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Filing # 193690932 E-Filed 03/11/2024 07:00:16 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ASBEL ALEXANDER LLERENA
Plaintiff,
CASE NO.: 2020 CA 002872 AN
Vs.
ADRIAN RODRIGUEZ CHAVEZ
AND GRANNY'S GARDEN II,
INC.
Defendants.
/
Plaintiff’s Motion for Reconsideration of Defendants’
Motion In Limine to Exclude Cumulative Testimony of
Plaintiff’s Experts and/or Treating Physicians
Under Florida Rule of Civil Procedure 1.540, Plaintiff moves this
Court to reconsider its recent ruling to not allow treating physicians to
give causation opinions at trial as follows:
1. This case arises out of a car crash that occurred on December 3,
2019. The central issues to be decided by the jury are causation
and permanency of injuries, along with damages.
2. Plaintiff has filed two disclosures of expert witnesses. First on
October 24, 2022; amended on December 11, 2023. [Exhibit A].
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3. In each Plaintiff identified his treating physicians and stated that
these physicians would testify at trial on the issues of causation
and permanency of injuries, including future treatment needed.
4. On February 12, 2024, Defendants filed a Motion in Limine to
prohibit the treating physicians from testifying to causation.
5. On March 8, 2024, this Court heard Defendant’s Motion in Limine.
At the Conclusion of the hearing, Defendant’s Motion was
granted, due to deception and misrepresentation of law to the
new Judge that had just been transferred over to Civil division.
6. Versions of Defendant’s Motion are repeatedly denied by Florida
Judges that are informed of the misrepresentation of law 1:
Exhibit 1- Hon. Judge Margaret H. Schreiber
County: Orange
Case No.: 2019-CA-011759-O
Order date: 03/03/2023
Holding: DENIED.
Exhibit 2- Hon. Judge Virginia B. Norton
County: Duval
Case No.: 16-2020-CA-004368
Order date: 05/04/2022
Holding: DENIED.
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Plaintiff can supplement many more orders on the issue if requested. Only 10 are provided for brevity.
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Exhibit 3- Hon. Judge Susan Stacy
County: Seminole
Case No.: 59-2018-CA-003449
Order date: 06/15/2021
Holding: DENIED.
Exhibit 4- Hon. Judge Dan R. Mosley
County: Lake
Case No.: 2021CA279
Order date: 08/15/2022
Holding: DENIED.
Exhibit 5- Hon. Judge Vincent S. Chiu
County: Orange
Case No.: 2021-CA-003771
Order date: 05/26/2022
Holding: DENIED.
Exhibit 6- Hon. Judge Paetra T. Brownlee
County: Orange
Case No.: 2019-CA-15092-O
Order date: 08/16/2021
Holding: DENIED.
Exhibit 7- Hon. Judge Caroline T. Arkin
County: Hillsborough
Case No.: 2020-CA-004416
Order date: 09/02/2022
Holding: DENIED.
Exhibit 8- Hon. Judge Marianne L. Aho
County: Duval
Case No.: 2021-CA-2135
Order date: 07/01/2022
Holding: DENIED.
Exhibit 9- Hon. Judge Gloria R. Walker
County: Baker
Case No.: 02-2020-CA-58-CAAM
Order date: 01/19/2022
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Holding: DENIED.
Exhibit 10- Hon. Judge Kathryn D. Weston
County: Volusia
Case No.: 2019 10352 CIDL
Order date: 04/20/2021
Holding: DENIED.
Argument
I. Controlling Florida Law is clear that Treating Physicians can give
their opinion testimony for trial on the issues of Causation,
Permanency, and Future Medical Care while being disclosed as
Non-Retained Experts
1. On May 4, 2022, Judge Virginia Norton of the Fourth
Judicial Circuit in and for Duval County issued a written on the
same issue before the Court in the instant motion. See May 4, 2022
Order attached hereto as Exhibit 2.
