United States District Court, M.D. Florida, Tampa Division
P. FLYNN UNITED STATES MAGISTRATE JUDGE.
the court is Defendant's Corrected Motion to Compel
Psychological Examination (“Defendant's
Motion”) (Doc. 31), Plaintiff's Amended Motion for
Protective Order Against Her IME and Her Deposition in
Florida (“Plaintiff's Motion”) (Doc. 36), and
the parties' responses in opposition thereto (Docs. 33
& 37). Upon consideration, Plaintiff's Motion and
Defendant's Motion are granted in part and denied in
Motion to Compel Plaintiff's Psychological
seeks to compel Plaintiff to undergo a mental examination by
Eric Kaplan, M.D. (“Dr. Kaplan”), a
board-certified clinical and forensic psychiatrist, in Lutz,
Florida, on January 31, 2020, the day after Plaintiff's
noticed deposition. Under Rule 35(a), a Court may order a
party whose mental or physical condition is in controversy to
submit to a physical or mental examination by a suitably
licensed or certified examiner. However, the order “may
be made only on motion for good cause and on notice to all
parties and the person to be examined.” Fed.R.Civ.P.
35(a). A “Plaintiff's ‘mental condition'
within the meaning of Rule 35 is not . . . placed in
controversy merely because plaintiff seeks recovery for
‘emotional distress.'” Ali v. Wang
Laboratories, Inc., 162 F.R.D. 165, 167-68 (M.D. Fla.
1995). To establish good cause for a mental examination, a
defendant must show that a plaintiff's claim has
“gone beyond a mere claim for emotional
a citizen and resident of Turkey, sued Defendant under Title
VII and the Florida Civil Rights Act (“FCRA”) for
sex discrimination, retaliation, and national origin
discrimination (Doc. 8). Plaintiff alleges that due to the
discrimination, she “sought mental treatment through
the EAP program and her condition was so bad that her
counselor continued to treat her for no charge after the EAP
sessions had expired.” (Id. at ¶28).
Plaintiff's mental health counselor indicated that
Plaintiff experienced severe appetite, sleep and elimination
disturbance, severe general anxiety, and severe panic attacks
as a result from her experiencing sexual harassment on the
job. (Doc. 31-4). Moreover, in her interrogatory responses,
Plaintiff states that she suffers from anxiety, mental
anguish, emotional pain and suffering, loss of confidence,
weakness, and fearfulness of being around men (Doc. 31-2 at
11-12). As a result, Plaintiff seeks compensatory damages in
the maximum amount allowed by law, including damages for
“emotional pain, suffering, inconvenience, mental
anguish, loss of dignity and loss of enjoyment of life,
” among others (Doc. 8 at 6-9; Doc. 31-2 at 11).
argues that Plaintiff has clearly placed her mental condition
in controversy and Plaintiff does not dispute this assertion.
See Gritt v. Target Corp., No. 807CV181T27EAJ, 2008
WL 1777744, at *2 (M.D. Fla. Apr. 18, 2008) (“A mental
examination is warranted when . . . plaintiff concedes that
her mental condition is in controversy within the meaning of
Rule 35”). Additionally, the Court is independently
satisfied that Plaintiff's allegations, interrogatory
responses, and damages sought place her mental condition in
controversy. See Tracey P. v. Sarasota County, No.
8:05-CV-927-T-27EAJ, 2006 WL 1678908, at *2 (M.D. Fla. June
16, 2006) (finding that the plaintiffs has placed her mental
condition in controversy when in their responses to
interrogatories they alleged that the defendants actions have
caused them “tremendous emotional harm” and
“severe anxiety and fear.”). Consequently, the
Court finds good cause to compel Plaintiff to submit to a
Plaintiff does not oppose the request for a psychological
examination, she moves for a protective order for relief from
having to travel to the United States for her deposition and
examination scheduled for later this month. Plaintiff argues
that she recently accepted employment in Qatar and will be on
probation for three months beginning January 15,
2020. Plaintiff is fearful that if she takes
time off work to attend her deposition and medical
examination while on probation or discloses the purpose of
her trip to the United States, she would be terminated from
her new employment.
a plaintiff must make herself available for deposition in the
judicial district in which she filed suit. Curry v. HSBC
N.A. Holdings, Inc., No. 8:14-CV-2420-T-30JSS, 2015 WL
4911447, at *2 (M.D. Fla. Aug. 17, 2015); see also
DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600, 608 (N.D.
