Legal Document: LUCAS, FREDDIE vs. PAEZ, JOSE LAZARO

On June 28, 380 a was filed involving a dispute between Lucas, Freddie, and Paez, Jose Lazaro, Tarmac America, Llc., for CIRCUIT CIVIL in the District Court of Osceola County.

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Filing # 148621536 E-Filed 04/28/2022 07:01:54 PM

IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA

FREDDIE LUCAS, CASE NO.: 2018-CA-000993

Plaintiff,
v.

JOSE LAZARO PAEZ and TITAN FLORIDA,
LLC f/k/a TARMAC FLORIDA, LLC
Defendants.
________________________________/

DEFENDANT TITAN FLORIDA, LLC’S EMERGENCY MOTION TO STRIKE
PLAINTIFF’S WITNESSES, EXHIBITS, AND EXPERTS; CONTINUE THE TRIAL;
OR REMOVE THE CASE FROM THE TRIAL DOCKET

COMES NOW, Defendant, TITAN FLORIDA, LLC, by and through the undersigned

counsel and pursuant to Fla.R.Civ.P. 1.460 and this Court’s Uniform Order Setting Case for Jury

Trial dated March 21, 2021, hereby files this Emergency Motion To Strike Plaintiff’s Witnesses,

Exhibits, and Experts; Continue The Trial; or Remove The Case From The Trial Docket, and

would show:

BACKGROUND

1. On or about March 23, 2021, the Court entered a Uniform Order Setting Case for

Jury Trial; Pre-Trial Conference and Requiring Pretrial Matters to Be Completed (the “Trial

Order”), scheduling this matter for a five-day jury trial during the three (3) week trial docket

commencing Monday, May 9, 2022, with a Pre- Trial Conference scheduled for March 30, 2022,

at 9:00 a.m. See attached Exhibit A.

2. Plaintiff failed to appear for his properly coordinated and noticed updated

deposition on March 18, 2022. See the Certificate of Non-Appearance, attached as Exhibit B.

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4. Thereafter, the parties attended the Pre-Trial conference and represented to the

Court that both parties agreed the matter was no ready for trial. The Court denied the Unopposed

Motion to Continue the Trial and informed the parties that they could remove the case from the

trial docket and re-notice it for trial if the case was not ready. Plaintiff’s counsel declined to do

so. The Court also modified the Discovery Cut-Off Deadline to give the parties until May 2, 2022,

to complete depositions for the May 9, 2022 trial.

Plaintiff’s Witnesses, Exhibits, And Experts Should Be Stricken Due To Plaintiff’s Failure
To Comply With Deadlines Specified In Sections 5, 6, And 9 Of The Trial Order

5. Plaintiff has failed to comply with any of the deadlines specified in section 5

(Disclosure of Witnesses and Exhibits for Trial), section 6 (Meeting of Attorneys), and section 9

(Disclosure of Experts Intended to Be Called at Trial).

6. Section 5 of the Trial Order required Plaintiff to produce to Defendants a list of all

witnesses and exhibits plaintiff may use at trial, “No later than forty-five (45) days before the

pre-trial conference.” (emphasis in original.) Thus, the due date for Plaintiff to produce its

witness and exhibit lists was Friday, February 11, 2022. Plaintiff did not produce said lists until

after the Pre-Trial conference, 48 days past the Trial Order deadline. See attached Exhibit D.

The witness list contains names of 45 persons, only 7 of whom were previously deposed.

7. Section 9 of the Trial Order required Plaintiff to produce to Defendants a list of all

experts (including treating physicians) that in good faith Plaintiff actually intends to call at trial,

“No later than 90 days before the pre-trial conference.” (emphasis in original.) Thus, the due

date for Plaintiff to produce its expert witness list was Thursday, December 30, 2022. Plaintiff did

not produce said lists until after the Pre-Trial conference, 91 days past the Trial Order deadline.

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Plaintiff’s expert witness list contains names of 40 experts, only 2 of whom were previously

deposed. See attached Exhibit E.

8. Plaintiff did not produce the final report of its retained expert, Robert Tremp, until

April 21, 2022, just 18 days before trial, 69 days past the deadline for exhibit disclosure. See

attached Exhibit F.

9. Due to the brief time between the pre-trial conference and May 9, 2022 trial date,

only 1 of the 38 un-deposed Plaintiff experts could be scheduled for deposition by the new May 2,

2022 deadline – Robert Tremp, who is scheduled for May 2, 2022.

10. Furthermore, pursuant to Section 6 of the Trial Order, “Plaintiffs attorney . . . shall

arrange a mutually agreeable time, date and place for this meeting [of attorneys].” The meeting of

attorneys was supposed to be held “No later than ten (10) working days prior to the pre-trial

conference.” As of today, we are only eleven (11) days from the trial date and no effort has been

made by Plaintiff’s counsel to schedule such a meeting or produce the exhibits or demonstrative

aids Plaintiff intends to use at trial for Defendants’ review.

