks to allow its expert the same opportunity as Rodriguez’s expert to fully develop and present his opinion, ensuring a fair trial. Without that opportunity, HEB lacks an adequate appellate remedy.”). Applying that reasoning here, we conclude that relators have no adequate remedy by appeal. See id. COUNTERAFFIDAVITS We now turn to the district court’s order striking the section 18.001 counteraffidavits filed by Chapman and Dr. Sullivan. Relators argue that the district court clearly abused its discretion and they have no adequate appellate remedy. Section 18.001 provides “for the use of affidavits to streamline proof of the reasonableness and necessity” of past expenses. Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018). The statute provides in relevant part: Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary. Tex. Civ. Prac. & Rem. Code § 18.001(b). “A party intending to controvert a claim reflected by the affidavit must” timely serve a counteraffidavit on each party or the party’s attorney. Id. § 18.001(e). The counteraffidavit must provide “reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit” and must be made by a person qualified “to testify in contravention of all or part of any of the matters contained in the initial affidavit.” Id. § 18.001(f). Section 18.001 “is, in essence, an exception to the hearsay rule.” Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 491 (Tex. App.—Dallas 2016, pet. denied). If no counteraffidavit is filed, it “allows for the admissibility, by affidavit, of evidence of the reasonableness and necessity of charges which would otherwise be inadmissible hearsay,” provides that this evidence alone is sufficient to support certain findings of fact, and requires exclusion of contrary evidence, upon objection, in the absence of a proper counteraffidavit. Id. (quoting Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no writ)). Hartley argued in his motion to strike that Chapman and Dr. Sullivan are not qualified to opine on whether the contested medical expenses are reasonable, that they used an unreliable methodology, and that their counteraffidavits do not give “reasonable notice of the basis on which [relators] intends to controvert the reasonableness of the medical expenses[.]” Relators and amicus curiae argue that accepting any of these grounds was a clear abuse of discretion.[5] We will not decide if the district court abused its discretion because we conclude that relators have an adequate remedy by appeal. See In re North Cypress Med. Ctr., 559 S.W.3d at 130 (noting that for mandamus to issue, relator must show both that trial court abused its discretion and that no adequate appellate remedy exists). The requirement that the relator have no adequate appellate remedy “has no comprehensive definition.” In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding). The word “adequate” is “simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts.” In re Prudential, 148 S.W.3d at 136. This balancing “depends heavily on the circumstances presented and is better guided by general principles than by simple rules.” Id. at 137. “[A]n ‘adequate’ appellate remedy exists when ‘any benefits to mandamus review are outweighed by the detriments.’” In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017) (orig. proceeding) (per curiam) (quoting In re Prudential, 148 S.W.3d at 136). In this balancing, we consider whether mandamus review will (1) “preserve important substantive and procedural rights from impairment or loss,” (2) allow the appellate courts “to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments,” or (3) “spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential, 148 S.W.3d at 136. Relators do not expressly address whether mandamus is necessary to provide “needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments[.]” See id. However, several appellate courts have analyzed and applied section 18.001 on appeal. E.g., Gunn, 554 S.W.3d at 671–75; Haygood v. De Escabedo, 356 S.W.3d 390, 397–99 (Tex. 2011); Castro-Lopez, 503 S.W.3d at 490–94; Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.); Nye v. Buntin, No. 03-05-00214-CV, 2006 WL 2309051, at *2–4 (Tex. App.—Austin Aug. 11, 2006, pet. denied) (mem. op.). Thus, mandamus relief is not needed to develop the law on section 18.001 affidavits. Nor would mandamus spare the parties and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential, 148 S.W.3d at 136. “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding)). Mandamus is reserved for the exceptional cases in which conducting a trial or complying with a trial court’s order would result in a “gross and unnecessary waste of economic and judicial resources.” See In re J.B. Hunt Transp., 492 S.W.3d 287, 298 (Tex. 2016) (orig. proceeding). Relators argue that an appeal is inadequate to remedy the burden of conducting a trial without the advantages afforded by their counteraffidavits. The Supreme Court has recognized that there generally is no adequate appellate remedy for certain errors. E.g., id. at 299 (recognizing that allowing “a case to proceed in the wrong court necessarily costs ‘private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings’” (quoting In re Prudential, 148 S.W.3d at 136)). To show that the error here falls into the same category, relators rely on In re Brown, a similar case in which the defendants to a personal-injury action sought mandamus relief from an order striking their counteraffidavit. No. 12-18-00295-CV, 2019 WL 1032458 *1 (Tex. App.—Tyler Mar. 5, 2019, orig. proceeding) (mem. op.). After concluding that the trial court had abused its discretion, our sister court held that such error “is generally considered harmful” and thus constitutes reversible error. See id. at *6 (citing Hong, 209 S.W.3d at 804). The court held that mandamus should issue to prevent the “irreversible waste of resources” resulting from conducting a trial when appellate reversal was certain. Id. We disagree with Brown that error in striking a counteraffidavit is necessarily reversible and that the possibility of a second trial automatically renders appeal an inadequate remedy. Brown’s sole authority that the error is automatically reversible, Hong, does not so hold but instead applies the standard for reversible error set out in Rule 44.1. See id. at *6 (citing Hong, 209 S.W.3d at 804). To obtain reversal under that standard, a party must show both that error occurred and that it “probably caused the rendition of an improper judgment” or probably prevented the party from presenting its case to the appellate court. Tex. R. App. P. 44.1(a). Significantly, a reviewing court does not make this determination based on the nature of the error but on the entire record. See Gunn, 554 S.W.3d at 668 (noting that in determining whether error was harmful, “we must review the entire record”); In re Commitment of Gipson, 580 S.W.3d 476, 486 (Tex. App.