What do you do when you notice that a skilled nursing facility fails to care for your elderly family members? In New Jersey, you can file a nursing home abuse lawsuit against a negligent nursing home.
By invoking your legal rights and those of your elderly family member, your nursing home litigation case will likely result in a settlement compensating your loved one who suffered nursing home neglect.
Learn about the laws that protect your loved one in New Jersey. Also, read to the end to see what you can do.
The Nursing Home Abuse Law: What You Need to Know!
New Jersey law protects nursing home residents from elder abuse and neglect. It defines what constitutes nursing home abuse and neglect and outlines the standards that nursing homes must follow according to the New Jersey Nursing Home Act (NHA). The NHA contains standards of care that nursing homes and other assisted living facilities in New Jersey must follow in order to provide the best care for its residents.
Deviations from the NHA’s standards are evidence of neglect. A nursing home facility is liable for negligence and abuse if a resident sustains severe injuries or psychological and emotional trauma due to these deviations. The standards require the nursing homes to provide the highest practicable level of care for each resident.
After the discovery of neglect or abuse, the facility is required to investigate to determine the cause of elder neglect or physical abuse. The APS also checks an assisted living facility for health and safety hazards. If any hazards are present, victims can then file nursing home abuse lawsuits.
New Jersey’s statute of limitations is generally two years from the date of injury, but exceptions exist if the injury could not be discovered in time under the state’s “Discovery Rule.” Under this rule, the actual date of injury is different from its discovery. As a result, the two-year clock starts ticking on claims for severe injuries once the victims become aware of the harm done to them.
As a result, the rule may enable patients in New Jersey to file nursing home abuse cases even after the two-year statute of limitations. However, when filing legal claims, victims must prove that they couldn’t have been aware of the injuries.
How to Find Out Whether There Has Been Abuse and Neglect at a Nursing Home
Call our nursing home abuse attorneys if you notice any of the following signs of abuse and neglect in elderly patients:
Signs of physical abuse or neglect (bed sores, unexplainable bruises, broken bones, or severe injuries).
Signs of medical neglect (poor nutrition, dehydration, lack of medicine).
Signs of mental abuse or mental anguish, such as behavioral changes.
Financial abuse.
Signs of emotional abuse are shown by increased anxiety and behavioral changes.
Any of the above are grounds for you to suspect abuse and call an elder abuse attorney.
What To Do: Call a Nursing Home Abuse Attorney!
When you notice any signs of neglect or abuse, call a nursing home negligence lawyer. Nursing home lawyers can ensure successful nursing home abuse litigation by establishing negligence on the part of the nursing home staff members and the facility. Also, with a personal injury law firm with elder law experience, you can get financial compensation for medical expenses and other damages.
Who to Contact!
Anyone thinking of suing nursing homes for neglect and abuse must seek help. If you’re looking for an experienced attorney with a proven track record of protecting seniors from abuse and medical malpractice cases, call our nursing home abuse lawyers at Rossetti, DeVoto, PC.
Seek justice and reach out at (856) 475-8261 to learn how we can help you and your loved one.
According to the World Health Organization, one in six people over the age of 60 suffered neglect and elderly abuse — that’s around five million older Americans each year. Sadly, many cases are not reported to the correct authorities. Moreover, many cases of abuse happen inside nursing homes, where our elderly loved ones are supposed to feel safe and cared for.
Our skilled nursing home abuse lawyers have helped countless families seek justice and compensation for the horrors their loved ones went through.
What is Nursing Home Abuse and Neglect?
Nursing home abuse is a form of abuse or neglect committed against elderly nursing home residents. Abuse often involves violence and physical or mental harm. Meanwhile, negligence generally results from failure to properly care for and attend to the nursing home resident’s needs. Residents in New Jersey nursing homes have laws to protect them called Resident’s Rights. When the rights of residents are violated by the nursing home, the results are often catastrophic and can lead to serious injury and death.
Individuals who experienced elder neglect or abuse as a nursing home resident can seek legal action and financial compensation with the help of a nursing home abuse lawyer.
Kinds of Abuse in an Elderly Assisted Living Facility
There are different ways that nursing homes can inflict abuse on their residents. Consulting a nursing home abuse attorney can help confirm suspicions of neglect or elder abuse. Nursing home lawyers can also provide more insight into the types and warning signs of abuse to improve your case. These include:
Physical abuse or neglect: This type of abuse generally involves violence, restraints, or punishments resulting in serious injuries. Common physical signs of nursing home abuse include fractures, falls, dehydration, malnutrition, and bed sores.
Mental, emotional, or psychological abuse: Verbal examples of psychological abuse include insulting, guilt-tripping, and intimidating or threatening patients. Non-verbal neglect can include isolating residents from others, giving them the “silent treatment,” or withholding food, water, and other essentials.
Sexual abuse: Although women are more likely to experience it, elderly sexual abuse happens to both men and women. It can be in the form of rape, forced nudity, unwelcome intimate touches, or taking sexually explicit photos and videos.
What to do in Case of Nursing Home Neglect?
If you suspect an elderly loved one is suffering from nursing home negligence or abuse, make sure to contact the authorities. Local police and emergency services can offer immediate assistance for suspected severe or dangerous elder abuse cases.
It’s essential to report nursing home neglect as soon as possible to prevent worse outcomes and ensure the residents’ safety.
Contact Rossetti & DeVoto, PC
You need more than just medical records to win your case if you want legal action. You will need the help of an experienced lawyer because nursing home abuse cases can be complex and sometimes challenging to prove in a court of law.
Getting in touch with a trusted and capable legal firm will help you strengthen your nursing home abuse lawsuit. Rossetti & DeVoto, PC has a team of experienced and knowledgeable nursing home abuse attorneys to aid in receiving your just compensation.
Call 856-475-8261 today for a free consultation with an experienced nursing home abuse lawyer.