11. Pursuant to Section 14 of the Trial Order,

Unexcused failure of counsel, or unrepresented party, to attend the
meeting of attorneys, required in paragraph 6 (a), the pre-trial
conference, or trial, or to comply with the requirements of this
order, will subject offending counsel or party to appropriate
sanctions, which may include contempt, dismissal, default, striking
of pleadings, exclusion of evidence, assessment fees or costs, and/or
other sanctions.
(emphasis added). Accordingly, Plaintiff’s witnesses, exhibits, and experts should be excluded

from evidence due to Plaintiff’s gross failure to comply with any of the deadlines specified in the

Trial Order. Alternatively, the Court may find it more efficient to strike Plaintiff’s pleadings as

there would be no evidence to support the claims if all of the witnesses, exhibits, and experts are

stricken.

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Alternatively, The Case Should Be Removed From the Trial Docket or Continued for a
Minimum of Nine Months To Complete Discovery Arising From New Plaintiff Disclosures

12. In addition to discovery necessitated by Plaintiff’s witness, exhibit, and expert

disclosures for trial, additional discovery is necessitated by Plaintiff’s testimony, which will

require both written discovery and more depositions than are necessitated by the trial disclosures.

13. Plaintiff failed to appear for his properly noticed and coordinated updated

deposition on March 18, 2022. See Exhibit B.

14. At the Pre-trial Conference, the Court extended the cut-off date for conducting

depositions to May 2, 2022. Accordingly, Plaintiff’s updated deposition was set for April 19,

2022.

15. Plaintiff’s counsel, Dan Morgan, Esq., did not attend the deposition. Jonathan

Thomson, Esq. covered the deposition for Mr. Morgan. However, the updated deposition could

not be completed due to pre-existing commitments Mr. Thomson had. Mr. Thomson represented

that he had three hearings that afternoon, so the updated deposition had to be continued to a later

date and remains incomplete.

16. During the portion of Plaintiff’s updated deposition was completed, Plaintiff

testified to a number of facts that were significantly different from his initial deposition and

testified to a number of events that require written discovery follow-up and additional depositions:

a. Plaintiff testified about details of a head-on motor vehicle collision that
occurred in June 2019, which will require follow-up from insurers, medical
professionals, authorities, and witnesses from the scene as this information is
critical to alternate causation defenses. The subject of this claims in this case
are injuries arising from a low-speed impact that occurred in 2017.

b. Plaintiff described a separate incident that occurred in March 2019 that required
a hospitalization and follow-up with providers not appearing on any previous
disclosure from Plaintiff. Plaintiff testified that the incident occurred as a result
of his attempting to self-treat pain allegedly from the subject 2017 auto
accident. This incident requires written discovery from the newly disclosed
providers (Baycare – Winter Haven Hospital, 200 Ave F NE, Winter Haven,
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FL 33881 and adjunct facilities) and additional depositions of both witnesses
and treating providers.

c. Regarding the March 2019 incident, Plaintiff refused to specifically identify
and adult witness to the incident while admitting the witness was present. The
deposition question was certified and will be the subject of a Motion to Compel
once the transcript is received.

d. Plaintiff identified two additional construction/site development employers he
has worked for since his original deposition, and testified that he worked 50-55
hrs/week at the latter. These are additional sources which will require
additional written and deposition discovery to determine Plaintiff’s limitations
and abilities before and after the aforementioned incidents in 2019, which are
central to Defendants’ extra causation defenses.

e. At Plaintiff’s original deposition, he was working for a construction company
and was able to perform activities of daily living. At the updated deposition,
Plaintiff claimed that he has not worked in about two and a half years due to his
infirmities. He further claims that he cannot perform activities of daily living,
household chores, or care for his child who was born in 2020. Thus, he claimed
that his live-in fiancé cannot work as she has to care for the infant. Plaintiff
further testified that he can no longer hunt or perform physical recreation
activities he used to do and that the inability to work, perform activities of daily
living, and recreational activities has caused anxiety and depression. Plaintiff
further claimed that the medication for the anxiety and depression prevents him
from driving an automobile and claimed he hasn’t driven in a couple of years.
Plaintiff’s updated life care plan (disclosed on 4/21/2022) includes $262,000
for future mental health care and $216,000 for homemaker services, for a total
of $478,000 in additional claimed damages. Plaintiff’s testimony at his updated
deposition is a drastic change from his original testimony that necessitates
additional discovery and depositions.

f. At his updated deposition, Plaintiff testified that after he discontinued working
for Cathcart Construction, toward the end of 2019, he applied for social security
disability and was denied. He further testified that he is in the process of
applying again, since he now claims he is unable to work. Defendants sought
records from the Social Security Administration at the outset of the case, and
received a response in March, 2019. However, this would not include either of
these latest applications. Thus, additional written discovery is needed to
determine the basis of Plaintiff’s alleged disability, which Defendants could not
have previously known about as Plaintiff was healthy, well, and working
construction at the time of his initial deposition.

g. At his updated deposition, Plaintiff testified that his thoracic spine is
debilitating to the point that it prevents him from lifting anything other than the
lightest objects with his right arm. This is the reason he says he cannot perform

