Ghidotti v. Waldron, 2019 UT App 67 (May 2, 2019)

The plaintiffs sued the sellers and their real estate agent and broker for failing to disclose that property was subject to restrictive covenants that prevented plaintiffs from operating a dog training business.  The plaintiffs did not disclose an expert to support their damages in accordance with Rule 26, but they argued that they implicitly and sufficiently designated one of the plaintiffs as a non-retained expert when they listed her as a potential fact witness in their initial disclosures, when she testified about their damages during a deposition, and when they disclosed the financial documents that she intended to testify about in supplemental disclosures.  The Court of Appeals held that plaintiffs’ “implicit disclosure” argument is contrary to its precedent, and plaintiffs failed to properly disclose the non-retained expert under Rule 26.