(dissenting):
I dissent.
I think that it is most inappropriate to require another month-long jury trial in this automobile accident case simply because the trial judge refused to allow five minutes worth of rebuttal testimony which at best was only marginally relevant to the case. Because the facts are only briefly sketched in the majority opinion, I will outline them in some detail here.
In this diversity case,1 Miss Weiss claimed that a manufacturing defect in a Pitman arm stud, part of her 1960 Chrysler Imperial’s steering gear, was responsible for this serious automobile accident which resulted in the death of her brother and in serious injuries to herself and the other three passengers in the car. The front end of the autqmo-bile was completely demolished as a result of the accident.2 It was agreed by both parties that the stud had fractured in two stages. Miss Weiss alleged that both stages occurred while she was driving the car and that the fracture caused the car to leave the roadway and crash into a tree.
Chrysler claimed that the car left the roadway because Miss Weiss lost control of it and that the fractures occurred after the car left the roadway when the car struck a stump; the edge of a drainage ditch, and the tree. There was, of course, a third alternative — one stage of the fracture could have occurred prior to the car’s leaving the roadway and the second afterwards. If the jury believed this third alternative, its verdict would have been in favor of Chrysler.3
*461With the basic issues thus framed, .'it is instructive to turn to the evidence before the jury. According to Miss Weiss, she had been traveling north on tree-lined route 123, through New Canaan, Connecticut, on November 14, 1964, at approximately 40 miles per hour (the speed limit), when suddenly she felt a “snap” and the “steering wheel spun in [her] hand.” She testified that although the wheel turned to the right, to the left, and to the right, the car did not respond and continued to veer to the right, off the road, and into a tree. According to Miss Weiss the car was bn the roadway and 50 to 75 feet from the tree when the steering mechanism failed.
Miss Weiss testified that she did not recall going over any “bumps” in the road immediately prior to the accident, that she had not been asked by one of the passengers to slow down, and that she could not recall saying that she wanted to make up time lost because of a late start.
In several important respects, Miss Weiss’ view of the accident was disputed by other witnesses. Emmy Lou Salembier testified that on the day of the accident she was going northerly on route 123 at approximately 45 miles per hour. She stated that the Weiss car, going quite fast,, passed her car and another car approximately a müe and a half from the scene of the accident, and that this occurred'on a hill, where there was a solid line indicating that passing was improper.
Mrs. Salembier also testified that this particular section of route 123 had very noticeable humps in it where private driveways intersected with the highway4 and that she had observed that persons going too fast over the humps were apt to lose control of their cars. Chrysler offered testimony that the tendency of a car after going over this type of bump would be to veer to the right.
Robert Bunge testified that on the day of the accident he was proceeding south on route 123. He stated that he saw the Weiss car swerve off the road, back on, off the road, back on, and finally off the road into- a tree. He stated that he remembered that the car swerved left because he was afraid it would hit his auto if it kept coming into the left lane.
Herman Maraniss, a passenger in the back seat of the Weiss auto, testified that he had commented about the excessive speed at which Miss Weiss was driving the car three times during the trip from New York City — once while on route’ 123. He also stated that Miss Weiss told him that she wanted to get to her estate as quickly as possible so that their late start from New York would not deprive her brother of a chance to sit in the sun. Mr. Maraniss’ testimony was basically corroborated by another passenger, Modeste Hillary, Miss Weiss’ maid at the time of the accident.
Miss Weiss had to establish that the car left the road because the steering mechanism failed and not because she lost control of the car while speeding over the bumpy stretch of the road. The testimony of these on-the-scene witnesses, which came towards the end of this long trial, was quite damaging to Miss Weiss’ case. It gave the jury ample reason to believe that the Weiss automobile left the roadway because Miss Weiss lost control of it when it passed over a hump, going at a high rate of speed, especially *462since other evidence showed that the car left the roadway shortly after passing over a hump.
In reversing the jury verdict in Chrysler’s favor, the majority makes but two arguments.5 First, the majority takes great pains to show that Miss Weiss was surprised by the testimony of Sylvester Mazur, one of Chrysler’s experts, who said that the force which dented the right wheel of the car Would have been sufficient to fracture a sound Pitman arm stud. Since it was agreed that the tree stump dented the wheel, Mazur’s testimony was that the car’s collision with the stump could have broken the stud. Although it does not explicitly so hold, the majority seems to suggest that Mazur’s testimony should have been stricken by the trial judge because Chrysler did not reveal to Miss Weiss prior to trial, as it should have by updating its answers to her interrogatories, that it would argue that the stump played a role in fracturing the stud.