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activities of daily living or care for his children. Plaintiff claimed that he just
began seeing Dr. Amir Ansari, D.O. for this condition two to three weeks before
his updated deposition on April 19, 2020. Dr. Ansari was first disclosed on
Plaintiff’s untimely file expert witness on March 31, 2022, which does not
provide Defendants sufficient time to conduct both written and deposition
discovery for what Plaintiff now claims is his debilitating back condition.
Notably, Plaintiff had seen four or more neurosurgeons prior to Dr. Ansari, none
of whom noted significant thoracic back pain. The first neurosurgeon treated
Plaintiff for lumbar pain and concluded treatment on September 1, 2017. The
next three saw Plaintiff for cervical pain following his head-on collision in
2019, with one eventually performing a cervical surgery. Thus, Dr. Ansari is
anticipated to be Plaintiff’s primary expert witness regarding Plaintiff’s current
claims of debilitating spinal injury.

h. At his updated deposition, Plaintiff testified that he has neuropathy in his hands
from Diabetes, has previously been told he has lack of renal function, and
testified that he believed the Diabetes was beginning to affect his eyesight. This
was not the case during Plaintiff’s initial deposition when he was actively
working construction, and Defendants had no way of knowing Plaintiff was
now claiming to be disabled until he appeared for his updated deposition.
Plaintiff could not identify his endocrinologist, while admitting that he has one
and claiming that he recently changed doctors. This too will require additional
written and deposition discovery.

17. The details provided in the previous paragraph and subparagraphs are not intended

to be an exhaustive list of all the additional discovery necessitated by the portion of Plaintiff’s

updated deposition that was conducted on April 19, 2022. Defendants have not received the

transcript from said deposition, but would note that there was insufficient time on April 19, 2022

to ask Plaintiff about any events or care he has received in the last two years due to the deposition

ending prematurely as a result of prior commitments Plaintiff’s counsel had.

18. Due to Plaintiff’s drastic change in circumstances, claims, and conditions testified

to by Plaintiff on the eve of trial and Plaintiff’s untimely witness, exhibit, and expert lists, it will

take at least nine months to conduct and obtain all necessary written discovery, follow-up

discovery, and depositions of dozens of witnesses.

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19. As a result, Defendant is not ready for trial, as currently set. Allowing trial to move

forward without Defendant having an opportunity to depose all of Plaintiff’s disclosed witnesses,

experts, review recent diagnostics and treatments records for Plaintiff, view Plaintiff’s exhibits

and demonstrative aids, and obtain rebuttal witnesses and experts relevant to the issues set forth in

this lawsuit, or any other individuals that may be disclosed during the continued updated deposition

of Plaintiff, depositions of fact witnesses, and depositions of Plaintiff’s experts, will affect the

Defendant’s ability to properly prepare this matter for trial, and thereby deprives Defendant of a

fair trial.

20. The Court should consider the following factors when determining whether to grant

a trial continuance: “whether the denial of the continuance creates an injustice for the movant;

whether the cause of the request for continuance was unforeseeable by the movant and not the

result of dilatory practices; and whether the opposing party would suffer any prejudice or

inconvenience as a result of a continuance.” A.P.D. Holdings, Inc. v. Reidel, 865 So. 2d 682, 683-

684 (Fla. 4th DCA 2004); citing Fleming v. Fleming, 710 So. 2d 601 (Fla. 4th DCA 1998).

21. The decision whether to grant or deny a motion for continuance is generally left to

the broad discretion of the trial court. However, that discretion is not unlimited. Although trial

courts are endowed with rather broad discretion in deciding whether to grant or deny a motion for

continuance, the exercise of that discretion is not absolute. Certain factors should be considered in

making the determination of continuing trial, including: (1) whether the movant suffers injustice

from the denial of the motion; (2) whether the underlying cause for the motion was unforeseen by

the movant and whether the motion is based on dilatory tactics; and (3) whether prejudice and

injustice will befall the opposing party if the motion is granted. Baron v. Baron, 941 So. 2d 1233,

1234 (Fla. Dist. Ct. App. 2d Dist. 2006). (Emphasis added).

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22. Pursuant to Fla.R.Civ.P. 1.460, “[a] motion for continuance shall be in writing

unless made at a trial and, except for good cause shown, shall be signed by the party requesting

the continuance. The motion shall state all of the facts that the movant contends entitle the movant

to a continuance.” Defendant has complied with Fla.R.Civ.P. 1.460.

23. In this case, Defendant will suffer grave injustice if Plaintiff is allowed to change

his claims, untimely disclose his witnesses, exhibits, and experts, and conduct trial by surprise.

All of these matters were unforeseen by Defendant and could not have been foreseen prior to the

Pre-trial conference because Plaintiff failed to appear for his March 18, 2022 deposition. Given

the difficulties presented by scheduling of depositions, the Defendant respectfully requests a

continuance for a reasonable amount of time, not less than nine (9) months, to address the

numerous pre-trial issues that remain outstanding.