2. Judge Norton details that Defendant’s reliance on
Gutierrez is misplaced because Gutierrez does not hold that the
testimony of treating physicians should be limited to the contents
of their medical records or that treating physicians are not allowed
to give expert opinions. Ex. 2, Para. 11.
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3. Nothing in Gutierrez can be read to restrict treating
physicians to being mere readers of records, nor does the decision
suggest that opinions not specifically spelled out in the medical
records of treating physcians are inadmissible. Ex. 2, Para. 12.
4. Defendant’s boilerplate Motion is contrary to the law
and facts of this case. Specifically, the motion states that “there is
nothing to suggest the treating physicians needed to develop a
causation opinion in order to treat Plaintiff.” The boilerplate motion
continues, “there is no indication from Plaintiff’s treatment records
that almost all (if not all) physicians formed such an opinion during
their treatment of Plaintiff.”
5. The Motion focuses on causation opinions from
Plaintiff’s treating physicians regarding Plaintiff’s medical
conditions, causation of his injuries, Plaintiff’s subjective statements
regarding the motor vehicle crash, and whether the treating
physicians attempted to eliminate any other cause of Plaintiff’s
conditions. They were not hired by one side in a lawsuit, a critical
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distinction made by the Florida Supreme Court in Worley v. Central
Florida Young Men’s Christian Ass’n. Inc., 228 So. 3d 18, 23 (Fla. 2017).
In Worley, the Florida Supreme Court made it clear that treating
physicians are not subject to the same discovery requirements and
restrictions that retained expert witnesses are at trial. This
distinction is also made in the Gutierrez case which is heavily cited
by the Motion. Gutierrez v. Vargas, 239 So. 3d 615, 623 (Fla. 2018).
6. Nonetheless, the Defendants allege that because
Plaintiff’s treating physicians will give permanency and causation
opinions, they are somehow transformed into a retained expert.
This position ignores the well-established law in Florida that in
many circumstances, “a treating doctor…while unquestionably
an expert, does not acquire his expert knowledge for the purpose
of litigation but rather simply in the course of attempting to make
his patient well.” Clair v. Perry, 66 So. 3d 1078 (Fla. 4th DCA 2011)
citing Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981)).
In Perry, the court refused to accept the defendant’s contention
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that a treating doctor who gives permanency opinions
automatically becomes an expert witness. Id. The Third District
Court of Appeal affirmed a trial court ruling allowing a treating
physician to so testify (which was made in reconsideration of a
prior trial court ruling not allowing same) on the issue of
permanency, even when that opinion was not disclosed during
discovery. The appellate court ruled that the appellant was not
prejudiced in her ability to mount a defense in the case. The
appellant had been provided the medical records which
contained all the data upon which the doctor formed his
permanency opinion, and thus, was on notice that permanency
would be an issue at trial and that the appellee’s treating
physicians might express an opinion on the lasting nature of her
condition. Id. citing Scarlett v. Oullette, 948 So.2d 859 (Fla. 3rd DCA
2007) and Ganey v. Goodings Million Dollar Midway, Inc., 360 So.2d
62 (Fla. 1st DCA 1978).
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7. Similarly, in Ryder Truck Rental v. Perez, 715 So.2d 289
(Fla. 3rd DCA 1998), the appellate court reversed a trial court order
excluding the calling of treating physicians to testify that the
plaintiff was not permanently injured, holding that the plaintiff’s
treating physicians did not acquire their knowledge for the
purpose of litigation, but rather simply in the course of attempting
to make their patient well, and they should have been allowed to
testify. In sum, Courts regularly allow treating physicians to
opine on diagnosis, prognosis, causation and future care, as that
is exactly what treating physicians are qualified to do. Sorrells v.
Montesino, 2 So. 3d 297 (Fla. 4th DCA 2008).