I disagree with the majority’s suggestion. A district judge should be given great leeway in deciding how to enforce his pretrial orders. This area is one where appellate courts should not intervene absent the most compelling circumstances, such as are not present here. My view of the breadth of the district court’s discretion is supported by the fact that the majority and Miss Weiss cite no cases where an appellate court has reversed a decision of a trial court in this area.
In any event, Miss Weiss cannot claim that she was surprised at Mazur’s testimony. Chrysler’s basic defense had always been that the fractures (or at least one of them) had occurred after the car left the roadway. Mr. Moseley, plaintiff’s expert cadologist,6 testified at the state-court trial7 that if the fracture of the stud was not complete when the car hit the stump, that impact would affect the stud.
Moreover, in his opening statement, Chrysler’s counsel stated:
[W]e will show you now not only that the cause of the accident was, if you will, the operation of the vehicle by Miss Weiss but that the reason that the bolt broke was what happened when the vehicle went off the road.
* * * * * *
In that 69 feet on the embankment on something of a tilt at times, apparently the vehicle hit initially a tree stump, which dragged the underneath portion of the car. The vehicle then went over a drainage ditch which the police estimate, and you will see photographs of it, being approximately two feet deep and four feet wide.
Then the end of the story was the impact of this vehicle against a tree approximately two feet in diameter.
Indeed, in the direct examination of Mr. Moseley, plaintiff’s first expert, Miss Weiss’ attorney was careful to elicit from him on two occasions his opinion that the steering failure occurred prior to the car’s impact against the stump, which suggests that her counsel was fully aware of Chrysler’s theory.
As noted below, the cross-examination and redirect, testimony of Moseley concerning the stump filled many pages of the record. As noted above, see note 3, the theory was before the state judge. To say that Chrysler “had hidden its the*463ory — to be sprung only after plaintiff had rested”' (Opinion at 457) is simply not true. If indeed this was Chrysier s only theory, as suggested by the majority, it was well known to Miss Weiss pri- or to the close of her case.
I conclude that Miss Weiss was not surprised by Chrysler’s defense of this case, and that the trial judge acted well within his discretion in the extent to which he enforced his pretrial orders.
Miss Weiss’ second claim, which is the basis of the majority opinion, is that the trial court committed reversible error when it refused to allow her rebuttal expert, Dr. Rader, to testify as to the force necessary to dent the auto’s wheel and whether that force could fracture a sound Pitman arm stud.8 I disagree. The trial court’s decision was not an abuse of its discretion.
At the outset I must take issue with the majority’s suggestion that Wigmore supports the view that plaintiff had a right to have this evidence admitted. Opinion at 458 & 459. I think that this distorts Wigmore’s position. Wigmore was referring to evidence not properly admissible in a plaintiff’s direct case; Rader’s testimony would have been proper. Moreover in a footnote to the sentence where he talks of a proponents’ “right” to have evidence come in as rebuttal he states, “Whether an error in this respect should be an adequate ground for a new trial is a different question, and of course a rational liberality would seldom find here such a ground.” J. Wigmore, Evidence § 1873, at 517 n. 4 (3d ed. 1940). He concludes this section of the treatise by remarking that “[i]n general, such discretionary variations should be liberally dealt with, for nothing can be more irrational or more unjust than to apply the judicial lash of a new trial to errors of trivial importance.” Id. at 517.
I am convinced that it was in Judge Griesa’s discretion to exclude Rader’s testimony. See French v. Hall, 119 U.S. 152, 7 S.Ct. 170, 30 L.Ed. 375 (1886); Casey v. Seas Shipping Co., 178 F.2d 360, 362 (2d Cir. 1949). First, the majority opinion is in error when it states that “[i]t became Chrysler’s theory that it was the load force of the stump impact on the wheel rim that had been sufficient to cause the first fracture.” Opinion at 452. There is nothing in the record to show that Chrysler adopted this specific theory. Mazur also testified that both the ditch and the tree could have fractured a sound Pitman arm stud. Since these two claims were unrefuted, while Moseley had questioned the effect of the stump impact, it is more likely that Chrysler would stress the claim that the ditch caused the first stage of the fracture or that the first stage had occurred prior to the car’s leaving the roadway. Thus, Rader’s testimony was not on a crucial issue in the case.