24. This Motion is not made for the purposes of delay, and justice requires that the

Defendant be given additional time to conduct the necessary depositions, conduct the necessary

additional discovery that may be warranted, and otherwise make reasonable arrangements for the

trial of this case.

25. The Defendant has shown good cause in requesting a trial continuance.

26. Defendant’s executed Consent for Trial Continuance was previously submitted

with the prior Unopposed Motion for Trial Continuance, which the Court denied at the Pre-trial

conference.

WHEREFORE, Defendant TITAN FLORIDA, LLC, by and through the undersigned

counsel, respectfully requests that this Honorable Court enter an Order Striking Plaintiff’s

Witnesses, Exhibits, and Experts; Striking Plaintiff’s Pleadings and other appropriate sanctions for

gross, unexcused failure to comply with the Trial Order; or, alternatively Removing The Case

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From The Trial Docket or Continuing The Trial for no less than nine (9) months, and any other

relief this Court deems just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via

ECF to: Daniel J. Morgan, Esquire, Morgan & Morgan, P.A., 20 N. Orange Avenue, Suite 1600,

Orlando, Florida 32801, (dmorgan@forthepeople.com, vvazquez@forthepeople.com), Counsel

for Plaintiff, this 28th day of April, 2022.

_____________________________________
R. DAVID McLAUGHLIN, ESQUIRE
FBN: 0029232
MICHAEL W. LeROY, ESQUIRE
FBN: 0990353
FULMER LeROY & ALBEE, PLLC
910 North Ferncreek Avenue
Orlando, Florida 32803
Primary: Pleadings@FulmerLeRoy.com
Telephone: (407) 264-7070
Counsel for Defendants

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Filing # 123567842 E-Filed 03/23/2021 09:45:50 AM
Exhibit A
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA

CASE NO. 2018-CA-993
DIVISION 22

FREDDIE LUCAS,

Plaintiff,

Vs.

JOSE LAZARO PAEZ &
TARMAC Al\1ERICA, LLC.,

Defendant
- - - - - - - - - - - - - - - -I
UNIFORM ORDER SETTING CASE FOR JURY TRIAL;
PRE-TRIAL CONFERENCE AND REQUIRING PRE-TRIAL
MATTERS TO BE COMPLETED

It is appearing that this case is at issue and can be set for trial, it is ORDERED as follows:

1. FAMILIARITY WITH THIS ORDER. Counsel and prose (unrepresented) parties shall
read this order, be familiar with its contents and comply with its requirements.

TRIAL DATE. This case is set for jury trial during the three-week trial period beginning
2.
May 9, 2022 at 9:00 a.m., in COURTROOM SC, OSCEOLA COUNTY
COURTHOUSE, 2 COURTHOUSE SQUARE, KISSIMMEE, FLORIDA.

Length of time currently estimated for trial is Five (5) Day(s).

3. PRE-TRIAL CONFERENCE. Counsel who will try the case and prose parties shall attend
a pre-trial/scheduling conference on March 30, 2022 at 9:45 a.m., in Courtroom SC

4. REFERRAL TO MEDIATION; DEADLINE.

(a) This case is hereby, referred to mediation. The parties will agree upon a mediator and a
date for the first mediation conference. Counsel for plaintiff will submit a proposed mediation order.

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(b} MEDIATION SHALL BE COMPLETED PRIOR TO THE PRE-TRIAL
CONFERENCE.
(c) Any party may move to defer or dispense with mediation upon good cause shown.

5. EXCHANGE OF WITNESS LISTS AND EVIDENCE SCHEDULES. No later than
forty-five (45) days before the pre-trial conference, attorneys and pro se parties shall serve upon each
other (but not file) the following:

(a) LIST OF ALL WITNESSES (including known impeachment and rebuttal witnesses)
which the party might call at trial. The list shall contain the name, address, and telephone number of the
witness and whether the witness is a liability or damage witness. Additionally, expert witnesses shall be
designated as such.

(b) SCHEDULE OF ALL EXHIBITS, which a party may offer at trial numbered
sequentially. The schedules will include all depositions to be offered in evidence at trial. Parties must list
exhibits with specificity. For example, listing "all medical records" is insufficient.

6. REQUIREMENTS PRIOR TO PRETRIAL CONFERENCE.

(a) MEETING OF ATTORNEYS, AND PRO SE PARTIES. No later than ten (10)
working days prior to the pre-trial conference, counsel who will try the case, and pro se parties, if any,
shall meet together. Attendance at this meeting is mandatory. Plaintiffs attorney (or if plaintiff is prose,
defendant's attorney) shall arrange a mutually agreeable time, date and place for this meeting.

At the meeting the attorneys, and pro se parties shall:

1. Discuss and attempt to settle the case.

2. Produce, examine and initial on back every evidentiary exhibit intended to be offered
at trial; agree on those which can be admitted as joint exhibits, those which can be admitted without
objection, and identify those to which objection will be made and the grounds of each objection, and note
this on a separate copy of each party's exhibit schedule. Objections not reserved or grounds not noted on
such separate schedule will be deemed waived at trial. The annotated separate copies of the schedules will
be attached to and made a part of the joint pretrial statement required in paragraph 6 (b) of this order.

