UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

LATARA COLAY,

Plaintiff,

v. CASE NO. 6:23-cv-1499-WWB-UAM

CITY OF DAYTONA BEACH, FLORIDA, et al.,

Defendants. ________________________________/

ORDER

THIS CAUSE is before the Court on Defendants’ Time-Sensitive, Partially Unopposed Motion for Order Compelling Physical Examination of Plaintiff (“Motion”). Doc. 32. Defendants seek an order requiring Plaintiff to submit to a physical examination by Dr. Richard L. Shure, on January 31, 2025, at 11:30 a.m. Doc. 32 at 2-3. The Motion is mostly unopposed. Id. at 7; Doc. 34; Doc. 35 at 1-2. Additionally, Defendants have shown good cause for the requested examination pursuant to Federal Rule of Civil Procedure 35 (“Rule 35”). The parties dispute only whether the examination should be recorded, as requested by Plaintiff. Compare Doc. 32 with Doc. 35. Plaintiff appropriately acknowledges the prevailing authority that “an examinee ordinarily does not have a right to have counsel or a videographer present at a Rule 35 exam,” and the Court’s

1 “discretion to allow such presence” requires “a showing of good cause or ‘special circumstances.’” Doc. 35 at 4 (citing Osgood v. Disc. Auto Parts, LLC, No. 3:13-cv-1364- J-34,

, at *6 (M.D. Fla. Jan. 21, 2014)); see also Kozlowski v. Wal-Mart

Stores E., LP, No. 5:21-cv-261-ACC-PRL,

, at *1 (M.D. Fla. Sept. 12, 2022); Santamaria v. McDowell, No. 3:21-cv-603-BJD-MCR,

, at *8 (M.D. Fla. Apr. 25, 2022). Plaintiff also appropriately acknowledges the prevailing authority that, as the party seeking to record the examination, she “bears the burden

of demonstrating good cause” for her request. Doc. 35 at 6 (citing Wailes v. Doherty, No. 3:21-cv-180-BJD-PDB,

, at *1 (M.D. Fla. Aug. 19, 2021)); see also Kozlowski,

, at *1; Santamaria,

, at *8. Plaintiff argues that the requisite good cause and special circumstances for recording exist in this case for four reasons: (i) “Plaintiff suffers from an array of mental

health challenges,” such that she is vulnerable and susceptible to confusion and cognitive challenges, Doc. 35 at 6-7; (ii) allowing recording “fosters the most accurate factual record” of the examination, id. at 7; (iii) recording would guard against the potential for intrusive or adversarial questioning to ensure lines are not “crossed” and “that all inquiries remain within permissible bounds” without overreaching, id. at 7-8;

and (iv) recording provides an objective record to avoid later controversies, id. at 8-9.1

1 Plaintiff includes a perfunctory and undeveloped “argument” as to the length of the examination. Id. at 9. Such is not properly raised. See Terrell v. Sec’y, Dep't of Veterans Affs., 98

2 Plaintiff’s final three arguments are wholly unpersuasive. “[T]hese generalized arguments could be made about any Rule 35 examination in any case and provide no special circumstances about this case that justify” recording. See Kozlowski,

, at *2 (rejecting arguments that recording was necessary “‘to preserve an accurate record of the compulsory medical examination of Plaintiff and to prevent an unnecessary credibility dispute between Plaintiff and Defendant’s professional witness’”; to “‘ensure the defense examiner does not interrogate Plaintiff on liability questions in order to seek damaging admissions’”; and to “‘protect Plaintiff from the

all-too-common disagreements about what was and was not said during the exam’”); see also Medina v. Valdez, No. 5:24-cv-479-JSM-PRL,

, at *2 (M.D. Fla. Sept. 9, 2024). Moreover, Plaintiff has given no reason to doubt that the chosen examiner, to which she did not object, will conduct an ethical and professional

examination. See Medina,

, at *2; Kozlowski,

, at *2; see also Santamaria,

, at *8. The only even arguably special circumstance Plaintiff suggests about this case is her alleged mental health and cognitive issues. Doc. 35 at 6-7. But, as discussed above, Plaintiff acknowledges that it is her burden to show good cause. Id. at 4, 6; see also

F.4th 1343, 1356 (11th Cir. 2024); Berry v. Crestwood Healthcare LP,

, 1313 (11th Cir. 2023); Cousins v. Sch. Bd. of Orange Cnty., Fla.,

, 1280 (M.D. Fla. 2023). In any event, Plaintiff has not justified limiting the examination to 2 hours. See Santamaria,

, at *7.

3 Osgood,

, at *7 (explaining “good cause” inquiry looks for showing of “special circumstances” that “call for a protective order tailored to the specific problem presented”) (quotation omitted). Yet Plaintiff offers no evidence of these issues,2 only

summary say-so. See Tomlinson v. Landers, No. 3:07-cv-1180-J-TEM,

, at *3 (M.D. Fla. Aug. 12, 2009) (“Since Plaintiffs have neither come forward with evidence that Defendant’s medical expert will not conduct a fair examination, nor come forward with any other evidence that would justify issuance of a protective

order under Rule 26(c), the Court shall deny Plaintiffs’ ore tenus motion [to have a court reporter or videographer record the examination].”); cf. Evanston Ins. Co. v. Republic Props., Inc., No. 6:16-cv-1649-Orl-40GJK,

, at *4 (M.D. Fla. Feb. 5, 2018) (“Generalized concerns, conclusory statements, or unsupported contentions are insufficient reasons for entry of a protective order.”); Herrera v. R & L Carriers, Inc.,

No. 2:16-cv-795-FtM-99MRM,

, at *2 (M.D. Fla. June 2, 2017) (finding motion for protective order was due to be denied as it relied “solely on the factual representations of its counsel without offering any actual evidence to support its positions”). Regardless, the undersigned does not find recording necessary under the circumstances. Recording carries risks including, among others, potentially

2 The only “evidence” mentioned by Plaintiff is certain deposition testimony filed by Defendant that Plaintiff argues reflects her cognitive issues. Id. at 6-7. But Plaintiff does not pinpoint cite to any specific testimony and, in any event, the undersigned is unable from the limited deposition excerpts to draw the sweeping mental-health conclusions Plaintiff argues.

4 causing a distraction, injecting a partisan character into the inquiry that could diminish the process, lending artificiality to the examination, and being inconsistent with the standard of professional care. See Osgood,

, at *6-7. In addition, Plaintiff's concerns are appropriately addressed by the ordinary safeguards under Rule 35 and applicable law. See Santamaria,

, at *8; Hollman v. Nokland, No. 8:10-cv-0121-T-24AEP,

, at *2 (M.D. Fla. Nov. 17, 2010). Thus, the Court will grant the Motion without the recording requested by Plaintiff. Accordingly, it is ORDERED: 1. The Motion (Doc. 32) is granted. 2. Plaintiff, Latara Colay, shall submit to a physical examination by Dr. Richard L. Shure, on January 31, 2025, at 11:30 a.m. at Riley Reporting Company, 1300 Riverplace Boulevard, #610, Jacksonville, Florida 32207. 3. The manner, conditions, and scope of the examination shall be as set forth above and in the Motion. DONE AND ORDERED in Jacksonville, Florida, on January 24, 2025.

[Z J. Horovitz United States Magistrate Judge Copies to: Counsel of Record