dissenting.
Because the record shows that General Motors (GM) was unfairly surprised by Blake on the eve of this complex product liability trial with an entirely new theory of recovery, the trial court abused its discretion by denying GM’s motion for a continuance. The majority concludes that the surprise was of GM’s own making. This conclusion ignores that Blake initially stated in her complaint and subsequently relied upon one claim of product defect from October 31, 1994, until she revealed to GM an entirely new and unrelated claim of product defect on the afternoon of April 25, 1997, just two days before the start of the trial. It also ignores that, during this entire period of time leading up to the eve of the trial, Blake failed to reveal the new defect claim and failed to reveal the expert witness she used at trial to explain the new claim, despite the fact that GM had specifically sought this information in formal discovery. Nevertheless, the majority blames GM and concludes that GM should have *432obtained the product (which was in Blake’s possession), dismantled it, and attempted to discover whether it might have a defect Blake had not claimed which Blake might rely upon at trial. In other words, the majority concludes that GM should have divined Blake’s real defect claim while Blake withheld responses to GM’s discovery and actively misled GM with claims of an entirely different product defect. In concluding that the trial court properly exercised its discretion to deny GM a continuance under these circumstances, this Court sanctions the very type of trial by ambush that the discovery rules and the proper exercise of judicial supervision were designed to prevent.
Blake’s complaint against GM was filed on October 31,1994, and alleged that the seat belt she was wearing at the time of the accident was defective in that it unexpectedly opened or unlatched during the accident and therefore failed to restrain her. Blake stated in a post-trial brief that she “initially contended that her seat belt unlatched during the collision as a result of a defective condition known as ‘inertial release.’ ” GM served interrogatories on Blake on January 18,1995, in which Blake was asked to state which part or parts of the automobile she contended were defectively designed or manufactured, state the contended defect in any such part, and identify each expert she expected to call as a witness at trial in support of these contentions along with the substance of the facts, opinions and grounds for the opinions of each such expert. Blake responded to the interrogatories on March 1, 1995, stating that the defectively designed or manufactured part was her seat belt. In stating the contended defect in the seat belt, Blake responded that, “The seat belt did not hold Plaintiff ... on impact. Plaintiff believes there was a defect in the design and/or manufacture. Plaintiff lacks sufficient knowledge or expertise to respond further to this Interrogatory.” In responding to GM’s interrogatory seeking information as to expert testimony, Blake stated that, “Plaintiff has not yet identified an expert. Plaintiff will supplement this response.”
The record shows that the case was subsequently ordered to arbitration in January 1996. At the arbitration hearing in August 1996, Blake contended that she was thrown forward into the dashboard and steering wheel during the accident because the seat belt she was wearing opened or unlatched. However, during arbitration GM produced expert testimony that Blake’s seat belt restrained her during the accident and did not inertially unlatch. Because of the expert testimony produced by GM at the arbitration hearing, Blake thereafter started to look for another theory, other than unlatching, to support her claim that the seat belt was defective. As Blake stated in response to a post-trial motion filed by GM:
*433At the arbitration hearing in this case, GM effectively demonstrated that Plaintiff’s seatbelt probably did not unlatch by inertial release. Although Plaintiff still had substantial evidence that the seatbelt system malfunctioned during the collision, Plaintiff could not determine the specific defect which caused the failure without retaining an expert to conduct a detailed physical examination of the seatbelt and its mechanisms.
Unsatisfied with the results of arbitration, Blake filed a demand for a jury trial on August 9,1996. Thereafter, the case was set by the Fulton County State Court for trial to begin on March 17, 1997, but the trial court granted a joint motion to remove the case from the March calendar because of conflicts with other scheduled cases. The case was reset for trial to begin on April 28, 1997. After the case was reset for trial, GM filed a motion for a continuance on April 17, 1997. The basis for the motion was that GM needed additional time to conduct discovery of Blake’s expert witnesses and to identify and prepare rebuttal expert witnesses. In support of the motion, GM pointed out that, over two years earlier, it filed interrogatories seeking the identity of Blake’s expert witnesses, but that Blake did not identify any experts in her response to the interrogatories nor had she supplemented her responses as required under OCGA § 9-11-26 (e). GM further noted that, after the case was removed from the March 1997 calendar, it wrote Blake on March 14, 1997, stating that discovery of expert witnesses needed to be completed. Blake responded to that letter on March 18 stating that, “We are in the process of obtaining dates from our experts and will be in touch with you later.” GM further showed that, after the case was reset for trial on April 28, counsel for GM contacted Blake’s counsel by telephone on April 14 at which time Blake’s counsel gave GM the names of two experts Blake intended to call at trial, stated that a third expert would be identified later, but gave no information as to the subject matter of the experts’ testimony.
