AUSTIN - The Texas Supreme Court has concluded that a trial court clearly abused its discretion in finding that Auburn Creek did not establish good cause for examination in a $33 million suit over alleged carbon-monoxide exposure.
Court records show that six members of the Pau family sued Auburn Creek LP, the Lynd Family LP, The Lynd Company, and Forty Four Eleven LLC (collectively Auburn Creek) alleging they were exposed to carbon-monoxide in an apartment they leased from Auburn Creek.
The mandamus proceeding in the high court concerns a motion to compel a medical examination under Texas Rule of Civil Procedure 204.1.
“Because the motion was filed before the close of discovery and the trial court clearly abused its discretion in concluding that relators did not establish good cause for the examination, we conditionally grant relief,” states the Supreme Court’s Dec. 2 opinion.
According to the opinion, on June 1, 2021, Auburn Creek filed a Rule 204.1 motion to compel a neuropsychological exam for each of the Paus. With the motion, Auburn Creek included an affidavit from its medical expert that stated he could not ethically express a medical opinion based solely on records.
The trial court denied the motion without prejudice, concluding that the scope of the exams was not sufficiently circumscribed, the opinion states.
“Accordingly … we conditionally grant Auburn Creek’s petition for writ of mandamus,” the opinion states. “We direct the trial court to withdraw its orders denying the motion to compel and partially striking the expert and to sign an order requiring the Paus to submit to the examination proposed in Auburn Creek’s motion for reconsideration on reasonable terms and conditions. Our writ will issue only if the trial court does not comply.”
Case No. 21-0886