3. Video Depositions-The Court strongly encourages parties to designate/disclose as soon
as possible, what portions of depositions they intend to use at trial. Upon Motion and Notice by either
party, the Court can rule on any objections before trial. Deposition objections are not waived unless in
writing. Editing video during trial can be difficult, time consuming and costly. Delays in seeking a ruling
by the Court on objections may result in exclusion of video and require reading of deposition transcript at
trial.

4. Review the witness lists, and in good faith, note on a separate copy which witnesses and
depositions will actually be used at trial. The annotated separate copies of the witness list will be attached
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to the joint pretrial statement required in paragraph 6 (b) of this order.

5. Discuss and stipulate as to those facts, which will require no proof at trial.

6. Discuss, clarify and frame all factual issues of fact to be tried.

7. Identify all issues of law, procedure, or evidence to be decided by the Court prior to or
during trial.

8. Agree upon and draft a concise but complete statement of the case to be read by the
Judge at the beginning of voir dire.

9. Discuss the proposed jury instructions (preliminary through closing) and verdict forms.
Discuss whether you want the Court to instruct the jury on the law at the beginning of the case and before
final arguments. For Standard Jury Instructions- Civil Cases go to www.floridasupremecourt.org.

10. Attempt to agree upon the number of peremptory challenges.

11. Discuss and attempt to agree upon any other matters which will lead to a more orderly
and expeditious trial, e.g., copies in lieu of originals, witnesses out of turn, which portions and how
depositions will be presented, how collateral set-off will be handled, etc.

12. Demonstrative Aids - Parties are strongly encouraged to exchange Demonstrative Aids
(including presentation boards; models; picture video/computer presentations; reenactments and
animations) in advance of trial, in the event an objection sustained, and modifications are required.

(b) JOINT PRE-TRIAL STATEMENT. Following the meeting of attorneys, plaintiffs
attorney (or defendant's attorney, if plaintiff is prose) shall prepare and present to opposing counsel and
pro se parties a proposed joint written pre-trial statement. The statement shall be signed by all
attorneys and pro se parties, and the original and one copy delivered to the judge, no later than the pre-
trial conference. To the extent the parties differ as to how portions of the statement should read, the
differing views should be set forth in the statement.

The pre-trial statement will contain the following items in the following format:

1. A statement of the case, to be read to the jury, at the beginning ofvoir dire.

2. A statement of facts, which are admitted, and may be read in evidence at trial, as a
stipulation of counsel.

3. Issues of fact to be tried (framed as they would be set forth in an interrogatory verdict).

4. Issues of law, procedure, or evidence to be determined by the Court prior to, or during
trial.

5. The annotated copy of each party's witness list will be attached.
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6. The annotated copy of each party's schedule of exhibits, showing objections and grounds
will be attached.

7. The number of peremptory challenges agreed upon or requested.

8. A current estimate of the number of days required for trial.

9. A specification of the damages claimed by each party.

10. Announcement of the name of the particular member or associate who will try the case.
No change of such designated trial counsel shall be made without leave of the Court, if such change will
interfere with the trial schedule.

11. List of all outstanding motion(s) and date/time of the hearing(s) or statement whether each
motion( s) is/are waived/withdrawn/moot.

12. Any other matters agreed to by counsel or which need to be addressed by the Court at
pre-trial conference.

7. DISCOVERY CUT-OFF DEADLINE. All discovery shall close on the day prior to the pre-
trial conference unless extended by Court order for good cause shown. This means all depositions and
CME's with reports will be completed, and answers to interrogatories, responses to request to produce and
requests for admissions of fact will be due before the closure date. Joint Stipulations without Court order
are not sufficient to modify the discovery cut-off deadlines.

8. MOTIONS CUT-OFF DEADLINE.

(a) All motions for summary judgment or judgment on the pleadings and all hearings, related
to discovery, must be filed and scheduled for hearing, to be held, prior to the pretrial conference date.

(b) All motions in limine, or to exclude witnesses or evidence or other motions directed to the
conduct of the trial for which grounds then exist must be filed, and copies delivered to opposing counsel
prior to the pre-trial conference. Motions in Limine, may not be scheduled for a hearing unless they
contain a certification of good faith attempt to resolve matter without Court action. Notice of Hearings on
Motions in Limine must specifically identify the specific issues, which remain in controversy after counsel
has conferred. Motions in Limine must be scheduled and heard no later than one week prior to the
beginning of the trial period. No Motions in Limine will be heard during the trial period, absent good
cause being shown.

9. EXPERT WITNESSES; DISCLOSURE; DEADLINES; TESTS EXAMINATIONS AND
EXPERIMENTS; LIMITATION ON NUMBER AT TRIAL.

(a)No later than 90 days before the date of the pre-trial conference, plaintiff(s) shall
disclose all expert witnesses (including treating physicians) that in good faith plaintiff(s)
actually intends to call at trial.
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(b) No later than 75 days before the date of the pre-trial conference, defendant(s) shall
disclose all expert witnesses that in good faith defendant(s) actually intends to call at trial.

