Utah Court of Appeals
Can fact witnesses provide expert testimony on damages without proper disclosure? Ghidotti v. Waldron Explained
Summary
The Ghidottis purchased property to operate a dog training business, but later discovered the property was subject to restrictive covenants that prohibited their intended use. They sued for damages but failed to properly disclose Darnell Ghidotti as a non-retained expert witness under Rule 26(a)(4)(E), designating her only as a fact witness despite intending her to testify about lost profit calculations.
Analysis
In Ghidotti v. Waldron, the Utah Court of Appeals addressed whether a party can use a fact witness to provide expert testimony on damages without complying with expert witness disclosure requirements. The court’s ruling reinforces the strict application of Rule 26’s disclosure provisions.
Background and Facts
The Ghidottis purchased property intending to operate a dog training and boarding business, specifically seeking property not subject to homeowners’ association restrictions. After closing, they discovered the property was subject to CC&Rs that prohibited their intended business use. They sued the real estate agents for damages, calculating lost profits of $2,784,159 over 20 years based on the difference between their original business plan and operating at an off-site location.
Key Legal Issues
The central issue was whether Darnell Ghidotti was properly disclosed as a non-retained expert witness under Rule 26(a)(4)(E). The Ghidottis designated her only as a fact witness in their initial disclosures, despite intending her to testify about complex damage calculations. They argued this implicit designation was sufficient and provided adequate notice through her deposition testimony and financial documents.
Court’s Analysis and Holding
The court held that designating a witness as a fact witness is insufficient to allow expert testimony, even with implicit disclosure through other means. Rule 26(a)(4)(E) requires a written summary of facts and opinions for non-retained expert witnesses. The court rejected the argument that liberal construction under Rule 1 should excuse noncompliance, emphasizing that disclosure requirements serve the essential purpose of preventing unfair surprise and allowing informed discovery decisions.
Practice Implications
This decision underscores Utah courts’ strict enforcement of expert witness disclosure requirements. Practitioners must explicitly designate witnesses as experts with proper written summaries of expected testimony. The court noted that opposing parties rely on these disclosures for strategic decisions, including whether to retain their own experts. Failed disclosure cannot be cured through implicit means or supplemental discovery materials.
Case Details
Case Name
Ghidotti v. Waldron
Citation
2019 UT App 67
Court
Utah Court of Appeals
Case Number
No. 20180045-CA
Date Decided
May 2, 2019
Outcome
Affirmed
Holding
A party who designates a witness as a fact witness but fails to properly disclose that witness as a non-retained expert under Rule 26(a)(4)(E) cannot use that witness to present expert testimony on damages.
Standard of Review
Correctness for interpretation of Utah Rules of Civil Procedure and entry of summary judgment; abuse of discretion for failure to disclose expert witness
Practice Tip
When planning to use a party or fact witness for expert testimony on damages, explicitly designate them as a non-retained expert under Rule 26(a)(4)(E) with a written summary of expected facts and opinions—designating them only as a fact witness is insufficient.
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