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In re Society of Our Lady of Most Holy Trinity

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 23, 2019


          On Petition for Writ of Mandamus.

          Before Justices Benavides, Longoria, and Hinojosa.



         In this original proceeding, The Society of Our Lady of the Most Holy Trinity (Society) contends the trial court[2] abused its discretion by allowing the real party in interest, Jane Doe, to videotape the psychological examination ordered for Doe pursuant to Texas Rule of Civil Procedure 204.1. See Tex. R. Civ. P. 204.1 (providing for court- ordered physical and mental examinations). Society seeks to compel the trial court to vacate its November 27, 2018 order allowing for Doe's examination to be recorded by video and its December 12, 2018 order denying reconsideration of that order. Because Doe did not meet her burden to show good cause for the examination to be videotaped, we conditionally grant the petition for writ of mandamus.

         I. Background

         Doe filed suit against Society and others[3] alleging that she was raped and sexually abused as a child by Stephen Tarlton Dougherty, who was at that time a priest. In 2018, Dougherty was convicted of raping Doe when she was thirteen years old. He was sentenced to sixty years of imprisonment. In the present civil lawsuit, Doe alleged, in part, that Society knew Dougherty was "an admitted child molester" before it ordained him as a priest and promoted him to the public as a parish priest. Doe asserted that Dougherty admitted to Society, prior to his ordination, that he had previously sexually abused an eight-year old boy, R.B. Doe sought damages for past and future medical expenses, pain and suffering, mental anguish, physical impairment, and lost wages and diminished wage-earning capacity.

         On September 11, 2018, Society filed a "Motion to Compel an Independent Medical Examination" of Doe on grounds that she had "alleged past and present severe physical, emotional and psychological pain and suffering, mental anguish, physical impairment, medical expenses, and lost wages." Society requested that Dr. Gabrielle Hobday, a board-certified forensic psychiatrist, perform the examination and prepare a report regarding the results.

         On September 14, 2018, Doe filed a response to Society's motion for an examination alleging, inter alia, that Society had failed to show good cause for the examination because experts had not yet been designated in the case and Society could obtain the desired information through less intrusive means. Doe objected to Society's request as unreasonable, overly broad, and unduly burdensome, and she argued that the request failed "to state with specificity the examination(s) sought" and failed "to identify how the examination(s) sought (which are not identified) are relevant to the issues in controversy."

         On September 14, 2018, the trial court held a hearing on Society's motion to compel the examination. One of Doe's counsel stated that he was "not opposed" to the examination itself but was concerned about the parameters of the proposed examination and wanted to avoid a "deposition" with "questions wholly outside of the range of things that should be asked." The trial court discussed the Coates case and its requirement that the movant show good cause for the examination and suggested that the examination should be "narrowly tailored." Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988) (orig. proceeding) (establishing the "good cause" test for examinations under former Rule 167, now Tex.R.Civ.P. 204). The trial court ultimately recessed the hearing to allow the parties to attempt to agree on the location, duration, and parameters of the proposed examination.

The trial court held a second hearing on Society's motion to compel an examination on November 11 or 14, 2018.[4] Society advised the trial court that the parties had not been able to resolve the outstanding issues pertaining to the examination. Society stated that Doe's counsel had requested that (1) Hobday identify in advance the tests that she would be conducting during the examination, and (2) the examination be videotaped with a "live video feed" or with an observer present during the examination. Society argued that these conditions were not supported by the law and noted that Doe's expert, Dr. Alexandria H. Doyle, who had examined Doe, [5] was not similarly encumbered in performing her examination. Society further argued that the examination was necessary to fully evaluate Doe's claims and conditions.

         At the hearing, Doe's counsel appeared to retreat from his former position that he was "not opposed" to the examination. Doe's attorneys argued that Society had not met its burden to show good cause for the examination and argued that Doe was entitled to know the names of the tests that Hobday would administer. Doe's counsel further asserted that Society already had relevant information regarding Doe's psychological status in the form of her testimony in the transcripts from Dougherty's criminal trial and her medical records. Counsel requested that the trial court order that Doe's counsel be permitted to be present at the examination because counsel had previous experience "where experts go outside of a [c]ourt's order" and "experts have tried to interview whoever drove the Plaintiff to the interview session." Counsel further requested that the trial court order Society to identify the tests that would be administered during the examination and to limit the examination to the identified tests "so that all of us have knowledge of what's going on." Counsel argued as follows:

This is obviously an adverse proceeding. We're not going to place our vulnerable young lady who has been raped in a position where we don't know what's going on. We want to know what she can expect that day. I don't have to know every word that's going to be said, but I do want to know the tests. I do want to know the framework of what is anticipated so that we can make sure that the Court approves of that, finds good cause for it, and so we know what is going to take place.
We ask that only the Plaintiff be examined. That the Plaintiff is not deposed during the examination. That the Plaintiff is permitted to request breaks in the examination as needed and that a copy of the examiner's report be produced to Plaintiff's counsel. We're asking no later than 7 days following the examination. And so, if the Defendant's [sic] can show good cause and provide the Court and us with the information as to the type of testing that they want to do, meaning the names of the tests and how they anticipate this examination to be structured, then we would ask that the Court place certain parameters [on] this examination and the Defendant can go forward with that.

