Lazy Non-Retained Expert Disclosures

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.[1]  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.

[1] 442 P.3d 1237, 1241 (Utah App. 2019).