STARK & STARK, A Professional Corporation Mailing Address: PO Box 5315, Princeton, NJ 08543 Office Location: 993 Lenox Drive, Lawrenceville, NJ 08648 (609) 896-9060 Bruce H. Stern, Esquire, Attorney ID#: 01483-1981 Attorneys for Plaintiff(s)

Plaintiff, SUPERIOR COURT OF NEW JERSEY COUNTY DIVISION vs. Docket No. CIVIL ACTION Defendants. BRIEF

I. THE COURT SHOULD PERMIT THE PARTIES TO USE DEMONSTRATIVE TO ASSIST THE JURY DURING TRIAL.

During the trial, the parties will seek to use demonstrative evidence designed to digest the large volume of , documents, regulations, policies and statutes that the jury must absorb during trial. Plaintiffs’ demonstrative evidence will promote judicial economy and efficiency, streamline the case, and assist the jury in understanding evidence, by focusing the jury on key and evidence.

New Jersey law fully supports using demonstrative aids where they are helpful to the jury’s understanding of the case. Plaintiffs intend to use only those portions of the demonstrative aids appropriate at each phase of the trial- opening statements, testimony and closing arguments. All of the evidence referenced on the boards will be at trial and bears directly on Plaintiffs’ high . There is no danger of unfair prejudice or misleading the jury. There is nothing on Plaintiffs’ individual boards that Plaintiffs’ counsel

could not create during trial by drawing the image with markers on an easel or saying during opening.

A. New Jersey Law Permits Using Demonstrative Evidence.

There are three basic types of evidence admitted into court: (1) testimonial evidence; (2) ; and (3) demonstrative evidence. There is nothing inherently improper with demonstrative or illustrative evidence." State v. Scherzer, 301 N.J.Super. 363, 434,

694 A.2d 196, 230 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997); see State v.

Feaster,156 N.J. 1, 82, 716 A.2d 395, 435-36 (1998); State v. Raso, 321 N.J.Super. 5, 19,

728 A.2d 231, 239 (App.Div.), certif. denied, 161 N.J. 332, 736 A.2d 525 (1999).

Demonstrative or illustrative evidence may be evidence that replicates the actual physical evidence, State v. Scherzer, supra, 301 N.J.Super. at 434, 694 A.2d at 230, or demonstrates some matter material to the case, State v. Gear, 115N.J.Super. 151, 153-54,

278 A.2d 511, 512 (App.Div.), certif. denied, 59 N.J. 270, 281 A.2d 532 (1971), or illustrates certain aspects of an expert's opinion. State v. Raso, supra, 321 N.J.Super. at 19, 728 A.2d at

239. It is for a visual aid — "a model, diagram or chart used by a to illustrate his or her testimony and facilitate jury understanding." Macaluso v. Pleskin, 329 N.J.Super. 346, 350,

747A.2d at 833 (App. Div.), certif. denied, 165 N.J. 138, 754 A.2d 1214 (2000).

B. Demonstrative Evidence May be Used During Opening Statements

The opening statement is intended to inform the jurors concerning the nature of the action, the issues and the questions of fact involved so that the jurors' minds will be better prepared to understand the testimony. Farkas v. Board of Chosen Freeholders of County of

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Middlesex, 49 N.J. Super. 363, 367-368 (App. Div.1958). Reference to matters which are admissible in evidence, and which are subsequently received in evidence, may aid this purpose.

Using demonstrative evidence in opening and closing violates no court rule or case law.

Cf. Cross v. Robert E. Lamb, 16 N.J. Super. 53 (App. Div. 1960) and Renzo v. Jacobs A-2890-

96T5, (App. Div. 1997). New Jersey has a long-standing tradition of allowing attorneys to introduce demonstrative evidence in opening when the proffered demonstrative evidence aids the jury in understanding relevant aspects of their case. Cross v. Robert E. Lamb, supra.

(plaintiff’s use of blackboards and other demonstrative aids to illustrate damages are permissible and are frequently used by trial counsel). The Appellate Division held that the law in the State of New Jersey is that “anything which counsel has the right to argue or a legitimate interpretation thereof, or an inference from the evidence, he is free within the discretion and control of the trial judge to write down upon the blackboard, and conversely what counsel may not argue, he may write on the board.” Cross, supra. at 56. The Appellate Court has held that the use of demonstrative evidence is generally accepted and the only limitation is the discretionary supervision of the Trial Court. Id. at 73.

In a later unpublished decision, the Appellate Division reaffirmed its holding demonstrative evidence is permissible during Plaintiff’s opening statement and closing argument. See Renzo v. Jacobs, A-2890-96T5, 4 (App. Div. 1997) (Exhibit A). In Renzo, the

Appellate Division held that attorneys may use demonstrative evidence in opening statements if the proffered evidence is relevant, pertains to the merits of the case and is approved by the trial court judge. Id. at 4. Further, the Court reasoned that the trial court should permit

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demonstrative evidence at trial if the proffered evidence is not misleading, pertains to the subject matter testimony in the case and is helpful in explaining the controversy to the jury. Id. at 4. The Appellate Division found no error in the trial judge's allowing defense counsel to rely upon x-rays and visual aids during his opening statement.