8. Federal courts throughout Florida offer sound
guidance on these issues. “Because a treating physician considers
not only the plaintiff’s diagnosis and prognosis, opinions as to the
cause of injuries to not require a written report if based on the
examination and treatment of the patient. Treating physicians
commonly consider the cause of any medical condition presented
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in a patient, the diagnosis, the prognosis and the extent of
disability, if any, caused by the condition or injury.” Barratta v.
City of Largo, 2003 WL 25686843, at *2 (M.D. Fla. Mar. 18, 2003).
That is why under the Federal Rules of Civil Procedure, treating
physicians are not required to provide written reports because
they are “not retained or specifically employed to provide expert
testimony.” Bostick v. State Farm Mut. Auto Ins. Co., 2017 WL
2869967, at *2 (M.D. Fla. July 5, 2017).
9. Plaintiff’s treating surgeon testified that his opinions
were formed in the course and scope of treatment and that he
performed a differential diagnosis. Furthermore, in reviewing the
medical records, Defendants fail to mention Plaintiff’s treating
physicians reviewed records, reports, films, patient history to
perform differential diagnosis, i.e., determining causation of
Plaintiff’s injuries. Defendants make a blanket statement without
any evidence in support of. Based upon the logic advocated by the
Motion, treating physicians would be precluded from testifying
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about their most basic functions as medical professionals: the
diagnosis, cause, extent and future care of their patient’s injuries.
10. The Motion neglects to mention that Gutierrez
expressly held that “if the treating physician gives a medical
opinion formed during the course and scope of treatment in
fulfillment of their obligation as a physician, then the physician is
a fact witness, albeit a highly qualified one.” Gutierrez, 239 So. 3d
at 624. That is precisely what Plaintiff’s treating physicians have
done in this case, and what is patently reflected in the medical
records and reports documenting their care of Plaintiff. Moreover,
the medical records demonstrate the great lengths the treating
physicians went to in order to properly perform a differential
diagnosis in order to determine the exact etiology of Plaintiff’s
pain. This included, but was not limited to, physical evaluations,
review of diagnostic studies, conducting neurologic exams,
questionnaires, patient history, past history, family history,
review of symptoms and pain management on Plaintiff.
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Accordingly, because Plaintiff’s treating physicians are giving
their opinions based upon the course and scope of their treatment
of Plaintiff in their fulfillment of their obligations as physicians,
the Motion is completely without merit and should be denied and
sanctioned. Further, Defendants have refused multiple attempts
by Plaintiff to coordinate depositions of Plaintiff’s treating
physicians to obtain their opinions.
In reconsideration, Plaintiff moves this Court to deny
Defendant’s Motion in Limine that was granted based on
misrepresentation of law to the new Judge.
Certificate of Service
Under Fla. R. Gen. Prac. & Jud. Admin., Rule 2.516(b)(1), we
certify that this has been filed via the Florida Courts E-Filing Portal
today, which will send a Notice of Electronic Filing to all record parties.
/s/ Richard L. Russo______________
RICHARD L. RUSSO, ESQUIRE
FBN 1018162
MORGAN & MORGAN, P.A.
20 N. Orange Ave., Orlando, FL
11
(407) 418-2177
RRusso@forthepeople.com
Counsel for Plaintiff
12
Filing # 168029562 E-Filed 03/03/2023 05:01:58 PM
Filing # 128751833 E-Filed 06/15/2021 09:49:00 AM
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Filing # 150440056 E-Filed 05/27/2022 10:46:31 AM
Filing # 132823340 E-Filed 08/17/2021 11:38:56 AM Exhibit C
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COLTNTY, FLORIDA
MILDRED YAZQUEZ,
Plaintiff,
ABDENAGO DE JESUS GONZALEZ.
Defendant.
ORDER ON DEFENDANT'S OMNIBUS MOTION IN LIMINE. DEFENDANT'S
M L E DE F PECULATIVE FUTURE
DAMAGES, DEFENDANT'S MOTION TO COMPEL DEPQSIIION. OR IN THE
ALTERNATIVE, STRIKE PLAINTIFF'S EXPERT WITNESgANDI'I4INTIF'E]S
MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING ALCOHOL
COMSUMPTION
THIS CAUSE having come before the Court on each parties' competing Motions and the
Court having heard argument of counsel, and being otherwise advised in the Premises, it is
hereupon:
ORDERED AND ADJUDGED that
L Request # 10 within Defendant's Omnibus Motion in Limine is GRANTED in part.