We are living in unprecedented times with the COVID-19 pandemic. All of us, employers included, are trying to figure out how to navigate living a normal life. Luckily, a New Jersey workplace injury lawyer is here to solve your problems.
Many companies are having to get used to using software such as Wandera to help them find a secure way of working from different locations. Software like this allows employees to access work-related documents and programs from home. All this while using a safe server and avoiding cyber-attack. Furthermore, Wandera and similar services offer a zero-trust platform. This means these employees must use a password or code to access these work files. Working from home has never been safer. Some employees are now comfortable in their working from home routine. So, they don’t feel too excited about returning to the office. However, employers often prefer having their workers altogether in one office so many have begun sending out a COVID-19 Return to Office Memo to encourage workers to return.
Finding ways to return to a normal workday is proving one of the most difficult. Many people have reason to stay home; from their own and loved ones’ health issues to having small children whose schools are not in person. Employees would like to be able to choose when they physically return to work. However, it may ultimately be out of the employees’ hands. The employer is typically the one to make the decision on when the employees return to work. And Rossetti & Devoto, PC is a New Jersey workplace injury lawyer who can help you figure out what your employer can and cannot do in these strange times.
In most instances, if an employer wants you to return to work, you have to listen to them. There are certain situations, however, where there may be grounds for you to work from home instead. As a New Jersey workplace injury lawyer, we want to make sure you are aware of your options.
Are You an Essential Worker?
If you are considered an essential worker, and each state has a different definition, there are some of the few ways for you to be able to get time off would be if you were sick. For instance, if you are exposed to the virus. Or, if you are covered by the Americans with Disabilities Act or the Family and Medical Leave Act.
Coverage by the two acts applies to all employees. If you believe you are at a high risk of contracting the virus, look to see which medical conditions are covered under the Americans with Disabilities Act. The act covers many conditions that qualify a person as high risk. You may want to talk to your doctor about your health risks as well. If you are unsure, talking to a New Jersey workplace injury lawyer is a way to confirm or deny whether or not you qualify. Additionally, you will personally want to have extra precautions put in place for yourself. Especially if you do need to go back to work. For example, wearing a suitable and protective face mask. You can click here now to see what face masks you can get and which ones will be more suitable for the area that you work in.
Do You Have a Contract?
If you have a contract with your employer, they may be able to force you to come back to work as per the contract. You are under no legal obligation to go back to work, however, if your workplace is unsafe. A workplace that is not Covid-secure is in breach of health and safety regulations. That workplace is therefore unfit to be a workplace. This could be down to a few things, such as no social-distancing measures in place, or no provision of PPE. Talk to your employer about how you feel they could improve their safety measures, maybe consider looking at SciQuip’s range of PPE, to see if you can come to an agreement. If your employer is refusing to provide adequate safety measures, you should then talk with a New Jersey workplace injury lawyer to see what you can do.
The Families First Coronavirus Response Act was recently passed. This gives a longer leave for employees working at a company that has less than 500 employees in the event that you need childcare because of COVID-19 closings or they have been ordered by a healthcare provider to quarantine or they are caring for someone who must quarantine as a result of the virus.
Making an Appeal
You can also appeal to the Occupational Safety and Health Administration (OSHA) or the National Labor Relations Board (NLRB) if you feel as though your workplace is unsafe as a result of COVID-19.
The problem with both of these options is that you need concrete evidence. For instance, evidence that there are ways you are directly in danger by COVID-19 at your place of work. If you are unsure about certain circumstances that you have faced, contact a New Jersey workplace injury lawyer. You should speak with them about whether or not this would qualify under OSHA or NLRB.
Contact Rossetti & DeVoto, PC, Today
If you are being forced back to work by your employer, it is important that you speak to an experienced workplace attorney about your situation. Call the office of Rossetti & DeVoto, PC, today to schedule a free case evaluation at 856-354-0900.
Personal injury cases seldom escalate to a jury trial. However, when they do, it’s often in the presence of a trial judge and an unbiased jury.
In the United States, the right to an impartial jury — the Sixth Amendment — is a right observed throughout the country. Impartial jurors are instrumental in adjudicating criminal prosecutions and civil cases. Without an impartial jury drawn from various parts of the community, jury bias can occur, resulting from a trial court’s error.
Learn more about jury impartiality and the importance of impartial jurors in a trial judge’s consideration.
What is Impartiality?
Impartiality is the collective and individual capacity of the petit jury to come to an unbiased verdict. Impartiality is synonymous with fairness. Jury impartiality is an essential condition that facilitates a speedy and public trial.
What is an Impartial Jury?
It’s hard to define jury impartiality without looking at what trial courts and litigants look for in a prospective juror. Prospective jurors must be from different community sectors and backgrounds, per the fair cross-section requirement of the Sixth Amendment. Also, jurors are considered impartial if they can decide on a verdict based solely on presented evidence for or against criminal defendants.
Why is it Important to Get an Impartial Jury?
A jury that’s impartial provides a speedy and fair trial. The jury helps trial court judges decide the defendant’s verdict. Unlike a biased jury, an impartial jury maximizes the chances of a court decision being unmarred by personal bias.
How is a Jury Selected?
The jury selection process begins with random pooling. The pool of jurors comes from the registered voter list. Courts can select and examine potential jurors from the list who will make up the jury panel or “venire.” A prospective pool of individuals will undergo a series of questions conducted by the judge and attorneys. In negligence cases, the parties will select 6-8 jurors from the pool that they feel can be impartial and fit for jury service.
However, judges can exclude those most predisposed to bias based on conflict of interests. Lawyers may also exclude members of the jury panel from participating in jury duty for no reason whatsoever. When lawyers or judges do this, they invoke their right to a peremptory challenge. Each party gets six of these exclusions.
How Can You Ensure the Jury is Impartial?
It can be challenging to ascertain the impartiality of your trial’s jurors. However, you can size up the objectivity of a jury by looking at who comprises it. In particular, you can look for diversity.
