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HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 1 of 18 Trans ID: LCV2023514361
REGINO DE LA CRUZ
ATTORNEY ID: 010661986
DE LA CRUZ & ASSOCIATES, LLC
4100 KENNEDY BOULEVARD, STE 203
UNION CITY,NEW JERSEY 07087
T: (201)770-9701
F: (201)770-9722
regino.delacruz@gmail.com
FILE NO: 20254
ATTORNEY FOR THE PLAINTIFF
SARA M. HERNANDEZ DE GUEVARA, SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: HUDSON COUNTY
vs. DOCKET NO: HUD-L-3883-20
NANCY R. DEMPSEY,
"JOHN DOE” (being one or more CIVIL ACTION
fictitious entities),
NEW JERSEY PROPERTY-LIABILITY
INSURANCE GUARANTY ASSOCIATION,
UNSATISFIED CLAIM AND JUDGMENT FUND,
Defendants
PLAINTIFF’S PRE-TRIAL INFORMATION EXCHANGE
and NOTICE IN LIEU OF SUBPOENA
Plaintiff submits Pretrial Information pursuant to Rule 4:25-7(b), as
follows:
I. TRIAL WITNESSES
The plaintiff may call any of the following witnesses:
1. Sarah M Hernandez De Guevara, plaintiff
2. Miguel Guevara, husband, 407-75th Street, North Bergen, NJ 07047
3. Rebeca Hernandez, sister, 407-75th Street, North Bergen, NJ 07047
4. Elias Hernandez, brother, 1500 80th Street, North Bergen, NJ 07047
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5. Elizabeth Hernandez, sister, 59 Oak Street, Apt. 3, Jersey City, NJ
07307
6. one or more of the plaintiff’s children
7. Police officer Andrew Mejia identified in police report as #75
8. Police officer Matthew Appell identified in police report as #149
9. Police officer Kevin Rodriguez identified in police report as #95
10. Police officer Brendan Bowen identified in police report as #152
11. Sgt. Shannon Tattoli identified in police report as #215
12. Steven Meyerson, MD, Open MRI, radiologist
13. Jay Zaretesky, MD, Sall Myers
14. Joseph F. Altongy, MD, Sall Myers
15. Steven Dane, MD, Sall Myers
16. Keith Johnson, MD, Sall Myers
17. Dr. Mark Wilner, MD, Sall Myers, EMG nerve conduction studies
18. Dr. Sivaran Rajan MD
19. The plaintiff may also call plaintiff’s other family members
regarding the Plaintiff’s change of lifestyle as compared to before the
accident; defendants were advised in discovery.
20. Plaintiff reserves the right to supplement the above list of
witnesses as may be necessary.
21. Plaintiff also reserves the right to call one or more rebuttal
witnesses as may be necessary.
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22. NOTICE IN LIEU OF SUBPOENA: PLEASE TAKE NOTICE that, in accordance
with the Rules of Civil Practice and Procedure, the plaintiff demands that
a duly authorized representative of the following Defendants listed below
(who has relevant knowledge of the facts alleged in the Complaint or in
support of any defenses) hereby attend and give testimony at the time of
trial which is scheduled on April 25, 2023, or any date scheduled
thereafter with respect to all matters relevant to the subject matter
involved in this action, as follows: NANCY R. DEMPSEY
II. OTHER POTENTIAL TRIAL WITNESSES
Plaintiff reserves the right to call other potential witnesses as follows:
1. Nancy S. Speez, MD, Sall Myers
2. Mark C. Wilemer, MD, Sall Myers
3. Didier Demesmin, MD, Sall Myers
4. Eleonor Gonnella, MD, Sall Myers
5. Sanjeen Kaul, MD, Hackensack University Hospital NJ Trauma Unit Care
doctor
6. Record Custodian and/or medical personnel of:
a. HMH Hackensack Medical Center – NJ Trauma & Critical Unit
b. Hackensack Radiology Group
c. Sall Myers
d. OPEN MRI
e. North Bergen EMS
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II. PLAINTIFF’S PRE-MARKED TRIAL EXHIBITS
Plaintiff may use and/or move into evidence the following exhibits:
P1. police report
P2. filed Complaint
P3. plaintiff’s certified answers to interrogatories with attachments and
amendments
P4. plaintiff’s responses to document demands and/or attachments
P5. defendant’s certified answers to interrogatories with attachments and
amendments
P6. defendants’ responses to document demands and/or attachments
P7. Medical records, reports and materials of Sall Myers
P8. Medical records, reports and materials of Open MRI
P9. Medical records, reports and materials of HMH Hackensack Medical
Center – NJ Trauma & Critical Unit
P10. Medical records, reports and materials of Hackensack Radiology Group
P11. Medical records, reports and materials of OPEN MRI
P12. Medical records, reports and materials of North Bergen EMS
P13. images – diagnostic films: MRIs, ctscan, xrays
P14. Medical records from Hackensack University Medical Center Records
P15. images - produced in discovery
P16. images – map and street views, roadway, sidewalk
P17. images – plaintiff’s injuries
P18. images – medical images and illustrations
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P19. images – medical illustrational models
P20. depositions of the defendant
P21. PowerPoint presentations to be used with opening and closing
DEMONSTRATIVE EVIDENCE
1. Demonstrative Evidence: digital photographs of plaintiff
2. Demonstrative Evidence: police reports of investigation
3. Demonstrative Evidence: digital video of incident location
4. Demonstrative Evidence: digital images of incident location
5. Demonstrative Evidence: images of diagnostic films: MRIs, ct-scans, x-
rays, etc.