Plaintiffs counsel shall not question the venire on whether their relatives or friends are employed
in the insurance industry. As to the members ofthe venire themselves, Plaintiff s counsel shall not
use the buzzword, "insurance." The remainder of Request # l0 is denied without prejudice and
objections will be addressed at the time oftrial.
2. Defendant's Motion in Limine to Exclude Evidence olSpeculative Future Damages
is GRANTED.
3. Defendant's Motion to Compel Deposition, or in the Altemative, Strike Plaintifls
Expert Witness is DENIED. Dr. Mahan is not stricken as an expert witness. Plainiiffs counsel
shall contact Dr. Mahan to determine if any potential mutually agreeable deposition dates are
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL CIVIL DIVISION
Desiree Webber,
Plaintiff,
Case No.: 2020-CA-004416
v.
Daniel Macwhorter
and USAA General Indemnity Company,
Defendants.
ORDER ON DEFENDANT’S MOTION IN LIMINE TO PREVENT TREATING
PHYSICIANS FROM TESTIFYING AS TO CAUSATION
COMES NOW, this Court, after having heard arguments from both parties on August 30,
2022, on Defendant’s Motion in Limine to Prevent Treating Physicians from Testifying as to
Causation, it is
ORDERED and ADJUDGED, that Defendant’s Motion in Limine to Prevent Treating
Physicians from Testifying as to Causation, certificate of service 06/30/22, is DENIED.
DONE AND ORDERED at Tampa, Hillsborough County, Florida, this _____ day of
______________, 2022.
Electronically Conformed 9/2/2022
Caroline Tesche Arkin
_____________________________________________
Hon. Caroline Tesche Arkin
CIRCUIT JUDGE
Copies furnished to:
Bryce Spano, Esquire
Howard Scholl, Esquire
Filing # 152623388 E-Filed 07/01/2022 04:16:10 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA
CASE NO. 2021-CA-2135
HEATHER A. ZHDANIUK, DIVISION: CV-F
Plaintiff,
DURHAM BUILDING MATERIALS, INC
and MORTIMER LOVELL DAY,
Defendants
ORDER DENYING DEFENDANTS' MOTION IN LIMINE TO LIMIT TREATING
PHYSICIAN TESTIMONY TO THE FACT OF PLAINTIFF'S TREATMENT AND
INCORPORATED MOTION TO STRIKE TREATING PHYSICIANS FROM
PLAINTIFF'S EXPERT DISCLOSURE
THIS CAUSE having come before me on Defendants' Motion in Limine to Limit
Treating Physician Testimony to the Fact of Plaintiffls Treatment and lncorporated Motion
To Strike Treating Physicians from Plaintiffs Expert Disclosure (Doc. 103), the Court
having reviewed the Motion and Opposition (Doc. 1 18), having heard oral arguments from
the parties, and the court being otherwise fully advised in the premises, it is:
ORDERED:
1. Defendants' Motion in Limine to Limit Treating Physician Testimony to Fact of
Plaintiffs Treatment is hereby DENIED;
2. Defendants' Motion to Strike Treating Physicians from Plaintiffs Expert
Disclosure is hereby DENIED;
3. The Court having reviewed the opinion in Gutierrez v. Vargas,239 So.3d 615
(Fla. 2018) as well as the other Florida case law submitted by the litigants
relating to treating physicians, agrees with and adopts the following analysis as
cAsE NO.2021-CA-2135
recently authored by Judge Virginia Norton in Division CV-D concerning the
holding in Gutienez:
11. Ultimately the Gutienez court held that the trial
court did not err in allowing all four pathologists to
testify to their expert diagnostic opinions, including the
timing of the progression of the plaintiff s disease. /d.
at 620, 629. Thus, it is apparent from the holding of
Gutienez that keating physicians are experts that can
offer expert opinions. This is consistent with long
standing case law holding that experts can opine on
issues such as permanency in personal injury actions.