(c) As used herein, "disclose" means furnishing in writing (i) the expert's name, business
address and telephone number, (ii) his or her curriculum vitae or qualifications, (iii) his or her medical
specialty or field of expertise, (iv) a statement of the specific subjects upon which the expert will testify and
offer opinions and (v) the party or parties against whom the expert will be called to testify.

(d) Any additional experts, will only be permitted to be listed, upon stipulation or leave of court
for good cause shown.

(e) Immediately following disclosure, the parties will confer and agree upon a schedule for
taking the experts' depositions. Experts will be made available, for deposition by the party retaining them,
without necessity of subpoena.

(t) The depositions, of all experts, must be completed prior to the pre-trial conference.

(g) All out-of-court testing, experiments or physical or mental examinations will be completed
by an expert prior to the expert's deposition unless leave of Court is obtained for completion after
deposition.

(h) The parties may supersede sub-paragraph (a) through (g) by filing written stipulation or
move the Court to modify it upon good cause shown.

(i) The Court may limit the number of experts at trial.

10. TRIAL BRIEFS. Trial briefs are optional, but if one is to be filed, the original should be filed
and chambers copy delivered not later than five (5) working days before trial is to commence. Highlighted
copies of primary legal authorities cited must accompany the chambers copy and opposing party's copy.

11. NOTIFICATION OF SETTLEMENT. The parties will notify the Judge's Judicial
Assistant immediately by emaiVtelephone upon the case being settled, and fax/email a Notice of
Settlement signed by both parties prior to the Trial being removed from the docket.

12. JURY INSTRUCTIONS. Unless otherwise directed by the Judge, the parties will exchange
proposed jury instructions and verdict forms no later than three (3) working days before the Pre-Trial
Conference. At the Pre-Trial Conference, plaintiffs' counsel will hand to the judge a set of those
instructions (and verdict forms) and identify any in dispute. This set shall include the Supreme Court Jury
Instruction numbers. The final set for the jury will have the style of the case; heading stating "Jury
Instructions" and the instructions will follow in paragraph form without Jury Instruction numbers, headers
or brackets. Pages shall be numbered.

13. MODIFICATION OF ORDER FOR GOOD CAUSE. The provisions of this order,
including any time limits, and the joint pre-trial statement, witness lists, and evidence schedules, attached
Page 5 of7
to it, may be modified, by Court, order based upon motion showing good cause.

14. SANCTIONS. Unexcused failure of counsel, or unrepresented party, to attend the meeting of
attorneys, required in paragraph 6 (a), the pre-trial conference, or trial, or to comply with the requirements
ofthis order, will subject offending counsel or party to appropriate sanctions, which may include contempt,
dismissal, default, striking of pleadings, exclusion of evidence, assessment fees or costs, and/or other
sanctions.

15. SUMMARY OF DEADLINES. For scheduling purpose only, see attached Summary of
Deadlines.

DONE AND ORDERED in Kissimmee, Florida this'23 day of ~cL , 202 1.

ROBERTJ. EG
Circuit Judge
Division 22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing, has been fi led, via the Florida Courts E-
Filing Portal, which will send a Notice of Electronic Fi ling to the parties listed. The Court further Orders
the Moving Party, and if no Moving Party, the Plaintiff, to IMMEDIATELY serve a true and correct copy
of this Order to all parties/Counsel(s) of record, for whom service is not included in the E-filing Portal,
and fi le such proof of service with the Clerk of the Court. \./1 \
----'-~- M
- ~~ -- - -
1udicia1 Assistant

If you are a person with a disability who needs any accommodation in order to
participate in this proceeding, you are entitled, at no cost to you, to the provision of
certain assistance. Please contact the ADA Coordinator, Court Administration,
Osceola County Courthouse, 2 Courthouse Square, Suite 6300, Kissimmee, Florida
34741, (407) 742-2417, at least 7 days before your scheduled 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 711.

Page 6 of7
SUMMARY OF DEADLINES

Mediation shall be completed prior Pre-Trial Conference. (§4b)

Plaintiffs Expert Witness list due 90 days prior to Pre-Trial Conference. (§9a)

Defendant's Expert Witness list due 75 days prior to Pre-Trial Conference. (§9b)

Exchange of Witness Lists and Evidence Schedules - 45 days before date of
Pre-Trial Conference. ( §5)

Meeting of Attorneys 10 days prior to Pre-Trial Conference. (§6a)

Motions for Summary Judgment and hearings related to discovery filed and
heard, prior to Pre-Trial Conference. (§8a)

Motions in Limine must be filed prior to Pre-Trial Conference. (§8b)
Must be heard no later than 7 days prior to first day of trial period. (§8b)

Hearings related to discovery or trial matters filed and heard prior to the
Pre-Trial Conference. (§8b)