On April 18, 1997, without the benefit of any discovery from Blake’s experts, GM supplemented its responses to Blake’s interrogatories identifying experts it intended to call as witnesses to rebut Blake’s standing claim that the seat belt was defective and failed to restrain her because it unlatched during the accident. On April 21, 1997, Blake supplemented her responses to GM’s interrogatories as to expert witnesses. Blake identified three experts, two engineers and a medical doctor. As to the engineers, Blake’s supplemental response stated that one engineer would offer testimony “as to the seatbelt system” and the other would testify as an accident recon*434structionist about “the collision, the seatbelt, and the damage to the vehicle.”
On April 22, 1997, the trial court heard and denied GM’s motion for continuance. On April 23, 1997, the trial court entered a pretrial order in the case which stated in part that: “Discovery of expert witnesses is not complete. The parties are working to schedule the depositions of expert witnesses.” The portion of the pretrial order setting forth Blake’s contentions with respect to the seat belt stated only that, “Plaintiff asserts that the seat belt restraint system was defective, negligently designed, tested, manufactured or sold.”
On April 25, 1997, the Friday before the trial was scheduled to begin on Monday, April 28, Blake for the first time had Dr. Townsend, one of her expert engineers, examine the Spectrum’s seat belt system which she claimed was defective. As a result of his examination of the seat belt, Dr. Townsend concluded that the seat belt was defective and failed to properly restrain Blake during the accident. However, Townsend’s theory as to why the seat belt was defective was unrelated to Blake’s earlier claim that the seat belt was defective because it unlatched during the accident. Townsend’s opinion was that, while the seat belt remained latched, there were simultaneous failures in two other components of the seat belt system, the retractor (which spools out belt to allow the occupant to put on the seat belt but locks to prevent spooling on impact) and the cinching latch plate (designed to cinch down to prevent lap belt slippage). Townsend concluded that a manufacturing defect in the retractor prevented it from locking, allowing a length of belt to improperly spool out from the retractor on impact. He then concluded that the cinching latch plate also failed by allowing the improperly spooled-out length of belt to pass through and loosen the lap belt. Townsend concluded that the loosening of the lap belt caused by the failure of these two components allowed Blake to slide forward in the seat belt system seven inches more than she would have had the system properly restrained her during the accident. According to Townsend, the extra seven inches Blake slid forward allowed her right leg to make contact with either the dashboard or the steering column in a manner that caused severe leg injuries she would not have suffered had the seat belt system functioned properly.
Central to Townsend’s opinion was his conclusion that the retractor failed because of a manufacturing defect. When Townsend first examined the retractor, he stated that it worked properly. He then disassembled the retractor, which required the removal of six plastic pins holding the cover in place. During the disassembly, Townsend said that he lost one of the pins when it went “ping” and flew off the table into a nearby radiator. He then put three of the remaining five pins back into one side of the retractor, leaving two *435pins on the table. However, later in the examination, Townsend said he suddenly realized there were three pins on the table instead of two. He concluded that the third pin which appeared on the table must have been an extra pin placed loose inside the retractor during a defective manufacturing process and that it fell out of the retractor onto the table during the disassembly. He further concluded that the extra pin inside the retractor prevented the retractor from locking properly in the accident. He explained that the retractor worked properly before he disassembled it only because the loose pin inside the retractor was not in the critical location at that time to prevent locking.
Townsend formed these opinions, which became the new basis for Blake’s claim, after Blake made the seat belt system available for his examination on April 25. Accordingly, GM’s first opportunity to learn that Blake had abandoned her initial unlatching defect claim and adopted a new unrelated defect claim was when it deposed Townsend on the afternoon of Friday, April 25, just two weekend days prior to the trial set for Monday, April 28. On April 28, prior to the commencement of the trial, GM informed the trial court that, after deposing Blake’s expert, Townsend, on Friday afternoon, it was surprised to learn that Blake was proceeding on an entirely different defect claim from the claim she had initially set forth and pursued during the litigation. GM informed the trial court that, in light of this surprise, it would be prejudiced in its defense of the case without a continuance. Accordingly, GM renewed its earlier motion for a continuance made on the basis that GM needed additional time to conduct discovery of Blake’s expert witnesses and to identify and prepare rebuttal expert witnesses. The trial court responded that the case had been pending since 1994, had been continued from the March calendar, and that any unfairness caused by the surprise was not created by the court. Finding “no evidence saying that all of this could not have been done previously,” the trial court again denied the motion for a continuance.
