UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

THOMAS GRIEB,

Plaintiff, 2:24-cv-265-JLB-NPM v.

KEVIN RAMBOSK, SEAN SWEENEY, TATIANA ORTEGA, MICHAEL GARCIA, BRYAN MCDUFFIE, and JOSHUA ROBINSON,

Defendants.

ORDER Plaintiff Thomas Grieb brought this civil rights action against defendants Kevin Rambosk, Sean Sweeney, Tatiana Ortega, Michael Garcia, Bryan McDuffie, and Joshua Robinson after he was arrested and allegedly beaten at the Naples Jail Center. As part of his damages, Grieb alleges he suffered emotional injuries. (Doc. 22). So, defendants seek to compel a Rule 35 mental examination of Grieb and have selected Dr. Lori Butts to conduct a remote psychological exam.1 (Doc. 54).

1 Federal Rule of Civil Procedure 26(b)(1) permits parties to obtain discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Rule 35(a) falls under this scope of discovery umbrella and provides, in part, that:

(1) … The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner ....

(2) … The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, Grieb does not dispute that good cause exists for the proposed exam, or that the exam is relevant and proportional, but instead requests that certain conditions and

limitations be established for the exam. Specifically, Grieb requests that his wife and his attorney be present for the examination, that it be recorded, that Dr. Butts not be allowed to conduct a deposition or quasi-deposition, and that the exam last no longer

than two hours. (Doc. 55). On July 7, 2025, the court conducted a hearing on the motion to compel. (Doc. 60). We find no good cause to depart from the norm. Concerning the presence of third parties, the majority view in federal court is to exclude them from Rule 35

examinations absent special circumstances. See Bradshaw v. Zagorac, No. 5:24-cv- 37-JSM-PRL,

, *1 (M.D. Fla. Dec. 3, 2024) (collecting cases). “[T]he party seeking to have the observer present bears the burden of demonstrating

‘good cause’ for the request pursuant to Fed. R. Civ. P. 26(b), as the presence of a third party is not typically necessary or proper.” Gordon v. United States, No. 20- 14118,

, *2 (S.D. Fla. Mar. 8, 2021) (citation omitted). Grieb has not met his burden. Although he alleges that his experiences leading up to this case

have taken an “emotional toll” on him, that he has a distrust of authority, and that the exam is at the behest of defendants—the very same authority that allegedly beat

manner, conditions, and scope of the examination, as well as the person or persons who will perform it. him—these are not special circumstances. To be sure, mental examinations are often conducted to determine the mental or emotional impact of an event that is at the

center of litigation, and adversarial parties frequently request such examinations. And while Grieb expresses a distrust of defendants, he has not pointed to any circumstances suggesting that Dr. Butts might conduct something other than an

ethical and professional examination. Notably, Grieb did not object to the defendants’ choice of Dr. Butts as the examiner. So, this request is denied. See Wailes v. Doherty, et al., No. 3:21-cv-180-BJD-PDB,

, *1 (M.D. Fla. August 19, 2021) (plaintiff failed to show any special circumstances for

allowing the presence of his counsel and videographer at the examination). Grieb’s argument that the examination should be recorded because there is a fear that the doctor may attempt to take a quasi-deposition is also not persuasive.

This is a speculative argument that could be (and too often is) made about any Rule 35 examination, and it does not present any special circumstances. As noted above, there is no evidence that Dr. Butts will do anything more than what her profession requires. Furthermore, during the hearing, plaintiff counsel conceded that

many practitioners refuse to conduct similar examinations in state court because they are often recorded. As such, this request is denied. See Hightower v. Macclenny Tire & Lube, Inc., No. 3:19-cv-219-J-32PDB,

, *3 (M.D. Fla. Dec. 2,

2019) (“Instead of imposing conditions that detract from the core purpose of the examinations and invite compliance disputes, the Court defers to the traditional standards by which doctors and lawyers are governed for reasonable assurance that the examinations will be conducted in a professional manner.”’). As for the length of the exam, there is no reason to doubt that Dr. Butts will spend any more time with Grieb than professionally necessary. So, the defendants’ proposed limit of six hours is reasonable. See generally, Schlunt v. Verizon Directories Sales-West, Inc., No. 3:05-cv-666-J-25MCR,

, *4 (M.D. Fla. June 12, 2006) (limiting mental exam to five hours). Likewise, the scope of the exam has been adequately defined. Finally, the examination shall take place within two weeks of this order. If the parties cannot agree on a date and time within three business days, they must contact chambers, and we will select a date and time. If defendants intend to use Dr. Butts

as a Rule 26(a)(2) witness or Grieb requests a copy of her report, defendants must produce the report within fourteen days of the exam. Defendants’ motion (Doc. 54) is GRANTED. The exam will be conducted in accordance with this order. ORDERED on August 25, 2025 NICHOLAS P. a or é United States Magistrate Judge

-4-