Zwick v. Hartford Life Insurance Company

Full title: WILLIAM S. ZWICK, Plaintiff, v. HARTFORD LIFE INSURANCE COMPANY, Defendant

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Feb 10, 2006

Case No.: 8:05-CV-453-T-17MAP (M.D. Fla. Feb. 10, 2006)

Opinion

Case No.: 8:05-CV-453-T-17MAP.

February 10, 2006

ORDER

MARK PIZZO, Magistrate Judge

THIS CAUSE is before the Court on Defendant's Motion for Order for Physical Examination Under Fed.R.Civ.P. 35 (doc. 27). Plaintiff has failed to respond to Defendant's motion. Therefore, the Court presumes Plaintiff has no objection to Defendant's requested relief. See Local Rule 3.01(b).

Under Rule 35, Defendant must establish that the Plaintiff's physical condition is "in controversy" and that it has "good cause" for the requested examination. Schlagenhauf v. Holder, 379 U.S. 104 (1964). In his complaint Plaintiff alleges total and permanent disability due to medical problems relating to his spine, heart and cardiovascular system, liver, hernia, and gastrointestinal disorders. He also alleges disability from back related disorders and claims of disabling pain. As such, this Court finds that Plaintiff has put his physical condition in controversy. The motion for an orthopaedic examination is granted.

Defendant also requests that this Court compel Plaintiff to undergo a psychiatric examination. Rule 35 requires an affirmative showing by the movant that each condition as to which the examination is sought is genuinely in controversy and good cause for ordering each examination exists. Id. This requires a greater showing than for other types of discovery under Rule 26. Ali v. Wang Laboratories, Inc., 162 F.R.D. 165, 167 (M.D. Fla. 1995). Nowhere in his complaint does Plaintiff allege any type of emotional distress or specific mental injury or disorder. In addition, nowhere in Defendant's motions does this Court find any reason proving the necessity for a mental examination. Defendant only states that "a psychiatric evaluation may also be necessary to evaluate the combination of Plaintiff's claimed disorders." (doc. 27). Defendant's motion for a psychiatric examination is denied.

ORDERED:

1. Defendant's Motion for Order for Physical Examination Under Fed.R.Civ.P. 35 (doc. 27) is GRANTED in part and DENIED in part.

2. The Plaintiff is to submit to an orthopaedic examination to be conducted by Michael D. Slomka, M.D., at a date and time mutually convenient to both parties.

DONE and ORDERED.