When the trial commenced, Blake relied on Dr. Townsend’s expert opinion testimony to establish her claim that the seat belt was defective and caused her severe leg injuries. In the absence of a continuance to allow GM to obtain additional evidence or witnesses to consider and respond to Dr. Townsend’s new defect theory, GM attempted to rebut Dr. Townsend’s opinion testimony with the expert opinion testimony of David Peruski. Peruski had previously been identified by GM during arbitration and in GM’s April 18, 1997 supplemental responses to Blake’s interrogatories as the expert GM intended to rely upon to rebut Blake’s original claim that the seat belt was defective because it unlatched during the accident. After being qualified at trial to give expert opinion testimony as to seat *436belt design and performance, occupant kinematics, and accident reconstruction, Peruski gave his opinion rebutting each aspect of Dr. Townsend’s opinion, except the critical portion of Dr. Townsend’s opinion that the retractor was defective and failed to lock on impact because of a manufacturing defect which placed a loose pin inside the retractor. When GM attempted to offer Peruski’s expert opinion that it would have been impossible for a loose pin to be placed inside the retractor during the manufacturing process, the trial court sustained Blake’s objection that Peruski was not qualified to give expert testimony as to the manufacturing process involved in the placement of the pins into the retractor.
In support of his opinion, Dr. Townsend also testified as to the results of an exemplar study of the accident which he conducted on Saturday, April 26, 1997, the day after he was deposed by GM and less than 48 hours prior to commencement of the trial. Dr. Townsend illustrated the study to the jury by the admission of photographs of Blake placed in a similar Spectrum automobile. In an attempt to rebut Dr. Townsend’s exemplar study, GM had Peruski conduct a similar exemplar study using another Spectrum and a human model matching Blake’s physical description. GM did not complete this study and develop the photographs to illustrate it until Wednesday, April 30 or Thursday, May 1, during the first week of the trial. Although Peruski was allowed to testify as to the results of his study when GM began the presentation of its defense on Friday, May 2, the trial court refused to admit photographs of the study. The trial court sustained Blake’s objection that admission of the photographs would be unfair because Blake’s counsel did not receive them until the afternoon of Thursday, May 1 and had not had an opportunity to have them examined by their experts, who had already left town. Direct and cross-examination of Peruski continued through Friday. When the second week of the trial commenced on Monday, May 5, GM again offered the photographs for admission noting that Blake had the entire weekend to have them examined. The trial court first admitted the photographs then reconsidered and excluded them on the basis that they were not timely produced.
The record in this case shows that, after filing this defective seat belt claim in October 1994, Blake maintained her initial theory of the defect until an expert witness she did not formally identify until a week before the April 1997 trial formed an opinion just two days prior to the trial that other unrelated defects in the seat belt caused her injuries. GM immediately deposed Blake’s expert after he examined the seat belt and formed his opinion and discovered just two weekend days before the trial was scheduled to begin that Blake’s claim was based on an entirely new defect theory. Although GM mounted a credible defense to the new claim on short notice, the *437record shows that GM’s defense was prejudiced by its inability, without more time, to adequately prepare for and rebut expert testimony presented by Blake which was critical to her claim. Under the facts of this case, I agree with GM’s contention that this constituted surprise which entitled it to a continuance of the trial.
Decided March 19,1999 Reconsideration denied April 1,1999 King & Spalding, Lanny B. Bridgers, William R. Bassett, Jr., Carolyn E. Wright, for appellant. Sharon E. Howard, James W. Howard, Christopher J. McFadden, for appellee.Where a witness providing testimony of a potentially critical nature, which opposing counsel does not know about or have equal means of knowing, becomes known shortly before trial, opposing counsel is entitled to a reasonable amount of time prior to trial to depose the witness, check the facts to which the witness would testify and, if indicated, arrange to secure rebuttal or impeachment evidence. Jones v. Atkins, 120 Ga. App. 487, 490-491 (171 SE2d 367) (1969); Kamensky v. Stacey, 134 Ga. App. 530, 532 (215 SE2d 294) (1975); Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 378-379 (274 SE2d 761) (1980). A refusal to postpone a trial under these circumstances would subject the party against whom the witness testifies to prejudicial surprise and would constitute an abuse of discretion requiring the grant of a new trial. Jones, 120 Ga. App. at 491; Hanna, 156 Ga. App. at 379.
GM has demonstrated that Dr. Townsend was a critical expert witness whose opinion testimony it did not know about or have means to know about until two days before the trial. Although GM was able to depose Dr. Townsend prior to the trial, under the circumstances of this complex products liability case, two days was not a reasonable amount of time prior to trial to check the facts and opinions to which the witness intended to testify and arrange to secure rebuttal or impeachment evidence. The record shows prejudice suffered by GM as a result of inadequate time to prepare a rebuttal to Dr. Townsend’s testimony. It was not necessary for GM to show what further discovery or other efforts it might have made with the additional time it sought by continuance of the case, or what these efforts might have revealed, since GM likely did not know. Danforth v. Danforth, 156 Ga. App. 236, 238 (274 SE2d 628) (1980). Because the trial court abused its discretion in denying the motion for a continuance, GM is entitled to a new trial.