Memorandum in Response to Defendant's Motion for Physical Exam

PLAINTIFF'S MEMORANDUM IN RESPONSE TO DEFENDANT'S

MOTION FOR PHYSICAL EXAMINATION

Defendant has moved pursuant to Fed. R. Civ. P. 35(a) for an order requiring Plaintiff to submit to a "standard orthopedic medical examination" by Dr. Edward Smith, (insert address), on (insert date) at (insert time). The Defendant also asks for an order requiring Plaintiff to bring with her at that time "a copy of all available hospital, medical or other health care reports, including results of diagnostic studies, which have not been previously furnished to Defendant's attorney, and which are related to the injuries that are the subject of her Complaint, to enable the examining doctor to provide as complete an examination as possible."

Plaintiff is not opposed in principle to the concept of submitting to a physical examination pursuant to Fed. R. Civ. P. 35(a). However, Plaintiff's counsel has as yet been unable to confirm Plaintiff's availability on (insert date and time). Plaintiff resides in Florida, has a young child, and the precise date and time set forth in the Motion may prove to be inconvenient. Courts generally require that a physical examination be conducted at a time and place that is not inconvenient to the party to be examined. See Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2234 at 678.

Plaintiff's counsel will consult with Plaintiff, determine her availability for examination on (insert date and time), and advise defense counsel and the Court accordingly. Although Plaintiff's counsel does not anticipate that there will be any difficulty agreeing on a date with defense counsel, Plaintiff's counsel reserves the right to object to the specific date and time set forth in the event that it proves inconvenient to Plaintiff.

Plaintiff also requests that 's curriculum vitae be forwarded to her counsel so that, to the extent that counsel might have any questions, concerns or objections to 's qualifications, they can be raised with defense counsel and the Court. Rule 35(a) requires that a physical examination be conducted by a suitably licensed or certified examiner. In Defendant's Motion for Physical Examination, is identified only as an M.D. and it is stated that he will conduct a "standard orthopedic medical examination." In this regard, Plaintiff requests the curriculum vitae of for review and also requests that an explanation be provided as to...