final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County
Lower Tribunal No. 17-3404, John W. Thornton, Jr., Judge.
Abigail Price-Williams, Miami-Dade County Attorney, and
Christopher A. Angell, Assistant County Attorney, for
Offices of Sean M. Cleary, P.A., and Sean M. Cleary; Joel S.
Perwin, P.A., and Joel S. Perwin, for respondent Roberto
Artiles Morejon; Clyde & Co U.S. LLP, and Barry L. Davis,
and David A. Wagner, for respondents Martex Corporation and
Maintenance Authority Professional Services, Inc. d/b/a Maps,
LINDSEY, HENDON and GORDO, JJ.
County, a non-party to the proceedings below, petitions for a
writ of certiorari quashing the trial court's order
denying its motion for protective order. Respondents Martex
Corporation and Maintenance Authority Professional Services
Inc. (collectively, "Respondents") listed County
Building Official Jamie Gascon as an expert witness. The
County sought to preclude the parties to the underlying
action from taking Mr. Gascon's testimony as he was
neither a fact witness nor a retained expert. The County
argues that the trial court departed from the essential
requirements of the law by compelling Mr. Gascon to testify
as an expert without having been paid fees and by allowing
Respondents to call him as a fact witness when he has no
personal knowledge of the case. For the reasons that follow,
we grant the petition and quash the trial court's
AND PROCEDURAL BACKGROUND
October of 2016, Ernesto Artiles was working on the roof of a
warehouse owned by Respondent Martex. While on the roof, Mr.
Artiles stepped through a skylight and fell to the floor of
the warehouse. Mr. Artiles died as a result of his injuries.
Artiles Morejon, Mr. Artiles's father, sued Respondents
alleging that Respondents' failure to obtain certain
permits from the County created the dangerous condition that
caused his son's death. Neither the County nor its
building official, Mr. Gascon, is a party to those
listed Mr. Gascon as an expert witness for trial. In
response, Mr. Artiles Morejon sought to depose Mr. Gascon.
The County filed a motion for protective order seeking to
preclude the parties from eliciting testimony from Mr.
Gascon, as he was neither a retained expert nor a proper fact
witness. The trial court denied that motion. This petition
OF RELIEF BY CERTIORARI
invoke the certiorari jurisdiction of this court, a
petitioner must demonstrate a departure from the essential
requirements of the law which results in a material injury
for which there is no adequate remedy on appeal."
State v. Hernandez, 278 So.3d 845, 848 (Fla. 3d DCA
2019) (quoting State v. Styles, 962 So.2d 1031, 1032
(Fla. 3d DCA 2007)). "The requirements of material harm
and the lack of a remedy on appeal are jurisdictional."
Id. (quoting State v. Welch, 94 So.3d 631,
634 (Fla. 2d DCA 2012)). "Certiorari is the appropriate
method to review [an] order entered in connection with
discovery proceedings." Fortune Ins. Co. v.
Santelli, 621 So.2d 546, 547 (Fla. 3d DCA 1993). Where
the trial court's denial of a motion for protective order
grants discovery, that decision is reviewable through
certiorari. Greenstein v. Baxas Howell Mobley, Inc.,
583 So.2d 402, 403 (Fla. 3d DCA 1991). We have jurisdiction.
we consider whether the trial court's order departed from
the essential requirements of the law. It 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. See, e.g., 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). A court
errs in compelling an expert "to testify when he ha[s]
not been retained by the part[ies] and ha[s] no specific
knowledge of the case, in contrast to general knowledge [he]
may have by virtue of being an expert." Kridos v.
Vinskus, 483 So.2d 727, 732 (Fla. 4th DCA 1985) (on
rehearing). Moreover, a County employee cannot testify as an
expert without the County's explicit authorization.
See §§ 2-11(a), (c), ...