dissenting.
The sole issue which is relied on by the majority for reversal is whether an alleged trial error consisting of the giving of an incomplete or general statement as to the testimony of a proposed expert witness, in conjunction with the naming of the witness in the plaintiff’s pretrial statement, can justify the reversal of a judgment rendered following a lengthy and difficult trial and the award of a highly substantial verdict. There is not the slightest contention that the evidence is insufficient or that the claim is ill founded. Nor does it appear that the defendant made any effort by deposition or other means to obtain a detailed statement of the proposed testimony of the expert.
Some preliminary elements need to be delineated:
A.
JUSTICE DELAYED
These injuries occurred in 1973. There was a prior trial involving the wrongful deaths of the wives of the plaintiff Smith and the driver of the automobile in question, Mr. Fox. Here, we are well into the year 1980, and the end is not in sight. At the new trial there would not be any great difference, if any, in the facts. At the retrial either the testimony of Dr. Freston in person or his former testimony given at the trial below will be offered. It boils down, then, to whether or not the plaintiff is to be punished to this extent because of the action of his lawyer in not detailing the projected testimony of Dr. Freston rather than merely describing it in general terms. Note also that this is not a case in which there was a failure to endorse the name of a witness, as a result of which surprise was claimed by Ford at the trial. We expect to show that there was no surprise in fact, conceding that the statement was not full and complete.
B.
SURPRISE IN FACT IS NOT DEMONSTRATED
Ford maintains that it had only IV2 months to prepare itself, and thus its failure to take a deposition should not be counted against it. This is incorrect. The witness in question, Dr. James W. Freston, was in fact endorsed not quite 2V2 months prior to the trial in late March. This notice was given at a supplemental pretrial conference held on January 24, 1978. Does the time span of not quite 2Vt months prior to trial constitute a justification for failing to probe the details of Dr. Freston’s testimony? Counsel for Ford were aware of the fact that the plaintiff, Mr. Smith, was, at that very time, being treated by Dr. Freston and was in personal contact with Dr. Freston. Certainly, this was worthy of some inquiry. But, counsel for Ford made no move, formal or otherwise, to ascertain the details. Granted, the notice was cryptic and conclusory. This raises the question whether it is permissible in an adversary proceeding such as this for the attorney for the defendant to ignore a notice which gives the name and general nature of the testimony of an expert and to run the risk incident to not making inquiry as to the details of the testimony, notwithstanding that a mere demand submitted to the judge would have compelled the plaintiff’s lawyer to reveal in every detail the proposed testimony of the expert. Thus, it would not *803have been necessary for Ford to take a deposition. Certainly, it was hazardous in a case of this magnitude for Ford’s counsel to elect to run the risk of having to cope with damaging testimony for which no specific preparation had been made (so it is claimed). Of course, there had been preparation. Ford had brought in an expert from the University of Michigan Medical School, Dr. Huelke, who was fully prepared to refute any testimony dealing with the seat belt as a cause. Perhaps this latter fact accounts for Ford’s decision not to pursue the deposition.
The doubling of the damage demand by counsel for Smith to one million dollars, which took place virtually simultaneously with the listing of the witness, gave added notice to Ford that plaintiff did not believe that there existed a void in the testimony.
Accordingly, we have a setting in which a case had been carefully prepared over a long period of time and which was in the last weeks of preparation. The issues were fully understood. Ford knew about the problem of cause as applied to the seat belt because the main deficiency relied on by the defendant was this specific element. Also, Ford was prepared to meet this issue. The fact that Ford was ready detracts from the claim of Ford that it was surprised.
The witness who was endorsed, Dr. Freston, was not any ordinary internist. He was an expert in the particular field and in this particular part of internal medicine. He had not only an M.D. degree, but a Ph.D. as well, and he was Chairman of an important department of the University of Utah Medical School. Surely none of this was ignored by Ford.
C.
THE IMPORTANCE OF THE TRIAL COURT’S FINDING
A third factor which is entitled to be weighed is the finding of the trial court that surprise did not exist. In view of the specialty of Dr. Freston and the peculiarly serious injuries of Smith, including extensive injuries to the pancreas, which could be fatal, and removal of the spleen, there was good reason for counsel to be generally aware of the foregoing testimony and to expect testimony as to causation. This issue was anticipated of each of the other medical witnesses who were deposed.
D.