Fla. 2019) (stating t hat there is a presumption that a
plaintiff may be deposed in the district in which he has
initiated his action); Culhane v. MSC Cruises (USA),
Inc., 290 F.R.D. 565, 566 (S.D. Fla. 2013) (stating that
the “Plaintiff in an action should expect to be deposed
in the forum where the action is pending”). Indeed, the
Middle District of Florida Local Rules provide that “it
is the general policy of the Court that a non-resident
plaintiff may reasonably be deposed at least once in this
District during the discovery stages of the case . . .”
M.D. Fla. R. 3.04(b). Similarly, the prevailing view in this
and other districts is that a medical or mental examination
“should take place in the district where the action is
pending.” Faynik v. Magical Cruise Co., Ltd.,
No. 617CV1282ORL37TBS, 2018 WL 7360664, at *1 (M.D. Fla. Aug.
2, 2018) (citing in accord Plaintiff B v. Francis,
No. 5:08CV79-RS/AK, 2009 WL 1360853, at *1 (N.D. Fla. May 12,
2009); Seybold v. Soso Clapis, No.
612CV1630ORL37GJK, 2014 WL 12631445, at *2 (M.D. Fla. Apr.
22, 2014); and Levick v. Steiner Transocean Ltd.,
228 F.R.D. 671, 672 (S.D. Fla. 2005)). This policy ensures
that “the examining doctor is available as a witness at
t rial.” Faynik, 2018 WL 7360664, at *1
Court, however, may modify the time, place, and manner of a
deposition or medical examination “to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c); see also
Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731
(11th Cir. 1984) (stating that when the location of a
deposition is in dispute, the Court has broad discretion to
control the course of discovery). The movant must show
“good cause” for entry of the protective order.
Fiore v. Goodyear Tire & Rubber Co., No.
209CV843FTM29SPC, 2010 WL 11455371, at *1 (M.D. Fla. Oct. 1,
2010). Under the “good cause” standard, the court
must balance the competing interests of the parties.
McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89,
91 (11th Cir. 1989). Plaintiff proposes that her deposition
be taken via videoconference and her mental examination be
performed in Qatar. Alternatively, she proposes that her
deposition, mental examination, and the mediation be
scheduled on consecutive days after her probation period
expires. The Court agrees with the latter approach.
is more than an ordinary witness in this case. Her testimony
will likely be a central piece of evidence for both parties.
Due to the significance of Plaintiff's expected
testimony, Defendant should be afforded the opportunity to
depose Plaintiff in person. See Arval Serv. Lease S.A. v.
Clifton, No. 3:14-CV-1047-J-39MCR, 2015 WL 12818837, at
*3 (M.D. Fla. June 23, 2015) (“In determining whether
to issue a protective order, courts balance such factors as .
. . the content and importance of plaintiff's testimony,
and the type of claim”); Huddleston v. Bowling
Green Inn of Pensacola, No. 3:19-CV-1545-MCR/MJF, 2019
WL 7046347, at *4 (N.D. Fla. Dec. 18, 2019) (stating that
“[i]f feasible, a defendant generally should be
afforded an opportunity to depose such a plaintiff in
person”). Moreover, even if the Defendant were able to
locate a qualified examiner in Qatar, the parties cannot
ensure that “the examining doctor [will be] available
as a witness at t rial.” See Faynik, 2018 WL
7360664, at *1.
Plaintiff has not demonstrated a specific undue burden or
expense which precludes her from traveling to the Middle
District of Florida for her deposition and mental examination
after her three-month probation period. See Seybold,
2014 WL 12631445, at *2 (stating that “absent evidence
of an undue burden or expense, [a plaintiff] should not now
complain about having to travel to the forum of her choosing
for physical examinations”). Therefore, while the Court
is satisfied that Plaintiff's risk of losing her job
provides good cause to protect her from attending her
deposition and psychological examination before the end of
her three-month probation period, no good cause exists to
modify the location of her deposition and mental examination,
or to order Defendant to pay for Plaintiff's traveling
and lodging costs.
on the foregoing, it ...