         In response, Society confirmed that it was seeking a "noninvasive mental evaluation through an interview" conducted in a "manner customary of a forensic psychiatrist." The trial court admitted several exhibits into evidence under seal, including Doyle's expert report and Hobday's curriculum vitae. Society also offered into evidence, and the trial court admitted under seal, some of Doe's testimony from Dougherty's criminal trial and an excerpt from a police report. Society argued that these exhibits showed that Doe provided varying accounts of a previous sexual incident and that it should not have to rely on her "conflicting testimony" regarding the effect of this previous incident without its own "independent evaluation." In the two-page excerpt of the transcript from the criminal trial, Doe testified that a seventeen or eighteen-year-old relative exposed himself to her and she went to one counseling session regarding this incident. The excerpt from the police report appears to concern this same event.

         Society contended that opposing counsel's suggestions that the examination might effectively constitute a deposition or that Hobday would re-traumatize Doe was "impugning the professionalism of an expert." Society stated that it could not agree to have an observer present during the examination because it could potentially invalidate the results of the examination. Society further argued that Society and Doe should be on the "same footing" with respect to the examination and noted that Doe had not provided it with prior notice that Doyle would be examining Doe or which tests Doyle planned to administer to Doe. Society pointed out that Doyle's examination had not been recorded or videotaped and Society did not have the opportunity to be present at that examination. Society also alleged that if it had to provide advance descriptions of the tests that were to be administered by Hobday, Doe might be "prepped or coached" for the examination, which would invalidate the exam as an analytical tool.

         After extensive discussion, [6] the trial court requested that the parties provide letter briefs regarding whether Society should be required to disclose in advance the types of testing to be utilized for the examination and whether a third party could be present for the observation or whether a recording device such as a "video feed" should be utilized during the examination.

         By letter brief filed on November 19, 2018, Doe's counsel requested the trial court to allow counsel to be present at the examination and to require Society to disclose the "anticipated tests to be performed during the mental examination" of Doe. Doe discussed several conflicting cases regarding whether an attorney should be allowed to be present at an examination and asserted that counsel's presence was required in this case:

Further, the court should consider the Plaintiff at issue in this case, who was raped by Defendant Dougherty, who was sponsored and promoted to the priesthood by [Society] and assigned to parishes in Texas and other dioceses in the United States [and] whom [Society] represented to others, including the public, as being a chaste and sexually safe and . . . moral role model for children. Plaintiff was 13 years old when she was raped by Dougherty. Dougherty has been sentenced to sixty years in prison due to his conduct.
As noted by Plaintiff's expert, and contained in the report of Alexandria Doyle, Ph.D. (which was presented to the Court and placed under seal) regarding behavioral observations of the Plaintiff, Doyle stated, "Her thinking was somewhat slow and difficult to follow at times, and it appeared that she had to work hard to concentrate on the questions being asked." She goes on to state that, Plaintiff "was cooperative with all procedures although by the end of the evaluation, fatigue may have been a factor in her test responses." Plaintiff is a 20[-]year[-]old woman with an 11th grade education. She has struggled with learning difficulties in school that "became worse over time and she was classified as Special Ed". She experiences anxiety and panic due to the events made the basis of this case. She "has crying spells and generally feels emotionally overwhelmed and unable to problem solve." The [s]ymptoms of traumatic stress and a pervasive sense of vulnerability have negatively affected [her] functioning.
Due to the Plaintiff and the events made the basis of this case, as well as the fact that this matter is an adversarial proceeding, Plaintiff's counsel should be allowed to be present in the room or by live video feed during the mental examination and/or a video camera placed on the Defendant's expert to record the mental examination.

         Doe further argued that the trial court should require Society to provide notice regarding the types of tests to be performed at the examination and contended, in part, that it would violate her privacy rights not to be provided with this information.

         On November 26, 2018, Society filed a letter brief in opposition to the requests made by Doe in her letter brief. Society's letter brief generally provided authority and argument in support of its contention that the trial court should deny Doe's requests.

         On November 27, 2018, the trial court granted Society's motion to compel an examination of Doe under Rule 204.1. The court ordered Doe to submit to a medical examination by Hobday for a four-hour period, at a location to be agreed upon, and specified that the manner of examination would be "the usual manner of examination utilized by the doctor in conducting examinations to determine [the] extent, if any, of Plaintiff's injuries at issue in this case." The trial court's order defines the scope of the examination as "an independent mental evaluation by Dr. Gabrielle Hobday to determine the findings or lack thereof and the nature of Plaintiff's alleged injuries." The order requires Society to pay for the examination and traveling expenses for Doe and requires Society to produce a copy of Hobday's report to Doe's counsel. The specific provision of the order at issue here, interlineated in handwriting, states that the court "will allow for a video recording of the examination."

         On December 7, 2018, Society filed a motion to reconsider the court-imposed video recording of the examination. Society extensively discussed case law supporting its position that to allow a third party to witness the examination, or even to allow the examination to be recorded, would significantly impact the results of the examination. ...

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