FORD’S ELECTION NOT TO OBJECT WHEN DR. FRESTON WAS ASKED A GENERAL QUESTION ABOUT PROXIMATE CAUSE
A timely objection to the testimony of this witness was not given. Counsel waited until Dr. Freston had testified to one phase of proximate cause, that which had to do with the automobile collision as a cause of the injuries which were the subject of the lawsuit. Objection was not made until the question of cause as it related to the seat belt was introduced. Only then did counsel for Ford claim surprise. The trial court considered this a waiver of objection.
E.
SURPRISE WAS NOT ESTABLISHED
Finally, the trial court had lived with this case and the predecessor. Having worked closely with the lawyers, the judge was in a good position to make a finding on the existence or nonexistence of surprise. Not a scintilla of evidence on the subject of surprise was offered by Ford. No detailed inquiry was conducted, no witness was presented, and so the reversal rests on an analysis by the majority of the circumstances surrounding this incident to the extent that they are able to squeeze favorable inferences from the basic facts, plus the mere claim that was made by counsel. This isn’t much.
The circumstances at the trial do not bespeak surprise. Not only was it brought out that Dr. Donald F. Huelke, Ford’s expert witness, was fully prepared on the general subject of seat belt cause, he was also ready to refute the testimony of Dr. Freston that the position of the seat belt produced the serious internal injuries. Dr. *804Huelke was even familiar with the Garrett and Braunstein article (the literature on which Dr. Freston relied).
The case of Tupman Thurlow Co. v. S. S. Cap Castillo, 490 F.2d 302 (2d Cir. 1974), considered whether the party claiming surprise was prepared to cope with the evidence to which objection was made, which fact was considered pertinent in deciding whether in fact there was surprise.
******
The preliminary facts which are stated raise a question as to why Ford refrained from deposing Dr. Freston, and whether Ford should be allowed to refrain from making any effort to ascertain the details of the testimony of an expert who is listed and to rely entirely on the initiative of the plaintiff in bringing each and every detail to its attention. Ford would say that it was so misled by the statement that it did not consider it necessary to act. This ignores the complexity of the case, for example, the fact that the causation issue was foremost in the minds of both lawyers. A distinguished physician was named and thorough preparation required every possibility to be examined. Is it unnecessary for the adversary party to take obvious steps to protect its position? Neither side should, consistent with the spirit of the rules, be allowed to sit back and fail to take obvious action to ascertain facts. To fail to do so suggests an attempt to use the rules for the object of developing an error. The trial court was of the view that neither side was genuinely surprised, that each was trying to outmaneuver the other. If this was the case, there should not be a reversal because this punishes the innocent litigant.
The important guide to the duty to supplement requests for discovery is subsection (e) of Rule 26, an amendment which was added in 1970. It states that “A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response” except in two instances: 1) where the question is addressed to the identity and location of persons having knowledge of discoverable materials; 2) to identify each person who expects to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.1
Professor James Moore in his Treatise, Moore’s Federal Practice Section 26.81, explains the purpose of the amendments:
Subdivision (e) of Rule 26 was added in 1970 to end the uncertainty that had developed over the duty to supplement. This provision imposes directly the duty to supplement answers to interrogatories seeking the identity and location of persons having knowledge of any discoverable matter, and answers to interrogatories seeking the identity of persons expected to be called as expert witnesses at the trial and the substance of their expected testimony. Further, when a party who has answered interrogatories discovers that the answers were incorrect when given, he has a duty to amend them to conform to the truth.
Along the lines suggested by Judge Ellis in Gorsha [v. Commercial Transport Cpr., 38 F.R.D. 188 (E.D.La.1965)], the subdivision also provides that under circumstances in which failure to provide subsequent information would be “in substance a knowing concealment" there is a duty to supplement the answer though it was correct when made.
Flexibility is provided by a provision in subdivision (e)(3) that the duty to supplement answers may be imposed by the court or by agreement of the parties. Of course the parties are free to serve new interrogatories requesting supplementation of the answers to the earlier set. (Emphasis supplied.)
*805Does the majority opinion impose an absolute and exclusive duty on a party to supplement answers to interrogatories or to amend them? It does this and more. The failure to detail the testimony, according to the majority, can be likened to an offense Malum in se. It calls for imposition of the extreme penalty regardless of whether surprise, prejudice or willfulness is established.
