The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LISA CONNER,
Plaintiff,
v. Case No. 2:20-cv-840-SPC-NPM
MARRIOTT HOTEL SERVICES, INC.
and PREMIER AMUSEMENTS, INC.,
Defendants.
ORDER
Before the Court is Defendant Premier Amusement, Inc. and Marriott Hotel
Services, Inc.’s Motion to Perform Medical Examination (Doc. 48, 57). Plaintiff Lisa
Connor opposes the motion in its entirety. (Doc. 55). At the Court’s direction (Doc.
56), Defendants filed an unredacted version of its motion and directed Defendants
to file a reply to Plaintiff's response to address Plaintiff’s requested conditions for a
physical examination (Doc. 55, pp. 4-6). The matter is now ripe for review. For the
following reasons, the motion (Doc. 48, 57) is granted.
I. Background
This action arises from an injury Plaintiff allegedly sustained while playing a
Hologate virtual reality game at the JW Marriott Hotel in Marco Island, Florida.
(Doc 43, ¶¶ 7-23). Plaintiff alleges she was wearing high heels while playing with
the Hologate system but lost her balance and fell. (Doc. 43, ¶¶ 20, 23). Now she
brings one count for negligence against Defendant Marriott and failure-to-warn
counts in strict liability and negligence against Defendant Premier. (Doc. 43).
Defendants wish to conduct an in-person medical examination of Plaintiff
within the Middle District of Florida. (Doc. 48, 57). However, Plaintiff resides in
Virginia and has a serious medical condition that she claims makes her vulnerable
and at a higher risk of severe infection if exposed to Covid-19. (Doc. 55). Plaintiff
requested that any examination take place in Virginia or by Zoom (Doc. 55, pp. 1-
2), but Defendant’s chosen physician is within the District and is licensed to practice
only in Florida (Doc. 57, pp. 4-5). While the main point of contention is the location
of the Rule 35 examination, Plaintiff also briefly argued that there is no real
controversy about her injuries, and no good cause exists for the examination. (Doc.
55, pp. 3-4).
II. Law and Discussion
A. Entitlement to Rule 35 Examination
A court has broad discretion to compel or deny discovery. Harrison v.
Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014); NetJets Aviation, Inc. v. Peter
Sleiman Dev. Grp., LLC, No. 3:10-cv-483-J-32MCR, 2011 WL 6780879, *2 (M.D.
Fla. Dec. 27, 2011). “The trial court is given wide discretion in setting the limits of
discovery, and its judgment will be overturned only when a clearly erroneous
principle of law is applied or no evidence rationally supports the decision.” Liese v.
Indian River Cty. Hosp. Dist., 701 F.3d 334, 354 (11th Cir. 2012) (cleaned up)
(quoting Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.
1985)).
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, manner, conditions, and scope of the examination, as well as the
person or persons who will perform it.
Fed. R. Civ. P. 35(a).
For the Court to grant motions under Rule 35, the party requesting a mental
or physical examination must have “adequately demonstrated the existence of the
Rule’s requirements of ‘in controversy’ and ‘good cause.’” Schlagenhauf v. Holder,
379 U.S. 104, 118-119 (1964); see also Barnello v. Bayview Loan Servicing, LLC,
No. 6:14-cv-1383-Orl-41TBS, 2015 WL 6165277, *2 (M.D. Fla. Oct. 20, 2015)
(quoting Schlagenhauf, 379 U.S. at 118-119). The Supreme Court has held that these
requirements “are not met by mere conclusory allegations of the pleadings—nor by
mere relevance to the case—but require an affirmative showing by the movant that
each condition as to which the examination is sought is really and genuinely in
controversy and that good cause exists for ordering each particular examination.”
Schlagenhauf, 379 U.S. at 118. Rule 35 “requires discriminating application by the
trial judge” because it has the added “good cause” requirement, which indicates “that
there must be greater showing of need … than under the other discovery rules.” Id.
But situations exist in which the pleadings alone may suffice to meet these
requirements. Id. at 119. Specifically, a “plaintiff in a negligence action who asserts
… physical injury … places that … physical injury clearly in controversy and
provides the defendant with good cause for an examination to determine the
existence and extent of such asserted injury.” Id. Likewise, courts in this District
have ordered Rule 35 examinations based on pleadings that allege physical injuries
due to a defendant’s negligence. See Roberson v. Church, No. 3:09-cv-372-J-
34MCR, 2009 WL 5214989, *1-2 (M.D. Fla. Dec. 29, 2009); Ronco v. State Farm
Mut. Auto. Ins. Co., No. 3:14-cv-1238-J-JRK, 2015 WL 13567351, *1 (M.D. Fla.