—Austin 2019, no pet.) (same); Hong, 209 S.W.3d at 804 (same). We will not treat error in striking a counteraffidavit differently by treating such error as always harmful. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (stating that harmless-error standard “applies to all errors”). Nor does the likelihood of a second trial render an appellate remedy inadequate. Although the burden of conducting a second trial is not insignificant, it does not—without more—rise to the level of a gross and unnecessary waste of resources justifying mandamus relief. See, e.g., In re State, 355 S.W.3d 611, 615 (Tex. 2011) (orig. proceeding) (holding appellate remedy inadequate because “[r]equiring eight separate suits here, when only one is proper, would be a clear waste of the resources of the State, the landowners, and the courts”); In re Prudential, 148 S.W.3d at 136 (noting its previous holding that “defending the claims of more than 8,000 plaintiffs in litigation that would last for years was not mere expense and delay” (citing In re E.I. du Pont de Nemours & Co., 92 S.W.3d 517, 523–24 (Tex. 2002) (orig. proceeding))). As we explained recently, “to hold that mandamus relief is available whenever reversible error may lead to a second trial would change the nature of mandamus relief from extraordinary to ordinary.” See In re Bertucci, 590 S.W.3d 113, 117 (Tex. App.—Austin 2019, orig. proceeding) (citing Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 356 (Tex. 2019) (combined appeal & orig. proceeding); In re Coppola, 535 S.W.3d at 510). Having concluded the second and third Prudential considerations do not favor mandamus relief, we turn to whether mandamus review is “essential to preserve important substantive and procedural rights from impairment or loss.” In re Prudential, 148 S.W.3d at 136; see In re McAllen Med. Ctr., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding) (“The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial—regardless of the outcome—would defeat the substantive right involved.”). This danger arises when “the appellate court would not be able to cure the error, when the party’s ability to present a viable claim or defense is vitiated, or when the error cannot be made part of the appellate record.” In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding) (per curiam). Relators claim that mandamus review is warranted because the district court has completely vitiated their defense. To show that this has occurred, “the relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources.” Walker, 827 S.W.2d at 843. Generally, this has meant “a denial of discovery going to the heart of a party’s case,” Able Supply, 898 S.W.2d at 772, or sanctions “which have the effect of adjudicating a dispute . . . but which do not result in rendition of an appealable judgment,” In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam) (quoting TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (orig. proceeding)). Relators argue that striking their counteraffidavits amounts to an “effective denial of a reasonable opportunity” to mount a defense. See Walker, 827 S.W.2d at 843. They again turn to Brown, in which the court of appeals held that the relators in that case would “lose substantial rights if the order striking [their expert's counter] affidavit is allowed to stand.” 2019 WL 1032458, at *5. Specifically, the Brown court held that striking the relators’ counteraffidavit effectively vitiated their defense. See id. (explaining that “the limited avenues still available to a party who has a counter-affidavit struck are a far cry from the rights and protections afforded a party who has filed a proper counter-affidavit”). We disagree. Admittedly, if no counteraffidavit is filed, an opposing party may not introduce contrary evidence at trial, and the initial affidavit is sufficient evidence that the plaintiff’s expenses are reasonable and necessary. See Tex. Civ. Prac. & Rem. Code § 18.001(b); Castro-Lopez, 503 S.W.3d at 491. But a section 18.001 affidavit is not conclusive of the reasonableness or necessity of the charges, and it “does not operate to limit [the trier of fact's] discretion in assessing damages.” Grove v. Overby, No. 03-03-00700-CV, 2004 WL 1686326, at *6 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.). That is, the trier of fact “is not required to award a plaintiff the amount of damages established in the affidavit, but if it chooses to do so, the affidavit is sufficient evidence to support the finding that the past medical expenses were reasonable and necessary.” Castro-Lopez, 503 S.W.3d at 492. Nor does striking the counteraffidavit preclude the opposing party from contesting the initial affidavit. The opposing party may make “arguments contesting the affidavits during opening statements and closing arguments,” “cross-examine the offering parties about their injuries and prior medical conditions,” and “introduce corresponding medical records.” In re Flores, 597 S.W.3d 533, 535 (Tex. App.—Houston [1st Dist.] 2020, orig. proceeding) (citing Castro-Lopez, 503 S.W.3d at 494; Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *12 (Tex. App.— Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.))); see Grove, 2004 WL 1686326, at *6 (“It was not error to allow cross-examination and argument contesting Grove’s medical expenses.”). Based on these considerations, we agree with our sister court in Flores that striking a counteraffidavit does not impair a substantial right because parties “are not denied the opportunity to develop the merits of their case.” See id. at 537 (concluding that striking counteraffidavit does not impair substantial right). Having carefully balanced the benefits and detriments of mandamus review under the circumstances, we conclude that appeal would provide an adequate remedy for any error in the district court’s ruling striking the counteraffidavits. CONCLUSION We conditionally grant relators’ petition for writ of mandamus in part and direct the district court to withdraw its order denying relators’ motion to compel a medical examination and to grant the motion. The writ will issue only if the district court fails to comply. We deny all other relief.[6] Edward Smith, Justice Before Chief Justice Rose and Justice Kelly and Justice Smith Filed: July 30, 2020