The First Circuit in Simonsen v. Bario Plastics Co., Inc., 551 F.2d 469 (1st Cir. 1977), considered the consequence of plaintiff’s failure to disclose the complete substance of an expert witness’s testimony. It held that the consequence was within the trial court’s discretion. The plaintiff in Simonsen had not given notice that his expert would testify to permanent unemployability of the plaintiff. The defense sought a recess in order to find a vocational rehabilitation expert. The trial court denied the motion seeking delay and the First Circuit affirmed. The court said:
PSCo argues that it should not be bound by the pretrial order as it was surprised by testimony of plaintiff’s expert, Arthur Kenison, that Simonsen might be permanently unemployable. ... At the time the list of expert witnesses was filed, Simonsen is said to have been working on and off as a truck driver so that PSCo had no reason to anticipate any need for testimony about vocational rehabilitation. However, PSCo was informed over five months prior to trial that Kenison would be testifying as an expert and, through discovery, could have ascertained the substance of his testimony. . Moreover the complaint had alleged permanent disability. Clearly the court did not abuse its discretion in refusing to hold up the progress of the trial for the testimony of the unlisted and as yet unlocated expert. (Emphasis supplied.)
551 F.2d at 471.
Simonsen thus places the burden on the defendant to take the initiative by deposing the witness — just the opposite of the position taken by the majority here.
The situation is far different where the expert witness is unknown and an effort is being made to call him after having failed to name him. See Davis v. Duplantis, 448 F.2d 918 (5th Cir. 1971). But in that case the trial judge allowed the expert to testify notwithstanding failure to list his name as a witness in accordance with the pretrial order. The Fifth Circuit upheld the ruling, noting the severity of the sanction which denies the testimony. Thus, the court weighed the consequences of precluding the calling of the witness against the magnitude of the violation of the rule and decided that the discretion of the trial court should be upheld. The Fifth Circuit was also persuaded by the fact that the plaintiff’s counsel knew that the doctor was a potential witness since he had been furnished a report before the trial and had had an opportunity at that time to depose him.
The Seventh Circuit has also had occasion to rule on the subject of failure to name the witnesses where knowledge of expertise was not discovered until time of the trial. See Sadowski v. Bombardier Ltd., 539 F.2d 615 (7th Cir. 1976). The witnesses in that case had been listed in the pretrial order, but had not been listed as experts. The court noted that the question was a close one, but observed that the testimony became significant during the trial and this tended to excuse the lateness of their being treated as experts. Again, the exercise of the trial court’s discretion was upheld.
This court had occasion to consider the admissibility of material which had not been disclosed in a supplement to a response given in answer to an interrogatory required by Rule 26(e) in Price v. Lake Sales Supply R.M., Inc., 510 F.2d 388 (10th Cir. 1974). We stated:
It is quite true that parties are under a continuing duty to supplement their responses. See 4 J. Moore, Moore’s Federal Practice [Section] 26.81 (1970). Rule 26 clearly requires this. There is no indication, however, that the trial court believed that tnis failure to amend was a knowing concealment. In any event, it is questionable whether exclusion is the only proper penalty for failing to comply with the requirement. Surely the trial *806judge has some discretion in selecting the sanctions and it does not appear that the court abused its discretion in this instance.
510 F.2d at 395. We thus recognized in that case the importance of the fact that there was a lack of evidence showing a knowing concealment. It was also recognized that the use of the exclusion sanction was questionable and that the trial judge should have some discretion in selecting sanctions and that in that instance there was no reason to conclude that there had been an abuse of trial court discretion.
The majority opinion cites, among other cases, the Fifth Circuit’s decision in Shelak v. White Motor Co., 581 F.2d 1155 (5th Cir. 1978). In that case the trial court’s discretion was determined to have been improperly exercised in allowing the testimony of plaintiff’s expert witness, which testimony connected the plaintiff’s back injuries to an accident on a defective step and also connected a heart attack to the same accident. The evidence of the causal connection of the heart attack arose on the date of the jury selection. It is understandable that the testimony in the Shelak case, considering the date on which it arose, and the nature of it, justified the trial court’s decision that it should be rejected. However, even in that extreme situation, there was a divided court. Judge Rubin dissented on the ground that the trial court’s discretion in allowing the evidence should have been upheld. In the Shelak case the trial court had also allowed a witness to testify who had not been named. The Fifth Circuit ruled that receipt of this evidence was not reversible error because it did not appear that there was surprise and thus prejudice. See 581 F.2d at 1159. Thus, the Shelak case is at odds with the proposed opinion in this case, which holds that it was error for the trial court to allow Dr. Freston to testify even in a situation in which surprise was far from clear.
Weiss v. Chrysler Motors Corporation, 515 F.2d 449 (2d Cir. 1975), is relied on by the majority as upholding the right of a reviewing court to void the exercise by the trial court of discretion on a matter such as is presented. It is to be noted, however, that the Weiss case involved broad and general notice as to what the witness was going to testify to. Actually, the Second Circuit in the Weiss case ruled that this was not reversible error. The case was reversed for error in refusing to admit proffered evidence in rebuttal, which evidence was admissible as a matter of right and which did not become pertinent until the rebuttal. 515 F.2d at 458, 459.