Jurors must come from a cross-section of the community. When you can see an assortment of individuals from different backgrounds, there’s a good chance that the trial judge and attorneys did their utmost to ensure fairness in the selection process.
Of course, there’s no way to fully ascertain if a jury is unbiased. To determine impartiality, you need the counsel and representation of someone who was also present during the juror selection — your lawyer.
Contact Rossetti, DeVoto
In the same ways impartial juries represent their communities, our New Jersey attorneys are here to represent you. If you need assertive legal representation in New Jersey, reach out! Call us at 856-475-8261 to request an initial consultation.
There is no greater loss than the death of a loved one. And there can be no greater honor than to have the trust of a family that needs answers. We understand the long term effects that a accidental death will have on a family and we know the stakes are high. There is no margin for error in holding those accountable for your losses. We promise to find out what went wrong.
Representing families that have lost their loved ones requires experience, tenacity, and talent. Our team of talented and compassionate lawyers know how to get the job done. We have an outstanding track record of success, we care about our clients and will fight for you the same way we would fight for members of our own family. Until the end! Until it’s right.
What is The Wrongful Death and Survival Act?
Every state in the country has enacted a Wrongful Death Act and Survival Act to protect victims whose lives are lost from negligent and careless acts. The Survival Act allows recovery of damages from the time of the harm until death. The Wrongful Death Act allows the heirs to recover damages and losses inflicted upon them because of the death of their loved one. Unfortunately, all states view damages recoverable from death differently. Some states allow more and some less. Below are some answers to questions you may have about New Jersey’s Wrongful Death and Survival Act.
What Damages Are Recoverable Under The Survival Act?
In New Jersey, the survival action allows recovery for the deceased person’s injuries from the time of the incident until death. These damages may include:
Conscious pain and suffering
Medical bills up until death
lost wages from the time of injury up until death
Punitive damages may also be recoverable depending on the case
Any proceeds recoverable under this part of the case will get distributed to the heirs in accordance with the deceased person’s will. If there is no will, there is a law which determines how much each heir can recover.
What Damages Are Recoverable Under The Wrongful Death Act?
The wrongful death action is the part of the case that allows the surviving family members to recover for their losses that are associated with the death. These losses typically include the economic value of the loss of guidance, advice, and support as well as lost companionship and security. Lost wages are also recoverable. However, the mental anguish for losing a loved one is not recoverable under New Jersey law. Some examples of these economic losses are:
Lost earnings and wages of the deceased person
Lost care, guidance, advice and support
Lost inheritance in some states
Funeral expenses
Hospital expenses incurred before death
Lost companionship
Lost value of household chores
NOT RECOVERABLE: emotional grief, mental anguish, for losing a loved one
Who Can File A Wrongful Death Act and Survival Act Lawsuit in NJ?
The Survivor Act claim (pain and suffering of the decedent) is brought by the Executor if a person dies with a Last Will or the General Administrator of the Estate if a person dies without a Last Will.
The person authorized to bring the Wrongful Death claim is the Executor if the person died with a will or the Administrator ad Prosequendum if the person died without a will.
How Do You Get Appointed General Administrator?
Every County has its own rules on how to apply for Administration if your loved one died without a Last Will. We will guide you through the application process and assist every step of the way. The part of the court system that deals with appointing Administrators is called the Surrogate. The Surrogate’s office is usually located in or next to the county courthouse. In general, the spouse of a deceased person typically has the first right to be appointed. When a child passes away, the parents typically have the first right to be appointed. In situations where there are multiple persons of the same class (children of a deceased parent) the court will usually only appoint one sibling to act on behalf of all siblings and it is preferable if the siblings can all agree as to who that will be. Being appointed Administrator does not entitle a person to a greater share of any recovery because of that role.
Who Is Entitled To Recover Damages In A Survival Act and Wrongful Death Act Case In NJ?
In the survival claim, the proceeds are distributed in accordance with the Last Will of the decedent. If there is no will, the proceeds are distributed in accordance with the laws of New Jersey for persons who die without a will. The distribution of money will depend on who is left surviving the deceased person.
In wrongful death cases, the person’s most likely to recover are those who were dependent on the deceased person. That is usually the spouse, children, parents, etc. of the deceased person. Others may be entitled to recover depending on the facts of each case. At the end of a case, unless there is agreement by the heirs, a judge will decide how to apportion the money between the heirs based on who was most dependent on the deceased person.
Are There Time Limitations?
Generally, a Survival Act lawsuit must be filed within two years of the incident that caused the injury that led to the death. The Wrongful Death Act must be filed within two years of the date of death. Those dates may be the same but they may also be different. And exceptions apply to these general rules and each factual situation varies so you must see an attorney if you want specific advice on when to file a lawsuit.
What Immediate Action Should Be Taken?
If you believe that you may have a wrongful death case, please contact us immediately. You should insist on an autopsy if there is any dispute as to the cause of death, especially in medical malpractice cases. If the hospital refuses, you have the right to order a private autopsy.
The Rossetti DeVoto Advantage
We are big enough to inflict some serious damage on defendants as you can see from our verdicts and settlements, but small enough to be nimble and move quickly. When you hire us, you get immediate action. Investigators, safety experts, engineers and accident reconstructionists are all hired immediately. Evidence is preserved and site inspections undertaken. Simply put–your case gets off to the right start and great things seem to always flow from the evidence that we obtain in those crucial moments after an accident. Not all law firms can do that. They simply have too many lawyers, too many cases and too much going on. To be sure, there are times when its just impossible for family to retain a lawyer immediately after an accident. Not to worry, we will do everything in our power to protect you as best as we can, including filing emergent actions in court to preserve important evidence before it is destroyed.
ROSSETTI & DEVOTO, P.C. has successfully handled many wrongful death cases in New Jersey and Pennsylvania. Please call us for a free consultation to discuss your case. In the meantime, if you would like to learn more about your rights and New Jersey’s Wrongful Death Act and Survival Act please go to our question and answer section or read Andy Rossetti’s article on wrongful death in New Jersey.
