In my practice I often see disclosures that list treating physicians as witnesses. There is often a generic, cut and paste paragraph noting that these treating physicians may also testify as non-retained experts. Some counsel rely upon that as their expert disclosure. This seems unnecessarily risky.
A somewhat similar issue arose in Ghidotti v. Waldron. The plaintiffs argued they had adequately disclosed non-retained experts because they had been disclosed as fact witnesses. “This court has consistently held that disclosing a witness as a fact witness, by itself, is insufficient to allow that witness to also present expert testimony.” Moreover, there is a difference between the description of testimony required for a fact witness and a non-retained expert. Plaintiffs “produced a summary of what Darnell was expected to testify about as a fact witness, not as an expert. We conclude that this was insufficient to disclose Darnell as a non-retained expert witness under rule 26(a)(4)(E).”
Plaintiffs then tried a side door, arguing “they implicitly disclosed Darnell as an expert witness and the substance of her potential testimony was properly disclosed through her deposition and financial documents.” That didn’t work. “[D]esignating a fact witness and also providing supplemental records or diagrams is insufficient to designate that witness as an expert.”
Just comply with the rule.
 442 P.3d 1237, 1241 (Utah App. 2019).