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Florida Third DCA finds that county building official who was subpoenaed for testimony as a non-retained expert in wrongful death lawsuit could not be compelled to testify

On December 4, 2019, in Miami-Dade County v. Morejon, No. 3D19-1784, the Florida Third DCA quashed a trial court order which effectively compelled the testimony of a county official who had been subpoenaed by the plaintiff in a wrongful death lawsuit. The decedent in the wrongful death case fell while working on the roof of a warehouse owned by the defendant. The personal representative of his estate filed suit alleging that the defendant’s failure to obtain certain permits created the dangerous condition that caused the decedent’s death. The plaintiff listed a county employee as an expert witness on the issue of permitting, and the defendant subsequently sought to depose him, leading the county to move for a protective order, which was denied by the trial court. On certiorari review, the Third DCA noted that the county employee was neither a fact witness nor a retained expert in the case but was essentially being asked to provide expert testimony regarding the general permitting practices of the county for roofs and skylights. The Third DCA concluded that “[i]t is well-settled that an unretained expert cannot be compelled to render an expert opinion where he lacks knowledge of the facts of the case, citing Meltzer v. Coralluzzo, 499 So. 2d 69, 70 (Fla. 3d DCA 1986); Young v. Metro. Dade Cty., 201 So. 2d 594, 596 (Fla. 3d DCA 1967).

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