To learn more, click here to read the Wrongful Death FAQs
Results may vary depending on your particular facts and legal circumstances
$7.1 Million settlement for the wife and children of a man who was tragically killed when a tractor trailer driver crashed into the family car on the NJ Turnpike. Andy Rossetti represented the family. – One of the Top 20 Personal Injury Awards of the Year in New Jersey.
$2,225,000 settlement paid by the City of Camden for deaths of three children who died as a result of a negligent police search after the children went missing. Andy Rossetti represented one of the families.
$2.3 Million Jury Verdict by a Camden County Judge to a 29-year-old Sewell, New Jersey mother and her 5-year-old daughter for damages arising from the death of their husband/father. The wife was only 24 years old and pregnant with the couple’s first child when her husband was killed in a car crash. Another driver disregarded a stop sign and a red flashing light and collided into his van at 50 mph. Lou DeVoto represented the mom and her young daughter. One of the Top Settlements of the year in New Jersey.
$1.85 Million settlement against the City of Camden for the family of a murder victim after the City negligently misplaced a 911 call and failed to respond to a violent crime in progress. Andy Rossetti represented the family.
$1.5 Million medical malpractice settlement for the widow, of a 43 year old man, who died after being negligently treated by a doctor and nurse at a South Jersey hospital in January 1999. Lou DeVoto uncovered grave medication errors made by a nurse and pulmonologist at a South Jersey hospital which caused the death of the man.
$— Confidential Medical Malpractice settlement against Hospital of University of Pennsylvania for wrongful discharge and death of patient leading to infection and death. Lou DeVoto represented the family.
$850,000 product liability settlement after Mediation for wrongful death caused by the combination of unstable furniture and a front heavy television. Andy Rossetti handled the case that uncovered widespread industry knowledge of the problem.
$950,000 medical malpractice settlement for our client who died from the failure of a rehabilitation hospital to position a feeding tube correctly resulting in a massive infection, sepsis and eventual organ failure. The defendant’s denied liability claiming that the patient was compromised before the feeding tube mishap claiming that the incident was not the cause of the death. Lou DeVoto represented the family.
$900,000 settlement for the wrongful death of 75 year old women who was injured and died of a head injury after she tripped over negligently located parking bumpers in a South Jersey shopping center. Lou DeVoto represented the family.
Law enforcement officers have been under scrutiny following a string of killings in recent years. The killings where community members were shot and killed. Many experts describe this as an extreme use of excessive force. While the criminal proceedings have made headlines, the civil suits have been quietly settled in many of these cases. But how is a family compensated when a loved one is wrongfully killed due to police brutality or negligence?
New Jersey Wrongful Death and Survival Acts
Suits seeking damages for wrongful death and those at the hands of police are subject to two different Acts under New Jersey law; The Wrongful Death Act and The Survival Act. Both Acts provide for the framework of allowable damages in cases involving a death.
The Survival Act allows for the recovery of pain and suffering to the deceased person. This is from the time of the wrongful act up and until the loss of consciousness. Its aim is to compensate the deceased person for his or her suffering. Furthermore, any recovery under this Act becomes part of the Estate of the deceased person. And, it is distributed in accordance with their Last Will. Or, under State Law if there was no Will.
The Wrongful Death Act allows for the recovery of monetary losses to the legal heirs of the deceased person. In most cases, this typically includes the parents, spouse or children of the deceased. By monetary losses, the law allows for lost wages, funeral expenses and economic damages. For example, for the lost guidance and advice. In addition to support and companionship. All of which the decedent would have provided to the legal heirs had he or she been alive. However, New Jersey law specifically prohibits any recovery for the emotional loss suffered by the heirs; because of their loved ones’ death. This makes the computation of damages challenging in all death cases.
Damages
According to a year-long study by the Washington Post, the settlements for wrongful death by police claims vary wildly. The Post’s study, covering all police shootings in 2015, found that settlements for wrongful death cases ranged from $7,500 to $8.5 million. The median settlement is totally $1.2 million. The study also concluded that families who settled before going to trial collected far more than those who were awarded damages following a trial; with the average trial verdict around $500,000.
Because of the discrepancies and difficulties with claiming damages from state to state following a wrongful death, you should always consult with an experienced wrongful death attorney. This is in order to better understand the law. And, to better understand the likely outcome before filing any claims.
Wrongful Death by Police: A State or Federal Matter?
Whether wrongful death by police is a state or federal matter is really up to the individuals filing the suit. Plaintiffs may choose to either seek a state compensation claim or a federal claim. This depends on the circumstances of the case. If the plaintiffs, for example, want to seek a claim against an officer they feel acted either maliciously or negligently, they can file a suit in state court. If, however, they want to argue that the officer in question violated the civil rights of the loved one killed, they can file a federal claim.
A federal claim against a police officer must prove that the officer subjected the victim to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” as detailed under federal law. The burden of proof for federal claims, it should be noted, is higher than state claims. For state wrongful death claims, the burden of proof threshold relies on “the preponderance of the evidence.” For federal claims, however, there must be “clear and convincing” evidence. The evidence that the officer violated the civil rights of the victim.
Contact an Experienced New Jersey Wrongful Death Attorney
If a loved one was the victim of excessive police force or police brutality or police negligence – you need an experienced and knowledgeable attorney on your side. Rossetti & DeVoto, PC is willing to assist you through the process of getting you justice and in compensating you fully for your loss. Our New Jersey personal injury attorneys will relentlessly fight for your rights, and make sure you always come out on top. Call us today at (844) 263-6260 for a free, no-obligation consultation.
“What the ear may hear, the eye can see.” Dehanes v. Rothman, 158 NL 90,96 (1999).