Jury InstructionsNerdict forms exchanged no later than 3 days prior to the
Pre-Trial Conference. The Plaintiff to present instructions to the Judge at the
Pre-Trial Conference and identify any in dispute. (§12)

Joint Pre-Trial Statement signed by attorneys/pro se parties due no later than
Pre-Trial Conference. ( §6b)

Discovery Cut-Off 1 day prior to Pre-Trial Conference. (§7)

Trial briefs (optional) due 5 working days prior to Trial. (§10)

Page 7 of7
Exhibit B

PHIPPS, REPORTING
Raising the Bar!
· IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
· · · · · IN AND FOR OSCEOLA COUNTY, FLORIDA
· · · · · · · ·CASE NO. 2018-CA-000993

FREDDIE LUCAS,

· · · ·Plaintiff,
vs.

JOSE LAZARO PAEZ and TITAN FLORIDA,
LLC f/k/a TARMAC FLORIDA, LLC,

· · · ·Defendants.
_________________________________/

· · · · · · ·CERTIFICATE OF NONAPPEARANCE

· · · · · · · · · · FREDDIE LUCAS

· · · · · · · · · · March 18, 2022
· · · · · · · · 11:00 a.m. - 11:30 a.m.

· · · · · Phipps Reporting - Park Hill Place
· · · · · · ·830 North John Young Parkway
· · · · · · · Kissimmee, Florida· 34741

· · · · · · ·Stenographically Reported By
· · · · · · TOSHA S. SEANEY, RPR, CCR, GRL

JOB NO. 237918
Page 2
·1· · · · · · · · CERTIFICATE OF NONAPPEARANCE

·2
· · ·APPEARANCES:
·3
· · ·On Behalf of the Plaintiff:
·4
· · · · MORGAN & MORGAN, P.A.
·5· · · 20 North Orange Avenue
· · · · Floor 16
·6· · · Orlando, Florida· 32801-4624
· · · · BY: DANIEL J. MORGAN, ESQUIRE
·7· · · dmorgan@forthepeople.com

·8· ·On Behalf of the Defendants:

·9· · · FULMER, LEROY, ALBEE
· · · · 910 North Ferncreek Avenue
10· · · Orlando, Florida· 32803
· · · · (407) 264-7070
11· · · BY: R. DAVID MCLAUGHLIN, ESQUIRE
· · · · dmclaughlin@fulmerleroy.com
12

13· ·ALSO PRESENT:

14· · · AUSTIN SANCHEZ, Videographer

25
Page 3
·1· · ·IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
· · · · · · · · · ·IN AND FOR OSCEOLA, FLORIDA
·2· · · · · · · · · CASE NO. 2018-CA-000993

·3· ·FREDDIE LUCAS,

·4· · · · · Plaintiff,
· · ·vs.
·5
· · ·JOSE LAZARO PAEZ and TITAN FLORIDA,
·6· ·LLC f/k/a TARMAC FLORIDA, LLC,

·7
· · · · · · Defendants.
·8· ·_________________________________/

·9

10
· · · · · · · · · CERTIFICATE OF NONAPPEARANCE
11
· · · · Witness:· · ·Freddie Lucas
12· · · Date:· · · · March 18, 2022
· · · · Time:· · · · 11:00 a.m. - 11:30 a.m.
13· · · Place:· · · ·Phipps Reporting - Park Hill Place
· · · · · · · · · · ·830 North John Young Parkway
14· · · · · · · · · ·Kissimmee, Florida· 34741

16· ·STATE OF FLORIDA· · ·)

17· ·COUNTY OF OSCEOLA· · )

18· · · · · I, TOSHA SEANEY, do hereby certify that I was
· · ·present for the purpose of reporting these
19· ·proceedings, and that the deponent did not appear.

20· · · · · Under penalties of perjury, I declare that I
· · ·have read the foregoing certificate and that the facts

~ ~
21· ·stated in it are true.

22· · · · · · · · · ·____________________________________
· · · · · · · · · · ·TOSHA S. SEANEY, RPR, CCR, GRL
23· · · · · · · · · ·Phipps Reporting
· · · · · · · · · · ·1551 Forum Place, Bldg. 200, Suite E
24· · · · · · · · · ·West Palm Beach, Florida 33401
· · · · · · · · · · ·(888) 811.3408
25
Filing # 146680482 E-Filed 03/30/2022 09:16:33 AM
Exhibit C
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA

FREDDIE LUCAS, CASE NO.: 2018-CA-000993

Plaintiff,
v.

JOSE LAZARO PAEZ and TITAN FLORIDA,
LLC f/k/a TARMAC FLORIDA, LLC

Defendants.
________________________________/

DEFENDANTS’
UNOPPOSED MOTION FOR TRIAL CONTINUANCE

Defendants JOSE LAZARO PAEZ and TITAN FLORIDA, LLC, by and through the

undersigned counsel, herby assert this Unopposed Motion for Trial Continuance, requesting that

this Honorable Court continue the trial of this matter so that additional Pre-Trial Discovery may

be completed, meaningful mediation may be completed, and all additional pre-trial requirements

may be satisfied, and as grounds state therefore state:

1. On or about March 23, 2021, the Court entered a Uniform Order Setting Case for Jury

Trial; Pre-Trial Conference and Requiring Pretrial Matters to Be Completed (the “Trial

Order”), scheduling this matter for a five-day jury trial during the three (3) week trial

docket commencing Monday, May 9, 2022, with a Pre- Trial Conference scheduled for

March 30, 2022, at 9:00 a.m.