The majority opinion also relied on the case of Voegeli v. Lewis, 568 F.2d 89, 96 (8th Cir. 1977), a malpractice case in which one of the expert witnesses for the defense changed his testimony between the time of his deposition and the time of trial. The defense had demanded through interrogatories the nature of the testimony which was being offered. The answers were inadequate and the court granted a motion to compel answers, but, again, the answer was inadequate and misleading. A second set of interrogatories was denied enforcement by the court. Also, the court allowed the defendant to call another expert witness, although, previously, counsel for the defendant had indicated that he would not be called, as a result of which there had not been voir dire examination of the jury concerning the witness. The Court of Appeals for the Eighth Circuit reversed the case and remanded it to the trial court, saying that there had been an abuse of discretion by that court growing out of the trial court’s having failed to enforce its original order compelling answers to interrogatories in the case of one of the experts who changed his testimony. The court said, in addition, that the plaintiff was deprived of the opportunity to voir dire with respect to the other expert. Voegeli is so complex and different from the case at bar that it is not an effective authority in this case, which is limited to an objection to allegedly surprise expert testimony, the substance of which was claimed to have produced surprise.
There is one other complaint by the majority and that is that Ford was allowed only 10 minutes to prepare cross-examination. The majority does not mention the fact that the 10 minutes was all that was *807requested. Moore’s Federal Practice paragraph 59.08[2] states that the surprised party should move for a continuance at the time of the surprise or otherwise he will be considered as having waived his objection. The cases cited by Moore are Jackson v. MFA Mut. Ins. Co., 169 F.Supp. 638 (W.D.Ark.1959); Campbell v. District of Columbia, 153 F.Supp. 730 (D.D.C.1957), aff’d 254 F.2d 357 (D.C.Cir.1958); Dow v. Camegielllinois Steel Corp., 70 F.Supp. 1016, 1019 (W.D.Pa.1947), rev’d on other grounds, 165 F.2d 777 (3rd Cir. 1947); Beardsley v. Howard & Bullough American Mach. Co., 176 F. 619 (C.C.D.R.I.1910). Cf. Tabatchnick v. G. D. Searle, 67 F.R.D. 49 (D.N.J.1975).
In summary:
The finding of the trial judge that surprise was nonexistent is of high importance for these reasons:
1) The cases show that actual existence of surprise is essential. Also necessary is, of course, prejudice.
2) Constructive surprise, as discussed in the majority opinion, without more, surely is not enough. Surprise implied in law will not suffice. The surprise must be real.
3) The evidence of surprise is meager. There exists, of course, the claim made in open court by Ford’s counsel, but this is not evidence. It is merely an allegation. If, indeed, this seasoned and experienced trial lawyer was surprised, that indeed would be surprising given the exposure that he has had in this case. In fact, both sides have lived with the case for many years and they were sensitive to the issue of seat-belt-cause alleged by plaintiff and defended by Ford. Both sides knew that plaintiff had to come forward with evidence establishing that the seat belt caused the harm. Furthermore, the conduct of counsel for Ford during the trial showed that he was alert to the issue and indeed apprehensive about the special testimony of Dr. Freston on the subject, for he was quick to distinguish between general causation and the specific causation involved here.
In the face of the foregoing, how can the majority demonstrate the plain error necessary to a substitution of its judgment for that of the trial court?
We mention one final point. The Rules of Civil Procedure do not allow counsel on one side to depend on his opponent for every item of evidence that the opponent is going to offer. The Rules contemplate the identification of witnesses and subject matter so as to permit the adversary to take depositions or to seek interrogatories or move for a more detailed statement as to what the evidence is going to be, but all of these avenues are open and to place all of the burden on the plaintiff to the detriment of his client is, to say the least, grossly unjust.
In closing, there is no gainsaying that the sanction imposed was excessive considering the circumstances, including the length and difficulty of the trial and the fact that there is no real issue as to Ford’s liability.
This was a well conducted trial, as lengthy and complex trials go. Unfortunately, it is impossible to have a perfect trial, human fallibility being considered. This is especially true from the standpoint of technical perfection. This does not mean that perfection should not be sought after, but there is not an indication that this goal was ever abandoned in the present case.
For all of these reasons, I respectfully disagree with the reasoning and conclusion of the majority opinion.
. The text of Rule 26(e)(1) is as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter in which he is expected to testify, and the substance of his testimony.