(dissenting).
I concur with the majority’s disposition of the second issue. I cannot, however, agree with the majority’s holding that it was prejudicial error to deny the continuance and therefore I respectfully dissent.
It is axiomatic that “a federal trial judge has broad discretion in granting or denying a request for short continuances during the course of a trial.” Winston v. Prudential Lines, Inc., 415 F.2d 619, 620 (2d Cir. 1969), and it is equally well-settled that “the trial court should have discretion in carrying out discovery requirements and that inaccuracies or errors at this stage of the proceeding should not form the basis for setting aside verdicts, unless prejudicial error is shown.” Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1963). It is not for this court to second guess the trial judge who observed the circumstances first hand when the prejudicial consequences of the failure of discovery are as doubtful as they are in this case.
Were the circumstances here as clearly a deprivation of discovery as in the cases cited by the majority, I might concur in reversal. But this is not a case like Greyhound, where a pre-trial order to produce records of plaintiff’s post-accident hospitalizations was made while plaintiff was in a certain hospital and plaintiff nevertheless withheld that information for four months until the trial began because the information was highly damaging. Nor is it like Gebhard, where plaintiff withheld the names of eyewitnesses for 7 days until the last day of the trial because their testimony gave a totally different view of how the accident occurred. I do not believe it is entirely accurate to say that “Dr. Natarajan’s testimony added a significant new dimension to appellee’s case.” Plaintiff’s answers to defendants’ interrogatories and reports of her Scottish physicians were available to defendants’ attorneys long before the trial. Although these documents did not assert a claim of traumatic neuroses in those precise words, they plainly described her condition in terms which defendants’ experienced and competent attorneys should have recognized as symptomatic of that affliction.1
Nor can it be said here as in Greyhound and Gebhard that “the failure to disclose was willful. . . . ” 122 N.W.*4852d at 115. Plaintiff apparently returned to Scotland after the 1966 accident and her South Dakota attorney evidently had little personal contact with her until she returned to Rapid City on September 28, 1970, three days before the trial. That afternoon she visited the originally treating physician, Dr. Fromm, and, upon Fromm’s advice, she visited a specialist, Dr. Allen, on the 29th. Also on the 29th, her deposition was taken by defendants, and it was not until the next day that she saw Dr. Natarajan for the first time. At the outset of the trial on the following day, October 1, defendants were apprised of the examination, that Natarajan might become a witness after plaintiff’s attorney had consulted with him again, and that plaintiff claimed to suffer a traumatic neurosis. Insofar as the relative knowledge of the parties, then, it appears that while defendants did not know of Natarajan’s diagnosis until the day before he testified, plaintiff became aware of it only a day sooner than defendants.
In addition to the foregoing, it is apparent that the trial judge adequately protected defendants’ interests by ordering a day’s delay before Dr. Natarajan would be allowed to testify to enable defendants to have plaintiff examined by a physician of their choice pursuant to Rule 35 and to take Natarajan’s deposition pursuant to Rules 26(b) (4) and 30. While we are bound by the record to the conclusion that defendants were unable to procure the services of the only other psychiatrist in the area, it is clear that defendants’ failure to depose Natarajan and their reliance on the treating physician, Fromm, as an adverse expert was a decision of trial tactics. Defendants’ capable counsel were clearly conversant on the subject of psychiatric diagnoses and presented a thoroughly prepared cross-examination of Natarajan which focused on the unreliability of psychiatric diagnoses based solely on subjective symptoms revealed in a single interview. Defendants relied heavily in closing arguments upon contrasting this characterization of Natarajan’s diagnosis with that of the originally treating physician, Dr. Fromm. Indeed, defendants could hardly ask for better expert testimony than Fromm’s clear inference that plaintiff suffered only from compensationitis.
I am constrained to believe that defendants chose the trial strategy they preferred, hoping of course to discredit Dr. Natarajan’s diagnosis with the testimony of Dr. Fromm. In any event, the record viewed in its entirety does not convince me that the trial judge acted arbitrarily and abused his discretion. I would affirm.
. Dr. Patterson’s report said “her general nervous condition has deteriorated and this, in my opinion, is the result of the accident.” Dr. MacKechnie’s report said that lie had been treating her subsequent to the accident “for a nervous condition,” that she “requires day sedation, and due to her disturbed sleep, she requires treatment for this also,” and that “[t]here is no doubt she will be affected by her injuries and nervousness for some time to come. ...”