Aug. 7, 2015).
Plaintiff has placed her physical condition in controversy by alleging that
Defendants’ negligence caused serious and permanent bodily injuries. (Doc. 43,
¶¶ 30, 35, 39); Schlagenhauf, 379 U.S. at 119. “[T]here is no dispute that [Plaintiff’s]
injury to her hip occurred when she fell while playing the virtual game,” nor “any
serious contention” that she was immediately taken to a hospital to undergo hip
surgery. (Doc. 55, p. 3). And so Plaintiff claims there is no controversy or good cause
for an examination. (Doc. 55, p. 3). The Court is not persuaded.
Plaintiff put her medical condition in controversy, and Defendants have a right
to investigate that condition, especially given Plaintiff’s complex medical history
and the potential relationship between her preexisting conditions and multiple
subsequent surgeries. In order to assess the extent of any impairments due to the
broken hip injury, Defendants are entitled under Rule 35 to a physical examination.
Not only is Plaintiff’s condition in controversy, but Defendants have shown good
cause for the examination.
B. Rule 35 Examination Protocol
If the threshold determinations of “in controversy” and “good cause” are met,
then the Court must address the specifics of the examination, stating “the time, place,
manner, conditions, and scope of the examination, as well as the person or persons
who will perform it.” Fed. R. Civ. P. 35(a)(2)(B). Here, Defendants retained Dr.
John Shim to conduct a physical examination of Plaintiff. Defendants seek to have
the examination conducted in-person and at Dr. Shim’s office in Oldsmar, Florida
on October 27, 2021 at 2:30 p.m. EST (Doc. 57, p. 10). But Plaintiff seeks to avoid
an in-person examination due to the risk of exposure to Covid-19. (Doc. 55, p. 2).
In the event an in-person examination is ordered, Plaintiff provided eleven
conditions for the examination (Doc. 55, pp. 4-6), most of which Defendants do not
oppose (Doc. 58, pp. 2-4). Upon review of the conditions, stipulations, and
deviations suggested by Defendants, the Court adopts the following protocols and
safeguards:
1. The examination will take place within the Middle District of Florida, in
person, and at a mutually agreeable time and place. If the parties cannot agree
to a location, Plaintiff may opt to either: (1) travel to Tampa and visit Dr.
Shim’s office in Oldsmar, Florida; or (2) travel to the northernmost major
city in the Middle District – Jacksonville, Florida – and visit with Dr. Shim
at a defense-provided location in that vicinity. If the parties do not agree to a
date and time, the examination will take place on October 27, 2021 at 2:30
p.m EST, unless the new Covid-19 cases in Florida for the most recently
reported prior week is 35,000 or more1 and Plaintiff is unwilling to travel as
a result. (See Doc. 58, p. 3).2 If the weekly new case numbers require a
postponement of the October 27, 2021 examination, the parties will jointly
request an extension of time.
2. All individuals in attendance must wear a mask.
3. The examination is not a deposition so the examiner shall be limited to
eliciting information reasonably necessary to conduct the specialty-
appropriate examination and evaluation of an individual, including a medical
history as well as present complaints. No invasive testing shall be performed
without informed consent by the Plaintiff, or further court order.
4. Plaintiff will not be required to complete any lengthy information forms
upon arrival at the examiner’s office. Plaintiff will furnish the doctor with
her name, address, and date of birth. Questions pertaining to how the Plaintiff
was injured, and where and how the Plaintiff sustained the injuries
complained of, are permitted. Questions pertaining to “fault”, when the
1 Notably, as of the state’s October 8, 2021 report, the most recent weekly new case number is
25,792—far below 35,000—and six times lower than in the early weeks of August.
2 The Court agrees with Defendants’ suggestion to monitor Florida’s Covid-19 cases via the
Florida Department of Health Weekly Florida COVID-19 Data Report. (Doc. 58, p. 3).
Plaintiff hired her attorney, who referred the Plaintiff to any doctor, and what
the Plaintiff told her attorney or any investigators are NOT permitted.