Gutierrez simply does not hold that the testimony of
treating physicians should be limited to the contents of
their medical records or that treating physicians are not
allowed to give expert opinions. ld. at 620-29. lndeed,
that issue was never addressed in the opinion.
12. Gutierrez does not create a rule of evidentiary
exclusion. Nothing in Gutienez can be read to restrict
treating physicians to being mere readers of records,
nor does the decision suggest that opinions not
specifically spelled out in the medical records of
treating physicians are inadmissible.
Page 2
CASE NO.2021-CA-2135
13. To interpret Gutienez as Defendant suggests
would essentially sideline treating physicians as
testifying experts at trial. lnstead, plaintiffs would be
forced to retain medical experts to provide causation,
permanency, and future care opinions, therefore
increasing the cost of litigation.
Ricci v. Apple, 16-2O20-CA-4368, Doc. 233 (Fla. 4th Jud. Cir. May 4,2022)
DONE AND ORDERED in Duval County, Florida, this 1st day of Ju|y,2022.
HON RABLE MARIANNE L. A
CIRCUIT COURT JUDGE
Copies furnished to:
Thomas F. Slater, Esq., tom@paicic.com & Benjamin E. Richard, Esq. ben@paicic.com
Christopher D Walsh, Esq , Christopher.Walsh@csklegal.com
atrick.s cskl al. com sheri.paxton@cskleqal.com
Page 3
Filing # 142254355 E-Filed 01/19/2022 02:32:40 PM
IN THE CIRCUIT COURT
OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR BAKER COUNTY, FLORIDA
CASE NUMBER: 02-2020-CA-58-CAAM
Circuit Civil Division
BETTY PITTS and
TREVOR BROWN,
Plaintiff,
-vs-
JEANETTE NEPTUNE,
Defendant.
ORDER DENYING DEFENDANT'S TWENTIETH MOTION IN LIMINE
THIS CAUSE came before the Court on December 16, 2021, on Plaintiff's Second, Third and
Fourth Motions in Limine and Defendant's Tenth, Fourteenth, Twentieth, Twenty-First, Twenty-
Third and Twenty-Fourth Motions in Limine. The Court ruled on the majority of the Motions in
Limine, those that were not moot or withdrawn, and took under advisement Defendant's Twentieth
Motion in Limine. Each side was given the opportunity to supplement the record in support
of their respective positions on Defendant's Twentieth Motion in Limine. This Court finds:
1. On January 7, 2022, Plaintiff filed "Plaintiff Betty Pitt's Response in Opposition to Defendant's
Twentieth Motion in Limine to Exclude Opinions from Plaintiff's Treating Physicians."
2. On January 12, 2022, Plaintiff filed "Notice of Filing Additional Authority in Support of
Plaintiff's Reply to Defendant's Twentieth Motion in Limine."
3. On January 14, 2022, Defendant filed "Defendant Response in Support of Defendant's
Twentieth Motion in Limine to Exclude Opinions from Plaintiff's Treating Physicians."
4. The Court having reviewed the aforementioned supplemental materials finds that it is
appropriate to deny Defendant's Twentieth Motion in Limine, for the following reasons:
a. On June 4, 2021, this Court issued an Order Scheduling Pretrial Conference and Jury
Trial scheduled on February 7, 2022;
b. The Order Scheduling the Pretrial Conference and Jury Trial ordered Plaintiff to disclose
02-2020-CA-000058-CAAM Page 1 of 5
the names and addresses of its expert witnesses no later than August 6, 2021;
c. Non-retained experts, expected to give opinion testimony regarding standard of care,
causation, or any matter beyond the scope of a fact witness, shall be identified and disclosed no
later than sixty (60) days prior to the Pretrial Conference, originally scheduled on January 14, 2022
and rescheduled to December 16, 2021.