I. INTRODUCTION TO DEMONSTRATIVE EVIDENCE
In fact, demonstrative exhibits and aids provide the means “[t]o clarify, to dramatize and to emphasize” critical evidence in a case. Mary Quinn Cooper, The Use of Demonstrative Exhibits At Trial, 34 TULSA L.J. 567 (1999) (quoting Celia W. Childress, Persuasive Delivery In the Courtroom 619 (1995)). While not always offered into evidence, such visual presentations usually include maps, models, charts, diagrams, graphs, photographs, films, videotapes, and summaries. See Id.
In using demonstrative exhibits, the trial lawyer must ensure that the demonstrative exhibits are not only affordable and appropriate, but most importantly, are acceptable to the court. “By thinking through the evidence and using innovative ways to make the evidence not only clear, concise, and interesting, but also exciting and persuasive, attorneys using demonstrative exhibits can increase the possibility of a verdict in their favor.” Id. at 578.
II. WHY USE DEMONSTRATIVE EXHIBITS?
1) In fact, a demonstrative exhibit focuses the jury’s attention in a way oral testimony alone simply cannot. a. Then, jurors are more likely to understand and retain information if attorneys engage more than one sense in communicating information. 2) Furthermore, demonstrative exhibits give attorneys added control over the presentation of the evidence. 3) Moreover, demonstrative exhibits may guide and assist an unintelligible witness. 4) Also, effectively using a demonstrative exhibit can throw opposing counsel off stride and bring the jury’s focus back to the evidence supporting a client’s position.
5) Lastly, demonstrative evidence can bring together various strands of evidence into a single piece that can assist the jury in seeing the big picture.
See Id. at 568-69.
III. OVERCOMING THE LEGAL HURDLES
Careful thinking is needed about issues relating to relevance, authentication and identification, substantive admissibility, and expert witness testimony before relying on a piece of demonstrative material. But, despite the preceding, the law on demonstrative evidence is not complicated. Moreover, it employs the same test as is used for admitting evidence by witness testimony. Therefore, relevant evidence is that which has a tendency in reason to prove or disprove a fact in issue. N.J .R.E. 401. Relevant evidence is admissible unless some exception such as undue prejudice applies. N.J.R.E. 402; State v. Dixon, 125 NL 223, 248-49 (1991). So, the basic inquiry is simply whether the proffered material will aid or assist the jury in its fact finding mission.
Furthermore, the most important point to remember in assessing demonstrative exhibits, whether offered into evidence or not, is the judge’s discretionary authority to admit or exclude the exhibit. In fact, the trial judge must balance the relevant demonstrative evidence against the prejudice of its admission. However, only if he is satisfied that the relevance outweighs the prejudice should the demonstrative evidence be admitted. Additionally, the trial judge’s discretion in performing this balancing function is wide. See United States v. Robinson. 560 F.2d 507 (2nd Cir. 1977), cert. denied, 435 U.S. 905.
A. R. 4:14-9(e)-Videotaped Deposition
In fact, an expert’s deposition taken pursuant to R. 4: 14-9(e), authorizes videotaping the deposition of an expert for use at trial. Moreover, a videotaped deposition authorized by R. 4: 14- 9 (e) may have a usage at trial in lieu of testimony whether or not the witness is available to testify.
However, an adversary cannot use a videotaped deposition over objection. “It would discourage the use of the [videotaped deposition] if an expert’s deposition could~ used substantively by the other side.” Genovesey. N.J. Transit RaiI Operations, Inc., 234 N.J. Super. 375, 381 (App. Div. 1989). Notwithstanding, the Court noted that there may be special circumstances justifying exceptions to the general rule but declined to articulate. See id.
1. Videotaped Deposition
In fact, the use of a videotaped deposition is permitted if it is relevant and authentic. See Blumberg v.Dornbusch, 139 N.J.Super. 433,438 (App. Div. 1976). So, the trial judge may use his sound discretion to determine whether a videotaped deposition is a fair, accurate, and undistorted representation of the witnesses’ deposition. See id. at 439.
B. Videotaped Testimony In Closing
It is within the trial court’s discretion to allow counsel to show portions of videotaped trial testimony and make comment thereon during summation. “[T]here should be no prohibition against showing actual portions of the videotape testimony.” Condella v. Cumberland Farms. Inc., 298 N.J. Super. 531,536 (1996). The Court noted that showing portions of videotaped testimony is: (1) at least as accurate, if not more accurate than reading portions of a written transcript; (2) more economical than obtaining a written transcript; and (3) more convenient than ordering a written transcript.
Pitfalls
However, there are a number of pitfalls that must be avoided when showing portions of a videotape including: (1) portions of the videotape testimony shown during summation “should not be so lengthy as to constitute a second trial emphasizing only one litigant’s side of the case”. (2) “[t]he court must exercise its discretion to limit the amount actually played by counsel during summation”; and
~ In Condella, the court permitted segments of the videotape to be shown that were no more than one or two minutes in length, and the total length was no more than ten minutes.
(3) “the court must take precautions to guard against the edited portions of the videotape misstating the evidence.” ~To eliminate this problem, “[t]he court, out of the jury’s presence should therefore view the proposed portions of the videotape testimony in open court on the record to make sure that it accurately reflects the evidence.”
(4) “[t]he court should have discretion to deny or limit the application to show portions of the videotape testimony if the time necessary to review the testimony would unduly delay plaintiff s closing, and thereby prejudice the defendant. ..”
Id. at 536-37. Phrased in another way, the court must “monitor what is shown and balance the benefits of showing the video against any possible prejudice to the other party.” Id. at 535.
Likewise, counsel may not replay videotaped portions of adversary counsel’s opening statement. This is because “[c]ounsel’s opening is not evidence.” Id. at 537.