Second, Rader’s testimony was of questionable importance because it dealt with the force necessary to fracture a sound stud. However, it was conceded that the fracture occurred in two stages. The issue was not whether the impact with the stump could fracture a sound Pitman arm stud, but rather whether that impact could complete the fracture of the stud or cause the first stage of the fracture (i. e., crack the stud). It is not claimed that Rader was prepared to testify on this issue.
Finally, I think that there was a solid basis for Judge Griesa’s decision, which he reached after a careful review of the transcript of the testimony of plaintiff’s expert, Mr. Moseley. On direct examination, plaintiff’s attorney twice asked Mr. Moseley whether the steering failure occurred prior to the car’s striking the stump. On cross-examination the discussion between Chrysler’s counsel and Mr. Moseley with respect to the stump covered more than 20 pages of the transcript. See Appendix at 415 — 439. The key portion of that interchange is as follows:
*464Q: . . . If the forces that are generated throughout the linkage are sufficient to separate the tie rod stud, would those forces be sufficient to cause a failure to the Pitman stud?
A: I would say yes, but I would like to qualify what I mean by this, if I may.
Appendix at 439. I don’t think that in light of the preceding 24 pages of cross-examination that this exchange could be characterized as one general question about a “possible connection between the dent in the rim and the fracture of the stud.” See Opinion at 459.
Moreover Moseley was given a chance to explain and qualify his answer on redirect examination, see Appendix at 515-16, 519-528, where he testified at length as to why he did not think that the Pitman arm stud was completely fractured by the stump. From these passages it is clear that the connection between the car’s impact with the stump and the fracture of the Pitman arm stud was dealt with in depth during Mr. Moseley’s days on the witness stand. In light of the extensive redirect examination on this point I do not believe, as the majority claims, that the significance of Moseley’s cross-examination testimony completely escaped plaintiff.
In sum, Rader’s testimony was not directed at the only possible issue concerning the stump — whether the impact could have caused a partial fracture of the stud. In light of all of the other possible causes of partial fracture both before (product defect, prior accident) or after (ditch, tree) the car left the road and the fact that the issue was raised in plaintiff’s case, I do not think that Judge Griesa’s decision in this matter merits reversal.
When Miss Weiss proposed to have Dr. Rader testify about his experiment and his findings, Judge Griesa was faced with the likelihood that Chrysler would demand that it be given a chance to duplicate the experiment if he allowed Rader to testify with respect to this matter. Thus, if he did not exclude Rad-er’s testimony, he would have to choose between possibly prejudicing Chrysler in this matter or further delaying the end of this already too lengthy trial.
In these circumstances I am unwilling to reverse the judgment and require a new trial. Dr. Rader’s evidence was not crucial or critical to the central issue of the case. Its exclusion was surely not manifest error. Even if Judge Griesa’s ruling was erroneous, which I do not concede, in view of the testimony of three witnesses to the accident that Miss Weiss was driving at a speed far beyond what was prudent, it seems clear that the defendant’s case was so strong that it can be said, beyond a reasonable doubt, that the admission of the testimony of Dr. Rader which was excluded would not have made any difference in the verdict of the jury. Thus its exclusion was harmless error. Fed.R.Civ.P. 61; Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 482, 87 L.Ed. 645 (1943) (“Mere ‘technical errors’ which do not ‘affect the substantial rights of the parties’ are not sufficient to set aside a jury verdict in an appellate court. He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.”).
This lack of prejudice cannot be overstressed. As a minimum prerequisite of her case Miss Weiss had to establish that the stud was partially fractured prior to the accident. Assuming that the jury agreed with her on this point (and if it did not so agree Miss Weiss could not have prevailed), the only remaining issue was what caused the second stage of the fracture — the bouncing of the car on the road or the impact with the stump, ditch, or tree. Thus the only possible issue with respect to the stump was whether the car’s impact with it could have completed the fracture — something about which Rader was not prepared to testify. And even if he had been prepared to do that, his experimental evidence had no applicability to Chrysler’s contention that the ditch and the tree could have *465each fractured a sound, let alone a weakened, Pitman arm stud.