By way of further support, the Missouri Supreme Court approved of exhibits in opening statements in Reese v. Fife, 279 S.W. 415 (Mo. 1925). There, plaintiff sued defendant for libel.

In plaintiff's opening statement, his counsel read, over defendant's objection, about 20 letters defendant had written to his sister which contained the statements plaintiff claimed were libelous. These exhibits were later admitted in evidence. On appeal, defendant contended it was reversible error for plaintiff's counsel to read letters in opening statement which had not yet been introduced in evidence. The Supreme Court affirmed the judgment against defendant, holding it was within the trial court's discretion to permit plaintiff's counsel to use these exhibits in opening statement. Id. at 424.

Using exhibits and recorded deposition testimony in opening statements should be permitted here because it would aid the jury in understanding both the nature of the case and the specific evidence the parties intend to adduce to support their respective positions. No party would be prejudiced by permitting using exhibits in opening statements. If either party makes use of exhibits in opening statement not admitted in evidence, the jury will be reminded of that fact in closing arguments. Any party who uses exhibits in opening statement not admitted in evidence runs the serious risk his failure of proof will come back to haunt him when the jury retires to deliberate. Therefore, using exhibits in opening statements will be

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regulated not only by the Court's ability to supervise using particular exhibits during opening statements, but also by the parties' desire to maintain credibility with the jurors by not showing them any exhibits in opening statements not admitted in evidence later in the trial.

Plaintiff’s counsel may use demonstrative evidence in his opening statement. The demonstrative evidence will be in medical illustrations, blowups of certain medical records, photographs, a timeline and/or other aids, which will be helpful in explaining the matter to the jury.

As long as this Court does not find the evidence objectionable, there is no reason to bar using demonstrative evidence in counsel’s opening statement or closing argument.

C. The Demonstrative Evidence Does Not Contain Inadmissible

Plaintiffs anticipate that the Defendants will object to the demonstrative aids on the grounds they contain inadmissible hearsay. The Plaintiffs have been very careful in constructing the demonstrative aids to ensure inadmissible hearsay is not included. Any evidence that may be hearsay included in the exhibits is soundly excluded from the rule against hearsay by the exceptions to the hearsay rule in N.J. Evid. 803. The Defendants’ own comments during their depositions admit party-opponents, admissible under 803(25). Further, the Defendants will be afforded the opportunity to testify regarding their own statements at the time of trial, curing the credibility concerns that establish the rule against hearsay. Plaintiffs’ Demonstrative Aids must not be precluded based on the Defendants’ hearsay concerns.

E. Using Demonstrative Evidence of Standards and Professional Literature is Appropriate

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The Defendants will likely object to the Demonstrative Evidence used during the testimony of plaintiff’s experts. Throughout their reports and proposed testimony, plaintiff’s experts properly and appropriately rely on standards, regulations, and credible literature in forming their opinions. Reference to these sources is included in portions of the demonstrative evidence displays.

If published material is authoritative and relied upon by experts in the field, although it is hearsay, an expert may rely upon it in forming his opinion; it would be unreasonable to suppose that an expert’s opinion would not depend upon the body of works preceding it. New

Jersey courts have permitted identification of textual materials (and their contents) on to permit an to fairly explain the basis for his reasoning. Plaintiff is not using the demonstrative exhibits standards, regulation, and literature as substantive evidence, for the truth of the matter asserted. Rather, because, this is a complicated subject, the experts seek to use these texts to help explain their opinions. This case involves complicated evidence beyond the knowledge of the lay juror. Using this literature helps to explain to the jury how the experts formulated their opinions, and helps to communicate this opinion to the jury so the jury will understand. Such use of these demonstratives is proper and permitted under the New Jersey Rules of Evidence, and does not constitute inadmissible hearsay.

F. The Demonstrative Evidence Is Not Unfairly Prejudicial

The Defendants’ potential objections based on unfair prejudice are without merit. Plaintiff has the burden of proof regarding each cause of action against every defendant. Plaintiff must

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be permitted to present his case in a manner of their choosing, consistent with the New Jersey

Rules of Evidence and case law.

The Defendants’ policies and procedures, and declarations of their own employees are critical evidence to the Plaintiff’s case. Plaintiff must be permitted to use this evidence, and as there is so much evidence, the demonstrative aids, to assist the jury in understanding the evidence.

The demonstrative aids are comprised in large part on the documents and testimony of the

Defendants themselves. The Defendants must not be permitted to complain their own admissions are unfairly prejudicial.

To preclude evidence, the Defendants must prove the evidence is unfairly prejudicial, not merely prejudicial. Relevant evidence may be excluded when its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. N.J.R.E. 403.

Under Rule 403, “unfair prejudice” means an undue tendency to suggest a decision improperly.

The demonstrative aids will not influence the jury to decide an improper basis. Often the most highly probative evidence is highly damaging and therefore, prejudicial in a superficial sense of the word. However, this does not mean that the evidence may be excluded as unfairly prejudicial. The evidence is admissible because it is directly relevant and probative of the substantive issues involved. Plaintiffs’ demonstrative boards, which pull together the various pieces of evidence, are supported by evidence and permissible during all stages of the trial.

Respectfully submitted

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______

Bruce H. Stern, Esq.

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