2. The parties have been diligent in conducting discovery, attempting to coordinate and

obtain all necessary Pre-Trial Depositions, filing dispositive motions, conducting

mediation, and in preparing satisfying additional pre-trial requirements ordered by to this

Honorable Court.
3. Defendants had scheduled an updated deposition of Plaintiff Freddie Lucas to occur on

March 18, 2022. Mr. Lucas’s counsel appeared for the deposition, but Mr. Lucas did not.

This was the first scheduled deposition of Mr. Lucas since October 26, 2018. Since that

date, Mr. Lucas has been in a head-on motor vehicle collision and had back surgery,

which he claims resulted from the incident in the present action rather than the

intervening motor vehicle accident. Defendants would be severely prejudiced by

Plaintiff’s non-appearance at his scheduled deposition.

4. On or about December 15, 2021, the parties attempted to have mediation, but could not

have a meaningful mediation as Defendant Titan America’s Risk Manager had recently

left the company for another job opportunity. Defendant Titan America now has a new

Risk Manager who commenced employment on or about March 1, 2022. The parties

mutually agree that it would be beneficial to conduct a meaningful mediation and

potentially save valuable court resources.

5. The Trial Order provides deadlines for filing of witness and exhibit lists, exchanging

exhibits, pre-trial meeting of counsel to discuss exhibits, jury instructions, etc., none of

which have been completed to date. In addition, the parties still have outstanding

discovery due to Plaintiff’s back surgery, follow-up on discovery received pertaining

thereto, retention of experts, and need for updated discovery before trial.

6. In addition, defense counsel has a potential trial conflict with Joseph Mulligan v. Titan

Florida, LLC, and Donald, Zuhr, Case No. 2019-CA-002695-08-L, (18th Jud. Circuit in

and for Seminole County, Florida), which is scheduled to occur during that court’s trial

docket beginning May 9, 2022.
7. A meet and confer telephone conference occurred on March 18, 2022, between R. David

McLaughlin, Esquire, counsel for Defendant Fitness International, LLC d/b/a LA Fitness,

Dan Morgan, Esq., counsel for Plaintiff concerning the need for trial continuance, and

Plaintiff’s counsel agreed to continue the trial in this matter.

8. Defendants’ would request a four to six month continuance.

WHEREFORE, Defendants JOSE LAZARO PAEZ and TITAN FLORIDA, LLC, by and

through the undersigned counsel, respectfully request that this Honorable Court enter an Order

granting the Defendant’s Unopposed Motion for Trial Continuance, continue the trial to

sometime between September and November, 2022 or as soon thereafter as the Court has

available, and any other relief this Court deems just and proper.

_________________________________
R. DAVID McLAUGHLIN, ESQUIRE
FBN: 0029232
MICHAEL W. LeROY, ESQUIRE
FBN: 0990353
Fulmer LeRoy & Albee, PLLC
910 North Ferncreek Avenue
Orlando, Florida 32803
Telephone: 407-264-7070
Pleadings@FulmerLeRoy.com
Counsel for Defendants

CERTIFICATE OF COMPLIANCE

I hereby certify that the meet and confer telephone conference occurred on March 18, 2022, between

R. David McLaughlin, Esquire, counsel for Defendants and Dan Morgan, Esq., counsel for Plaintff to

discuss the continuance of the trial in this matter and the reasons therefor. All parties agreed to a

continuance.
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via ECF to:

Daniel J. Morgan, Esquire, Morgan & Morgan, P.A., 20 N. Orange Avenue, Suite 1600, Orlando,

Florida 32801, (dmorgan@forthepeople.com, vvazquez@forthepeople.com), Counsel for Plaintiff, this

30th day of March, 2022.

Exhibit D
7761825
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA

CASE NO: 2018 CA 000993 AN
FREDDIE LUCAS,

Plaintiff,
vs.

JOSE LAZARO PAEZ and TITAN
FLORIDA, LLC f/k/a TARMAC
FLORIDA, LLC.,

Defendants. /

PLAINTIFF'S WITNESS LISTS AND EVIDENCE SCHEDULE

COME NOW the Plaintiffs, FREDDIE LUCAS, by and through their undersigned

counsel and in compliance with this Honorable Court’s Order, provides the following List of

Trial Witnesses and Evidence Schedule of Trial Exhibits:

WITNESSES

1. Freddie Lucas i Liability/Damages
c/o Daniel J. Morgan, Esquire

Case Info

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MURPHY, MICHAEL Track Judge’s New Case

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November 06, 2051

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