d. On August 6, 2021, Plaintiff filed "Plaintiff's Expert Witness Disclosure" which
included the disclosure of the "Treating Physicians/Hybrid Witnesses". Said disclosure listed four
(4)Treating Physicians/Hybrid witnesses that were "not retained experts" and two (2) retained
experts.
e. On December 7, 2022, Defendant filed "Defendant's First through Twenty-Fourth
Motions in Limine". Defendant also filed "Defendant's Amended First through Twenty-Fourth
Motions in Limine" on December 7, 2022.
f. Defendant filed its Notice of Hearing on Defendant's Tenth, Fourteenth, Twentieth,
Twenty-First, Twenty-Third and Twenty-Fourth Motions in Limine, which were scheduled to be
heard on that same day December 16, 2021, along with the Pretrial Conference.
g. Defendant's Twentieth Motion in Limine requested this Court exclude opinions from
the Plaintiff's Treating Physicians relating to records and other materials not within their possession
during course of treatment of Plaintiff without disclosing these individuals as expert witnesses. In
support of this request Defendant cited Gutierrez v. Vargas, 239 So. 3d 615 (Fla. 2018).
h. While the Gutierrez case is instructive in distinguishing treating physicians
from expert witnesses, the Defendant herein has failed to state or demonstrate the prejudice, if
any, that would occur if the Court allows the testimony of the four (4)Treating Physicians/Hybrid
witnesses. In addition, this Court finds that the Defendant has failed to exercise due diligence in
deposing the four Treating Physicians/Hybrid witnesses. The record reflects that only one (1) of the
four (4) Treating Physicians/Hybrid witnesses was deposed. This Court finds that
additional depositions may cure any perceived prejudice or concern the Defendant may have.
Finally, while it appears that Plaintiff has failed to provide adequate responses to Defendant's
Interrogatories, it appears that Defendant has not filed a motion to compel better responses.
It Is therefore ORDERED AND ADJUDGED that Defendant's Twentieth Motion in Limine
is DENIED, without prejudice.
DONE AND ORDERED on Wednesday, January 19, 2022.
02-2020-CA-000058-CAAM Page 2 of 5
02-2020-CA-000058-CAAM Page 3 of 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that copies have been furnished by U.S. Mail or via filing with the Florida
Courts E-Filing Portal on Wednesday, January 19, 2022, to the following:
Trevor G Hawes BETTY PITTS
trevor.hawes@csklegal.com 76 SOUTH LAURA STREET
kimberly.dodgen@csklegal.com SUITE 1100
tammy.lewis@csklegal.com JACKSONVILLE, FL 32202
TREVOR BROWN Brea L Dearing
76 SOUTH LAURA STREET brea.dearing@csklegal.com
SUITE 1100 Aura.DeFazio@csklegal.com
JACKSONVILLE, FL 32202
David John Azotea Trevor G. Hawes, Esquire
David_J_AZOTEA@progressive.com amanda.brandi@csklegal.com
JaxHC@progressive.com
JOE HARRISON WADE II Steven L Robbins
jwade@forthepeople.com counsel62@gmail.com
cbaxley@forthepeople.com
Elizabeth Moore Esq.
elizabeth.moore@csklegal.com
kimberly.dodgen@csklegal.com
tammy.lewis@csklegal.com
Under the Americans with Disabilities Act, if you are a person with a disability
who needs any accommodation in order to participate in a proceeding, you are
entitled to be provided with certain assistance at no cost to you. Please contact
the ADA Coordinator at (352)337-6237 at least 7 days before your scheduled
02-2020-CA-000058-CAAM Page 4 of 5
court appearance, or immediately upon receiving this notification if the time
before the scheduled appearance is less than 7 days. If you are hearing or voice
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02-2020-CA-000058-CAAM Page 5 of 5