It is established that the appropriate response from a surprised party who wishes to counter testimony is a request for a continuance, and the failure to request one precludes a claim of prejudice.
Plaintiff housecleaner filed suit against defendant homeowners, claiming their negligence caused her to be injured when she fell down their basement stairs. A jury found the homeowners were 85 percent negligent, and awarded the housecleaner damages. Defendant homeowners contended they were surprised at trial when one of the plaintiff housecleaner's treating physicians, who was also a designated expert, changed his medical opinion. The doctor testified that about an hour earlier he had been doing a literature search that revealed a person could have a diffuse axonal brain injury without having a very severe head injury that would make a person unconscious for days or hours. He testified he had not known that before. Following the entry of judgment in the District Court in favor of defendant, plaintiffs appealed. The appellate court affirmed.7
Did the trial court err in admitting the medical opinion in evidence?
We hold the trial court's decision not to exclude the testimony to be proper. It appeared the trial court did not conclude that this particular testimony presented a new theory of recovery. At trial the plaintiffs did not request a continuance, and this precluded a claim of prejudice. The basis for the decision is not in the record; however, it appears that the trial court did not conclude that this particular testimony presented a new theory of recovery. On appeal, the plaintiffs suggest surprise because the testimony provided evidence of a brain injury that they were unable to rebut with their own expert witness; however, at trial they did not request a continuance.