Opinion
6:23-cv-1741-PGB-DCI
07-23-2024
LILLIAN CARMONA, Plaintiff, v. BJ'S WHOLESALE CLUB, INC., Defendant.
ORDER
DANIEL C. IRICK, UNITED STATES MAGISTRATE JUDGE
This cause comes before the Court for consideration without oral argument on the following motion:
MOTION: Unopposed Motion for Medical Examination (Doc. 18)
FILED: July 19, 2024
THEREON it is ORDERED that the motion is GRANTED.
This action involves a claim for damages for injuries Plaintiff alleges were the result of a slip-and-fall incident. Docs. 1; 18. Allegedly, because of the incident, Plaintiff suffered “pain and suffering, disability, disfigurement, permanent and significant scarring, aggravation/activation of a disease or defect, mental anguish, loss of the capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of the ability to earn money, and aggravation of a previous existing conditions.” Doc. 18 at 2 (quoting Doc. 1-3). “Specifically, [Plaintiff] contends that as a result of her fall . . ., she sustained injuries to both of her hips, her left shoulder, and her lower back.”
Defendant has filed a motion for physical examination of Plaintiff pursuant to Federal Rule of Civil Procedure 35. Doc. 18 (the Motion). Therein, Defendant asserts that Plaintiff has placed Plaintiff's physical health in controversy and there is good cause to order Plaintiff to submit to a orthopedic examination. Id. Defendant seeks to have a licensed orthopedic surgeon “evaluate issues including, but not limited to, the nature and extent of her claimed injuries and assess, inter alia, the injuries to her hips and lower back, whether she requires surgery for her lower back injury, the need for any continuing treatment, and any ongoing limitations with respect to the Plaintiff's activities of daily living.” Id. at 1. Defendant proposes the following examination:
• Date & Time: October 11, 2024 at 9:00 am
• Examiner: Dr. Ravi Patel
• Location: Orlando Orthopedic Center, 25 W. Crystal Lake St., Suite 200, Orlando, FL 32806
• Scope: A noninvasive orthopedic evaluation concerning the “the nature and extent of [Plaintiff's] claimed injuries and assess, inter alia, the injuries to her hips and lower back, whether she requires surgery for her lower back injury, the need for any continuing treatment, and any ongoing limitations with respect to the Plaintiff's activities of daily living.”Id. Defendant requests that the Court enter an order permitting the examination outlined above and states that the Motion is unopposed. Id.
The party moving for a mental or physical examination under Rule 35 has the burden of establishing that the opposing party's physical or mental condition is both in controversy and that there is good cause for the Court to order the examination. Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). The order setting a Rule 35 examination 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)(2)(B).
Defendant has sufficiently demonstrated that Plaintiff has placed her physical health in controversy. Further, Plaintiff does not object to the Motion, and appears to agree that she has placed her physical health in controversy. Therefore, the Court finds that Defendant has established good cause for compelling Plaintiff to submit to the examinations outlined in this Order.
Accordingly, it is ORDERED that the Motion (Doc. 18) is GRANTED.
ORDERED.