Bache v. Gilden

Do You Have to Ask for a Continuance to Object to a Surprise Witness in Montana? Bache v. Gilden, 252 Mont. 178, 827 P.2d 817 (1992)

Boland Aarab PLLP

No. In Bache v. Gilden, 252 Mont. 178, 827 P.2d 817 (1992), the Montana Supreme Court unanimously held that letting a witness testify who was not on the pretrial order, and whom the plaintiff could not depose, was an abuse of discretion that required a new trial. The Court overruled Sikorski v. Olin and Barrett v. Asarco to the extent they held that failing to request a continuance waives a surprise-witness objection on appeal.

Key Takeaways

• The purpose of the pretrial order is “to prevent surprise, simplify issues and permit counsel to prepare for trial” on the basis of that order (Bache, 252 Mont. at 182).
• Allowing an undisclosed witness to testify, when the other side learned of him only a week before trial and could not depose him, caused surprise and prejudice and was an abuse of discretion (252 Mont. at 181–82).
• Sikorski v. Olin (1977) and Barrett v. Asarco (1988) were overruled to the extent they required a continuance request to preserve the objection (252 Mont. at 182).
• A lay witness who testifies from personal knowledge is not an undisclosed expert, and his opinions may come in under M. R. Evid. 701 (252 Mont. at 183).

In this case sheet: At a glance · What the Court held · What changed · Statutes · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Bache v. Gilden?

On November 29, 1989, John Bache was driving a loaded gravel dump truck down a snowpacked, icy logging road outside Libby. James Gilden was coming the other way in an empty dump truck. They met on a sharp, narrow curve where there was essentially one lane (252 Mont. at 179–80). To avoid a head-on collision, Mr. Bache drove over the bank, a drop of about 15 feet. He claimed Mr. Gilden was negligent and had an “avenue of escape”; Mr. Gilden said a low-speed head-on collision was the least dangerous option (252 Mont. at 180). The jury returned a defense verdict (252 Mont. at 179).

The width and shape of the road were central. The defense had named one person as its foundation witness for a survey of the scene, and the pretrial order did not list the man who actually prepared the survey. Mr. Bache learned who he was, and first received the survey, only about a week before trial, and could not depose him (252 Mont. at 181). The trial court let him testify over an objection of surprise and prejudice. Mr. Bache did not request a continuance (252 Mont. at 181).

The Supreme Court reversed:

• Surprise and prejudice. The defense “should have communicated” that the surveyor, not the listed witness, would testify. The late disclosure and lack of a deposition caused surprise and prejudice, and such tactics “are contrary to the letter and spirit of all pretrial discovery” (252 Mont. at 182, quoting Krueger v. General Motors).
• No continuance needed. The Court overruled Sikorski and Barrett “to the extent” they treated the failure to request a continuance as a waiver of the right to claim error on appeal (252 Mont. at 182).
• New trial. Allowing the witness to testify was an abuse of discretion, requiring a new trial (252 Mont. at 182).
• Guidance on retrial. A second witness who testified only from personal knowledge was not an undisclosed expert, and any opinions he gave were admissible under Rule 701 (252 Mont. at 183). The Court noted that objections must be timely, specific and on the correct grounds, but did not decide whether the objection to the survey itself met that test (252 Mont. at 182–83).

What did Bache v. Gilden change in Montana law?

Bache removed a procedural trap. Before it, under Sikorski and Barrett, a trial lawyer surprised by an undisclosed witness had to ask for a continuance at trial or risk losing the issue on appeal. After Bache, a timely objection on grounds of surprise and prejudice preserves the issue (252 Mont. at 182).

It is also regularly quoted for the purpose of the pretrial order. Later Montana Supreme Court decisions citing Bache include Nentwig v. United Industry, Inc. (1992), Zimmerman v. Robertson (1993), Travelers Indemnity Co. v. Andersen, 1999 MT 201, Perdue v. Gagnon Farms, Inc., 2003 MT 47, and Ganoung v. Stiles, 2017 MT 176, which quotes its statement of the pretrial order’s purpose.

Which Montana laws and rules apply?

• M. R. Civ. P. 16: pretrial conferences, scheduling and management. The current rule was adopted by Supreme Court order effective October 1, 2011, long after Bache.
• M. R. Civ. P. 26: general provisions on discovery, including the duty to supplement responses (background; the opinion discusses the defendant’s promise to supplement its witness list at 252 Mont. at 180–81)
• M. R. Evid. 701: opinion testimony by lay witnesses (252 Mont. at 183)

When might Bache v. Gilden apply to you?

• A new name appears on the eve of trial. The other side calls a witness who was never listed in the pretrial order and whom you had no chance to depose.
• A key exhibit arrives late. A survey, diagram or reconstruction is produced shortly before trial, prepared by someone you did not know about.
• A crash case that turns on the scene. In road and trucking cases, measurements of width, grade and curve can decide fault, so who prepared them and when they were disclosed matters.

The objection still has to be made at trial, and it has to be specific. Bache made clear that the objection, not a continuance request, is what preserves the issue (252 Mont. at 182).

How hard is it to win a new trial over an evidence ruling in Montana?

These appeals are hard to win:

• Abuse of discretion. Rulings on admissibility and the control of discovery are within the trial court’s discretion, and the Supreme Court will not reverse absent an abuse of that discretion (252 Mont. at 181).
• Preservation. The Court considers only objections that were timely, specific and based on the correct grounds (252 Mont. at 182–83).
• Prejudice. Bache succeeded because the undisclosed testimony went to a central issue, the road’s width and configuration, and the plaintiff had no chance to prepare for it (252 Mont. at 181–82).

The Boland Aarab Way

Thomas E. Boland represented Mr. Bache in this appeal and won a new trial. The appeal did more than help one client: it persuaded the Court to overrule two of its own precedents and remove a trap for trial lawyers. Tom practiced in Great Falls from 1979, after his admission to the bar in 1974. His daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP in 2017 as the successor to his practice. This was a trucking case, and the lessons about pretrial orders, disclosure and scene evidence still apply in the serious trucking and injury cases and catastrophic injury cases the firm handles today. When you hire Boland Aarab, you work directly with the attorneys whose names are on the firm’s appellate opinions.

Frequently Asked Questions

What is the purpose of a pretrial order in Montana? To prevent surprise, simplify issues and permit counsel to prepare for trial on the basis of the order (Bache, 252 Mont. at 182, quoting Whitehawk v. Clark).

Do I lose my objection to a surprise witness if I don’t ask for a continuance? No. Bache overruled Sikorski v. Olin and Barrett v. Asarco to the extent they required a continuance request to preserve the objection (252 Mont. at 182).

Can a witness who was not listed as an expert give opinions? A lay witness may give opinions rationally based on personal perception and helpful to the jury under M. R. Evid. 701 (Bache, 252 Mont. at 183).

Work With the Practice Behind These Cases

The practice Tom Boland built continues today as Boland Aarab PLLP, a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Bache v. Gilden, 252 Mont. 178, 827 P.2d 817 (1992) (opinion PDF, CourtListener)
• Bache v. Gilden (1992), opinion text (CourtListener)
• M. R. Civ. P. 16
• M. R. Civ. P. 26
• M. R. Evid. 701

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.