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  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
  • ALEXANDER LLERENA, ASHEL vs. RODRIGUEZ CHAVEZ, ADRIAN AUTO NEGLIGENCE document preview
						
                                

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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]. 1 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. 1 Plaintiff can supplement many more orders on the issue if requested. Only 10 are provided for brevity. 2 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 3 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. 4 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 5 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 6 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). 7 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 8 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 9 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. 10 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                                    !"#$%#&& '(   )&)$*"$% +++++++++++++++++++++++++++,              -"'#$./01)2)&03)%-)043%"%-)"3#$.0$4$)"$*%-)043% 2)#$.&4!!5"*'#()*#$%-)63)1#()(        "$*      %-"%  )&)$*"$%7(  0%#0$  #$  #1#$)  %0  #1#%  3 "-"$7()(%#10$5#(    #$-"12)3(#$)1#$0!)04$%5 !03#*"0$   ".)0&                 !" # #  ##$  %&'(%)*)' +, - -,  ..$$/ " 01"  2 / #1" ./ #1" $ ## / #1" ".)0& 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 impaired, call 1-800-955-8770 via Florida Relay Service. 02-2020-CA-000058-CAAM Page 5 of 5