Mack v. Curtis

• Court: District Court, M.D. Florida
• Decided: October 18, 2022
• Docket: 8:22-cv-01484
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

SEAN MICHAEL MACK,

Plaintiff,

v. Case No: 8:22-cv-1484-TPB-JSS

MARK ANDREW CURTIS and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY,

Defendants. ___________________________________/ ORDER Defendant Mark Andrew Curtis moves to compel Plaintiff’s attendance for a physical examination pursuant to Federal Rule of Civil Procedure 35. (Motion, Dkt. 23). In support of the Motion, Defendant submits a proposed order providing certain conditions for the examination and compelling the examination to be conducted by Dr. Steven Knezevich at Northside Orthopaedics, 3820 Northdale Boulevard, Suite 105-A Tampa, FL 33624, on November 11, 2022 at 4:00 p.m. (Dkt. 23-1.) Plaintiff does not oppose the Motion, subject to the conditions outlined in the proposed order. (Dkt. 23.) Upon consideration, the Motion (Dkt. 23) is GRANTED. Under Federal Rule of Civil Procedure 35, a court may, on a motion for good cause shown, order a party to submit to a physical or mental examination by a suitably licensed or certified examiner when the party’s medical condition is “in controversy.” Fed. R. Civ. P. 35(a). In a negligence action, a plaintiff places his or her mental or physical condition in controversy by asserting a mental or physical injury, thereby providing the defendant with “good cause for an examination to determine the

existence and extent for such asserted injury.” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). In this matter, Plaintiff sues Defendants for negligence arising from a motor vehicle accident and alleges that he suffered bodily injury as a result of the accident. (Dkt. 1-1.) Plaintiff’s physical condition is therefore in controversy and good cause

exists for Defendant Curtis’ request for a physical examination of Plaintiff. See Schlagenhauf, 379 U.S. at 119 (noting that the good cause requirement of Rule 35 may be satisfied when, for example, a plaintiff “in a negligence action asserts mental or physical injury”); see also Calderon v. Reederei Claus–Peter Offen GMBH & Co., 258 F.R.D.

523, 524 (S.D. Fla. 2009) (a plaintiff in a negligence action who asserts physical injury places that injury in controversy and satisfies the good cause for an examination). In accordance with Federal Rule of Civil Procedure 35(a)(2)(B), the Motion and the proposed order specify the time, place, manner, conditions, and scope of the examination, as well as the person who will perform it. See (Dkts. 23, 23-1.) Further,

Plaintiff does not oppose the Motion, subject to the conditions outlined in the proposed order. (Id.) Accordingly, it is ORDERED: 1. Defendant Curtis’ Unopposed Motion to Compel Plaintiff’s Attendance for Rule 35 Physical Examination (Dkt. 23) is GRANTED. 2. The Proposed Order Compelling Rule 35 Physical Examination (Dkt. 23- 1) is approved and incorporated herein. ORDERED in Tampa, Florida, on October 18, 2022.

JULIE §. SNEED UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record

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