C. Use of Blackboards/Large Charts (Graphic Aids) as Demonstrative Evidence
1. Use By Counsel During Closing
The Court generally approves the usage of blackboards/large charts at trial in explanation and specification. Moreover, the Court is subject to discretionary supervision of the trial court. In using a blackboard/large chart for purposes of argument, “anything which counsel has the right
to argue as a legitimate interpretation of or inference from the evidence, he is free, within the discretionary control of the trial court to write upon the blackboard[/large chart].” Cross v. Robert Lamb, 60 N.J.Super. 53,74-75 (App. Div. 1960). “Conversely, what counsel may not argue, he may not write on the board.” Id. For example, specific figures equating pain and suffering with specific amounts of money may not be written on any sort of graphic aid, for purposes of argument to the jury. See Id.; see also DeHanes, supra, 158 N.J. at 97 (“The value of pain and suffering is simply beyond the reach of science.”).
Moreover, there must be some evidentiary basis for figures placed on a blackboard/large chart. And, “[t]o minimize the possibility of prejudice the jury should be given to understand by the court as well as counsel that the figures written on the board [or chart] are not evidence.” Id.. Further, the blackboard/large chart should be in the jury’s view only during the argument in which counsel who has written the figures is discussing damages. See Id.at 76.
2. Use By Properly Qualified Experts
It is permissible to allow properly qualified experts to testify to the aggregate net sums of the economic losses that they have calculated. Moreover, it is also proper, subject to the same qualifications concerning cautioning the jury against uncritical acceptance, to allow experts to introduce into evidence the exhibits that they have prepared. See DeHanes. supra, 158 NJ.. at 103. Still, such evidence should be deemed inadmissible if the risk of undue prejudice substantially outweighs its probative value. See N.J .R.E. 403.
Furthermore, a jury’s common knowledge and experience is always available to help it assess whether an aggregate sum presented by counselor an expert represent fair and just compensation. See id. at 102. “Legitimate concerns arise only when the charts [or tables] are ‘an array of figures conveying a delusive impression of exactness in an area where a jury’s common sense is less available than usual to protect it.’” DeHanes, supra, 158 N.J. at 101 (quoting Herman Schwabe. Inc. v. United Shoe Machry. Corp., 297 F.2d 906, 912 (2nd Cir. 1962)). Moreover, it is wrong is for counsel to say that an expert’s evidence is undisputed.
3. Power To Admit Graphic Representations of Expert Testimony
In fact, a trial court has the power to admit into evidence a graphical representation of an expert’s testimony. See Fiorino v. Sears Roebuck and Co., 309 N.J.Super. 556, 570 (App. Div. 1998). Nonetheless, the trial judge’s power is discretionary in permitting the diagrams to go into evidence or in withholding them on the basis that the jury has seen and heard the expert, and the diagrams are merely cumulative evidence. See id. at 569. Realistically, sparing exercise of the power to admit graphical representations of expert testimony is preferable, and if it took place, should be done in a balanced fashion so that the opinions of an expert on one side of a case are not before the jury in graphical form, while the opinions from the opposing expert are left merely for the jury’s recollection. See id.
at 570.
Visual representation of an expert’s opinion may serve as an aid to the jury, unless the trial judge, from his unique perspective at trial, determines that admission will overemphasize the particular witnesses’ testimony. See Fried v. Aftec. Inc.. 246 N.J .Super. 245 (App. Div. 1991) (evidence in question was a visual representation of an expert’s opinion gleaned from his inspection of the books and records).
D. Admissibility of Motion Pictures
“[R]elevant motion pictures are generally admissible if properly authenticated.” Balian v. General Motors, 121 N.J. Super. 118, 125 (App. Div. 1972). Authentication of motion pictures ordinarily includes: (1) evidence as to the circumstancesurrounding, thegofthefilm; (2) the manner and circumstances surrounding the taking of the film; (3) evidence in regard to the projection of the film; and (4) testimony by a person present at the time the motion pictures took place that the pictures accurately depict the events as he saw them when they occurred.
Id. (citing 62 A.L.R.2d 686,692 (1958)).
E. Admissibility of Evidence of Experiments
In fact, admissibility of evidence concerning experiments or tests “would appear to be within the area of judicial discretion and turns on whether the experiment was conducted under conditions and circumstances similar to those actually occurring in the case.” Balian supra, 121 N.J. Super. at 126. Specifically, “such evidence is usually held competent if there is a substantial similarity between the conditions existing at the time of the occurrence complained of and when the experiments are made.” St. Paul Fire & Marine Ins. Co. v. Baltimore & O.R. Co., 195 N.E. 861 (Ohio Sup. Ct. 1935) (concerned with motion pictures of experiments). “[M]uch must be left to the discretion of the trial judge.” Id. at 864.
1. Admissibility of Motion Pictures of Experiments
A motion picture of an experiment is admissible when relevant and its probative value is not offset by undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues due to the introduction of collateral matters. See Balian, supra, 121 N.J. Super. at 127 (citing Stoelting v. Hauck, 32 N,J. 87 (1960)). The court also pointed out that despite a finding of substantial similarity between the experiment and the actual facts, a motion picture of an artificial reconstruction of an occurrence may be very weak evidence. See id. Therefore, the importance of the aforementioned off-setting factors cannot have enough emphasis.
In addition, cross-examination alone will not ordinarily provide a sufficient avenue of rebuttal with respect to motion picture evidence. See id. at 131. “Fundamental fairness dictates that party proposing to introduce into evidence motion pictures of a reconstructed event or a posed demonstration give notice thereof and opportunity to his adversary to monitor the experiment and the taking of the film.” Id.
2. Admissibility of Scientific Experiments
In fact, where there is a sufficient scientific basis to produce uniform and reasonably reliable results, the results of scientific tests are admissible. See Windmere. Inc. v. International Ins. Co., 105 N.J. 373 (1987) (citing Romano v. Kimmelman, 96 N.J. 66,80 (1984) (pertaining to criminal trials). Thus, in order to admit results of scientific tests, a demonstration that scientific technique has gained general acceptance within the scientific community shows the reliability of such evidence. Furthermore, upon showing that the scientific technique has gained general acceptance within the scientific community, courts will take judicial notice of given instrument’s reliability and will admit in evidence results of tests from such instrument without requiring further proof. See id. at 3 78- 79.
