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The high court on Friday overturned a trial court decision and granted a writ of mandamus requested by the owners of Auburn Creek Apartments in San Antonio. The decision will require the Pau family to undergo a variety of tests to performed by Dr. Gilbert Martinez, a neuropsychologist who is serving as an expert witness for the defendants.

“Auburn Creek’s defense largely turns on its challenges regarding the cause, nature, and extent of the Paus’ brain injuries, and a fair resolution of those challenges at trial depends on competing expert testimony that Auburn Creek has not been given an opportunity to develop,” the opinion says.

Six members of the Pau family filed a lawsuit that alleges they suffered “life-altering tissue damage” and brain injuries from exposure to carbon monoxide emitted by a faulty furnace and flu pipe in a unit adjacent to the apartment they rented from Auburn Creek. The lawsuit seeks economic damages of $33 million.

After a trial date was set but continued six times, Dr. Martinez asked that members of Pau family undergo a face-to-face clinical assessment, a process that he said would require up to 53 separate tests and take up to ten hours to complete.

Martinez did not provide any details about the tests, other than that he would assess the claimed injuries of memory impairment, language difficulties, anxiety and depression. He said that he wouldn’t know which tests were appropriate until he interacted with the plaintiffs. Also, he said there was a risk of error and bias if the family members knew the exact tests before they are administered.

Judge Aaron Haas, with the 73rd District Court in Bexar County, denied Auburn Creek’s motion to compel the testing. He found that Martinez had not adequately described the scope of the testing, and the the tests would not be completed before the end of the discovery period which was only give days away.

Auburn Creek filed a motion with the Fourth Court of Appeals requesting a writ of mandamus to overturn the trial court, which was denied. The defendants appealed to the Supreme Court.

The high court, in an unsigned opinion, said Auburn Creek asked for the testing well before the end of the discovery period, but the hearing was delayed because of circumstances beyond its control. It was an abuse of discretion to deny is motion because of timeliness, the opinion said.

Turning to the merits, the court said Auburn Creek had met all three requirements of Rule 204.1, which set forth the procedures requesting medical testing in civil actions. The defendant had shown that there was a controversy over the plaintiffs’ neuropsychological condition, that the tests would lead to relevant evidence, that the testing was reasonable in light of that controversy and that the information could not be obtained by less intrusive means, the court said.

“For these reasons, Auburn Creek has shown good cause to compel a medical examination of the opposing parties,” the opinion says. “Because the trial court reasonably could have reached only one conclusion on these facts, it clearly abused its discretion in denying the motions.”


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