Chrysler has twice prevailed against claims by the Weiss family that a failure of the Pitman arm stud caused this accident; it should not be required to go through another trial on this issue. The delays in the trials of more important civil cases are already so great — largely because of the greatly increased number of criminal trials, which take precedence over civil cases under Plans for Prompt Disposition of Criminal Cases — that it seems to me to be a gross waste of our limited judicial manpower to require the district court to retry this diversity case involving an accident that took place over ten years ago.
While no member of this panel may have made the same decision as Judge Griesa did in the circumstances of this case, I see no reason to hold that his ruling on the admission of Dr. Rader’s proffered testimony was such an abuse of his discretion that the plaintiff is entitled to yet another try.
I would affirm the judgment for the defendant.
. Miss Weiss, a New York resident, brought this action in New York federal court against these out-of-state defendants over two and a half years after the accident. I note in passing that there is little rationale for allowing this type of diversity action to be brought in federal court. See H. Friendly, Federal Jurisdiction: A General View 147-48 (1973).
. No attempt was made to repair the car. In fact, shortly after the accident Miss Weiss allowed the auto to be junked. Later, plaintiff permitted all of the steering linkages (including part of the Pitman arm stud) to be thrown out. While Chrysler was able to make a limited examination of the remaining portion, of the stud, that portion had been lost by plaintiff by the time of trial.
. The majority cannot say that Chrysler did not argue this third alternative. The closing arguments of counsel are not in the record. In any event Judge Griesa charged the jury that “Chrysler contends that the testimony of Professor Gordon, among other things, shows that even if there was a fatigue crack it is equally possible that the crack arose from this Elfers accident in August.”
This instruction was given in response to Chrysler’s Request to Charge Number 6 which asked that the jury be told: “If you, the jury, find that it is just as reasonable that any defect in the vehicle was caused by the accident of August, 196[4] . . you must find for Chrysler.” While Chrysler may not have wanted the jury told that it contended that the stud was cracked prior to this accident, there is no question that it wanted the jury to be told that if the jury found that there was a prior crack, its verdict should still be for Chrysler if it also found that the fracture was not completed until the car left the road.
Moreover, this theory was before a state court in a related action. In rejecting the claim made here, the state judge stated:
I think the evidence was quite clear from both Gordon and O’Connell that in this bolt or pin there was a fracture which in their opinion had come before the impact up against the tree.
[Mr. O’Connell (an expert that Miss Weiss indicated she would call at the federal trial, but whom she did not call)] said that the crack, the initial crack could have come from any one of three different sources.
*461It could have come from the impact transmitted by rough terrain; (2) it could have come from a prior accident, as well as being a permanent crack occasioned by the [manufacturing process]. .
. [A]s a finder- of the facts I am not going to sit here and speculate which of the three possible causes of the original crack was responsible for the beginning of the complete severance of the bolt.
This decision of the state court was delivered from the bench before Chrysler put any witnesses on the stand.
. The humps exist because route 123 was built with a crown, i. e., the center portion of the road is higher than the sides. The driveways in this section of the road join the road at the level of the crown, thus causing a hump in the pavement on the sides of the road.
. I think it is significant that in a month-long trial, plaintiff found so little on which to appeal. Thoughout the trial, Judge Griesa treated plaintiff very fairly, almost to the point of being over-generous in his rulings.
. A cadologist studies cadology, which is a word invented by Mr. Moseley to describe his profession — the study of accident causes.
. Miss Weiss was a defendant in a state-court suit by the passengers of the auto. The claim raised here was involved in a second state-court action by her brother’s estate against Chrysler, among others. The actions were tried together and the claim against Chrysler was dismissed. Since Miss Weiss was not a party to the specific suit involving the claim against Chrysler, she is not bound by the state-court decision even though her case against Chrysler is virtually identical to that of her brother’s estate.
. It is worth noting that Dr. Rader was allowed to testify as a rebuttal witness on many other matters. Indeed, his testimony filled almost an entire day.