In fact, the general rule in New Jersey regarding the admissibility of scientific test results is that if the equipment or the methodology used is proven to have a high degree of scientific reliability, and if the testis performed or administered by qualified persons, the results will be admissible at trial. See State v. Chapman, 156 N.J.Super. 35, 38 (1978). Moreover, where statutory provisions or certain well-known procedures govern an experiment, the examiner must perform the examination in accordance with such guidelines. See Romano, supra, 96 N.J. at 41.
The reliability of scientific evidence must be weighed against prejudice in light of the context in which the evidence is offered, and where expert testimony is sufficiently reliable to assist the jury, it should be admitted despite some countervailing dangers. See Provide v. McLaughlin, 195 N.J.Super. 396, 402-03 (Law Div. 1984). Any dispute as to the results and interpretation of scientific testing goes to its weight, rather than to its admissibility, and the jury should determine it. See id. at 405.
a. Admissibility of Blood Alcohol Results
In fact, in its totality, the breathalyzer produces a scientifically accurate measure of a person’s blood alcohol level. See State v. Johnson, 42 N.J. 146 (1964). Results of breathalyzer tests shall generally be admissible in evidence when the breathalyzer instrument is in proper working order, a qualified operator administered it and used it in accordance with accepted procedures. See Romano, supra 96 N.J. at 82; see also Johnson, supra 42 N.J. at 171 (1964). Additionally, breathalyzer tests must be taken within a reasonable time after arrest. See State v. Tischio, 107 N.J. at 504, 522 (1987).
Furthermore, in the area of tests determining blood alcohol levels, the Court has consistently sought to eliminate the necessity for expert testimony. See id. at 517. However, “Ia]n extremely narrow and limited qualification as to the general admissibility in evidence of the results of the use of a breathalyzer instrument must be recognized in certain special situations raising a possibility of radio frequency interference.” Romano, supra 96 N.J. at 82.
3. The Jury Conducts Admissibility of Experiments or Demonstrations lnvolving Physical Evidence
“An experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses or duplicating tests made by witnesses in open court.” Fiorino v. Sears Roebuck and Co., 309 N.J. Super. 556, 569 (App. Div. 1998) (quoting Geo. C. Christopher & Son. Inc. v. Kansas Paint & Color Co.. Inc.. 525 P.2d 626 (1974)). It is not an abuse of discretion to allow an exhibit into the jury room as long as any jury experimentation therewith was within the scope of the evidence presented at trial: “See id. (citing Commonwealth v. Pixel, 680 N.E.2d 101 (1997)).
However, controls must be placed upon the jury’s experimentation. Instructions limiting the jury’s use of physical evidence should be given, when necessary. For example, in Fiorino an allegedly defective leaf shredder and blower should not have been permitted in a jury room, in a products liability case, without appropriate limiting instructions. See id. at 569.
F. “Day In the Life” Videotape
In Ocasio v. Amtrak, 299 N.J.Super. 139, 155 (App. Div. 1997), a personal injury action, the trial court concluded that the risk of undue prejudice, confusion of issues, or misleading the jury did not substantially outweigh the probative value of the “day in the life” videotape. See also N.J .R.E. 403. There, the court found a “day in the life” videotape to be admissible if it assists the jury in resolving contested issues and because videotape was the only means by which a jury itself could observe the plaintiff’s then present condition and medical care being provided. See id..
G. Surveillance Films as Demonstrative Evidence
In fact, plaintiff can compel discovery of all films and disclosure by the investigator of all circumstances under which the films were taken; because of concerns of fabrication, misleading and unfair surprise at trial. “It is no more unlikely that a defendant may resort to chicanery in fabricating [films] of one alleged to be the plaintiff than it is that a plaintiff may indeed be a faker.” Jenkins v. Rainner, 69 N.J 50,57 (1976). However, defendant must have permission to depose the plaintiff again, limited to the issue of damages, before producing the films.
Subject to the discretion of the trial court, any demand for surveillance films should be accompanied by a consent to be deposed after the movies have been taken and before the films must be presented for the adversary’s examination, although there may be deviations from this general rule, subject to the trial judge’s discretion. See id. at 60.
H . Admission of Photographs
“Before ruling on the admissibility of photographs, it is incumbent upon the court to determine whether they accurately depict the subject at a time relevant to the issues involved in the litigation.” State v. Polito, 146 N.J. Super. 552,558 (App. Div. 1977). Where a party is unable to inspect the subject of the photograph, determining admissibility is a must in light of all of the circumstances, including the clarity of the photographs, the areas depicted, and, in this case, whether the opposing party and/or counsel were present when the subjects were seized. See id.
In fact, the trial judge may use his discretion concerning whether to admit a photograph. See State v. Kennedy. 135;N.J.513, 525 (App. Div. 1975). In addition, “[a] photographer need not be produced if a witness can testify that the photograph accurately depicts the subject as it appearded at a relevant time.” Id.
I. Admissibility of Clothing as Demonstrative Evidence
“Ordinarily, any evidence which would aid the jury in the search for truth should be admitted.” Wimberly v. Patterson, 75 N.J. Super. 584, 608 (App.Div. 1962). “Where appropriate or necessary, cautionary instructions limiting its evidential scope should be given.” Id.
Generally, however, remotely relevant evidence, whose probative value is offset by the danger or undue prejudice to a party, may be excluded, but discretion to exclude the evidence under such circumstances should be exercised only when its probative value is clearly outweighed by dangers its introduction would create. See id.; see also N.J .R.E. 403. Moreover, in the case presented in Wimberly. admitting into evidence bullet-torn or blood- stained articles of clothing which a decedent was wearing at the time of a shooting may well have had a tendency to prejudice the jury against the defendants. See id. at 608-09. On the other hand, the allowance into evidence of articles of outer clothing might have been helpful to the jury in determining the degree of visibility that the decedent at the time of the shooting presented. See id. at 609.