5. It shall be the defense attorney’s responsibility to provide the examiner
with all medical records, imaging studies, test results, and the like, which the
defense wants the examiner to review and rely upon as part of the
examination. Unless she has exclusive control of any original records or
imaging studies, Plaintiff shall not be required to bring anything to the exam
other than valid identification (e.g., driver’s license, state-issued
identification card or government-issued passport).
6. Plaintiff’s counsel may send a court reporter or a videographer to the
examination, provided that plaintiff counsel notifies defense counsel at least
5 days in advance of the identity, either by proper name or by title (e.g.,
videographer from XYZ Reporting Service). It is the duty of defense counsel
to relay this information to the examiner’s office personnel.
7. Plaintiff is permitted to have her attorney (and spouse, or parent, or other
representative) present for the examination, provided that only one of these
listed non-attorney persons may attend. No more than three (3) individuals
may be present in the examination room at a given time, including Dr. Shim
and Plaintiff. Any videographer will set up a stationary camera and monitor
from another room. Plaintiff may have someone physically present with her
during the examination if she so chooses. Such person may unobtrusively
observe the examination, unless the examiner establishes that no other
qualified individual in the area would be willing to conduct the examination
with such person present. In the case of a neuropsychological exam, all
observers shall watch and listen from an adjacent room if available, or by
video feed.
8. Neither Defendants’ attorney nor any of Defendants’ representatives may
attend, observe, record or video the exam. Only if a video is identified as
impeachment material for use at trial may defense counsel obtain a copy. The
medical examiner shall not be entitled to any payment of an additional or
accommodation fee from the Plaintiff or her counsel, simply because of the
presence of legally permitted third parties. The court shall reserve ruling as
to whether such costs, if imposed by an examiner, may be properly
recoverable by the Defendants as a taxable cost, or otherwise awarded by the
court.
9. If a videotape or digital recording is made of the examination by plaintiff
counsel, it is considered work-product, and neither the defense nor the
examiner is entitled to a copy, unless and until same is designated as (or
reasonably expected to become) trial evidence, subject to discovery only
upon a showing of need and undue hardship. Use of the video or DVD is
limited specifically to the instant litigation. At the close of litigation,
including any appeal, all copies shall be destroyed – unless counsel
convinces the court (and an order is entered) that there is some compelling
reason for either party, or the examiner, to retain a copy.
10. Neither Plaintiff’s counsel, nor anyone else permitted to be present, shall
interject themselves into the examination unless the examiner seeks
information expressly prohibited by this Order. If Plaintiff’s counsel speaks
openly or confers privately with the examinee, and this disrupts the exam or
causes the examiner to terminate the examination, counsel may be subject to
sanctions.
11. The report of the examiner shall be sent to Plaintiff’s counsel, unless
otherwise agreed between counsel for the parties or ordered by the court.
11(a). If the examination involves neuropsychological testing: In addition
to the report, the examiner shall provide all raw data, including copies of
all notes, tests, test results, scoring and test protocols, to Plaintiff’s
treating or retained psychologist or neuropsychologist, who must return
them to the defense examiner at the conclusion of this case.
12. All protected health information generated or obtained by the examiner
shall be kept in accordance with HIPPA requirements and shall not be
disseminated by the examiner or defense counsel to any other person or entity
not a party to this case without a specific order from this court.
13. Defense counsel must provide the examiner with a copy of this Order and
explain the need for the examiner’s compliance.
III. Conclusion
Accordingly, it is ORDERED:
(1) Defendants’ Motion to Perform Medical Examination (Docs. 48, 57) is
GRANTED.
(2) Unless otherwise agreed, Plaintiff will submit to a physical examination
by Dr. John Shim on October 27, 2021 at 2:30 p.m EST, so long as
the Covid-19 cases in Florida do not rise above an average of 35,000
cases weekly. And unless otherwise agreed, the location of the
examination will take place either at Dr. Shim’s office in Oldsmar,
Florida or at a defense-provided location in Jacksonville, Florida. The
examination will be conducted in compliance with the provisions of this
order.
ORDERED in Fort Myers, Florida on October 14, 2021.
Lida Ee Line □□□
NICHOLAS P. MIZEL
UNITED STATES MAGISTRATE JUDGE