J. Admission of Replicas
In fact, rulings on the admission of demonstrative evidence are within the discretion of the trial judge.” State v. Scherzer. 301 N.J.Super. 363,434 (App. Div. 1997). In Scherzer. the trial judge admitted the replicas of a broomstick and a ‘fungo’ baseball bat, reasoning that the items would help the jury understand the testimony of the case more clearly, and that they were not inherently inflammatory because they were everyday household items. Furthermore, the Appellate Court found that the trial judge was well within his discretion in admitting the replicas. See id. The Court noted that “[t]here is nothing inherently improper in the use of demonstrative or illustrative evidence.” Id.
Additionally, in Scherzer. the prosecutor had permission to ask the witness to compare a miniature bat to the replica of the fungo bat, where the witness had initially stated to the police that the bat which had undergone an insertion into the victim’s vagina was a miniature, 12-inch bat. But, at trial, he admitted that he had lied and that it was a full- length fungo bat. And, the prosecutor had permission to use a clock during cross examination of defense witness in order to demonstrate and verify time intervals during which defendant held broomstick in victim’s vagina, despite objection that danger of prejudice substantially outweighed the probative value.
Analogous to the above, in State v. Mayberry, 52 N.J. 413,435-36 (1968), the Court found no error or prejudice in the admission of a gun “very similar” to the murder weapon, which was not recovered. See id. Correspondingly, in State v. Ford. 79 N.J. 136 (1979), the trial judge was found not to have abused his discretion in admitting a gun similar to the one used in the armed robbery. See id.
IV. CONCLUSION FOR PREPARING DEMONSTRATIVE EVIDENCE
A picture is worth a thousand words! Visual materials can often successfully convey ideas and facts in a far more comprehensible and persuasive fashion than mere testimony or text. See Frank Herrera & Sonia Rodriguez, Courtroom Technology: Tolls For Persuasion, TRIAL, May 1998, at 68. “A wise trial lawyer is always mindful of the fact that although jurors only retain 15 percent of what they hear alone, they retain 85 per cent of what they both hear and see.” Id.
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Were you hit from behind while sitting at a red light? Did a vehicle make an illegal turn in front of you? Did a vehicle sideswipe you when changing lanes? All of these accidents are frustrating. They become even more daunting when the irresponsible driver doesn’t have insurance coverage. So, what happens next? How do you recover compensation for damages done to your vehicle, as well as your injuries, pain, and suffering? Here’s what you should do if get hit by a driver with no insurance,
Use Your Uninsured or Underinsured Motorist Coverage
Most auto insurance plans these days offer uninsured or underinsured motorist coverage. This type of coverage in your policy aims to protect you from drivers without proper insurance. However, the limits of this coverage cannot generally be higher than your liability coverage. So, if you have $100,000 in liability coverage, you generally cannot have more than $100,000 in uninsured or underinsured motorist benefits. Having insurance is not a cosmetic application, it is highly important and cars must be covered, just like the auto industry has a motor trade insurance policy across their sector, so must cars, or any vehicle on the roads, however, because this is not always the case, it can become very dicey when paying out.
In the moments after the car accident, be sure to call 911 so the police can write a report. Documenting the collision and those involved is important, especially when the other driver does not have insurance.
Once you get home, call your own insurance company to report the accident. This will protect you in the event that you need to make a claim against your own company for uninsured or underinsured motorist benefits. It is important to report the crash even if you were not at fault
File a Claim Under the PIP and Collision Portions of Your Policy
Regardless of whether you have uninsured motorist coverage, you will still be able to file a claim against your auto policy for medical expenses (PIP) and damage to your vehicle. In most states, these are first-party benefits, which means that you use your own insurance for these claims.
New Jersey is a no-fault insurance state when it comes to auto insurance. That means, regardless of who caused the crash, your own policy pays for the medical bills. In fact, New Jersey refers to this as PIP or “personal injury protection”. In Pennsylvania, it’s called med-pay. Both allow an individual to have their medical treatment paid for by their own automobile insurance policy. This is pretty much like a medical health plan. Both “med-pay” and “PIP” have varying deductibles and limits so your recovery often depends on your policy language. And it’s for this reason that coverage policies should be approached with caution. With the assistance of companies like mercury insurance agency, determining which insurance policy is best for you might be a lot easier.
Collision entitles a claimant to recover their property damage subject to their chosen deductible.
The Right to Sue in New Jersey
New Jersey gives drivers a choice on their insurance policy selection form as to whether to choose the full right to sue or a limited right to sue. This is true even when you are filing a claim for uninsured or underinsured motorist benefits. If a person selects the full right to sue, they are charged more for their insurance policy, but have unlimited rights to file a claim for injury. Most drivers, based on simple economics and the erroneous belief that they will not get an injury in a crash, choose the limited right to sue. This means that they would have limited options when filing a lawsuit. An injured person may file a claim against the at-fault driver for pain and suffering in the following situations:
Significant disfigurement
Dismemberment
Death
Displaced fracture
Loss of a fetus
Significant scarring
Permanent injury
The above factors are self-explanatory with the exception of “permanent injury” as there are considerable differences among doctors and experts as to what type of injury is permanent and why. Most litigation involving the limited right to sue is fought over whether the victim has sustained a permanent injury that will not heal or get better with further medical treatment. Several exceptions to the general rule limiting the right to sue exist, including whether the at-fault driver was in a commercial vehicle or insured by a company not licensed in New Jersey.
As one would expect-you get what you pay for. Insurance companies settle claims more fairly and expeditiously for claimants who choose the full right to sue. Juries also award more money for these claims.
Injured in an Uninsured Motorist Accident? Call an Attorney Today!
If you suffered injuries from an accident with an uninsured motorist in New Jersey, you need to speak with an experienced attorney immediately. Call the office of Rossetti & DeVoto, PC at (844) 263-6260 to schedule a consultation today.