6. Demonstrative Evidence: body parts models or illustrations previously
supplied in discovery
7. Demonstrative Evidence: nervous system and dermatomes models or
illustrations
8. Demonstrative Evidence: skeletal system and spine models or
illustrations
9. The Plaintiff reserves the right to supplement the above list of
Exhibits at the time of trial, as may be necessary
10. Counsel for the plaintiff reserves the right to utilize a PowerPoint
presentation for opening and closing statements.
a. In State v. Geraldo Rivera, 437 N.J. Super. 434 (2014),
the Appellate Division found that “the content, not the
medium” determined the appropriateness its use. Id. at
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448. Attorneys have broad latitude in making
summations. Risko v. Thompson Muller Auto. Group, Inc.,
206 N.J. 506, 522 (2011). They are permitted to make “fair
comment” on any evidence admitted during the trial,
meaning that counsel may argue “any conclusion which a
jury is free to arrive at” based upon the
evidence. Spedick v. Murphy, 266 N.J. Super. 573, 590–91
(App.Div.), certif.denied,134 N.J. 567 1993).
b. Plaintiffs’ counsel submits that the PowerPoint to be used
during opening and summation are intended to be within the
bounds of permissible advocacy. All content is intended to
be based on evidence introduced at trial. As such, the use
of the PowerPoint presentation would not prejudice the
Defendant and, thus, should be permitted.
III. PLAINTIFF’S PROPOSED TRIAL READINGS
Defendants reserve the right to proffer citations of proposed readings at
the time of trial as may be necessary, including but not limited to:
a. portions of deposition testimony of Defendant Nancy Dempsey
b. portions of defendants’ answers to interrogatories
c. portions of reports of plaintiff experts
d. portions of reports of defense expert
IV. PLAINTIFF’S MOTION(S) AND OBJECTIONS TO DEFENDANT’S PRE-MARKED
EXHIBITS, READINGS AND/OR TRIAL MOTIONS
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1. Motion to bar defense experts and witnesses from introducing non-
disclosed changes in intended trial testimony of a witness unless prior
notice was given, as required by McKenney v. Jersey City Medical Center,
167 NJ 359 (2001).
2. Motion to bar reference to defense expert(s) as “independent”. See
Cogdell v. Brown, 220 N.J. Super. 330, 336 (App. Div. 1987), which held
that whether an expert is a hired gun or one whose opinions have greater
foundations of objectivity is an issue to be litigated by counsel and
considered by the jury. See also, Janus v. Hackensack Hospital, 131 N.J.
Super. 535, 539-541 (App. Div. 1974) (relevancy of allegiances of medical
expert); State v. Williams, 252 N.J. Super. 369, 382, (App. Div. 1991)
(relevancy of a medical expert's financial reward).
3. Motion to preclude the defendant(s) from suggesting that the
defendant(s) will be financially responsible, personally harmed, have a
personal stake in the matter, or that the plaintiff is trying to reach
into the defendant’s pocket. Tomeo v Northern Valley Swim Club, 201 N.J.
Super. 416 (App. Div. 1985) (respecting similar comments when the
defendants have insurance). See also Romero v. O’Reilly, Docket No. A-
4679-05T5 (April 17, 2007).
4. Motion to preclude the defendants from arguing that the plaintiff’s
claim for pain and suffering is associated with the plaintiff’s failure to
introduce evidence in support of medical bills incurred or loss of income,
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either past, present or future. See Romero v. O’Reilly, Docket No. A-
4679-05T5 (April 17, 2007).
5. Motion to preclude the defendants from arguing that the plaintiff’s
personal injury claim for pain and suffering is part of a “litigation
explosion” or that the court is overwhelmed with lawsuits. Ohayia v.
Cass, 288 N.J. Super. 664 (App. Div. 1996).
6. Motion to preclude the defendants from arguing or inferring that
awarding damages to the plaintiff(s) would be the equivalent of a lottery,
jackpot, high stakes gambling, or the like. Brenman v. DeMello, 191 N.J.
18, 27 (2007).
7. Motion to bar defense medical expert from testifying as to MRI
findings as may be compared to pathology in the general population,
including barring references of medical findings or statistical data for
the general population, on the following grounds:
a. none is alleged in the defense medical report(s),
b. speculation,
c. supporting citations or authoritative references were not
supplied in discovery despite having been requested. This
objection includes preclusion of the expert’s discussion of
materials including but not limited to articles, treatises,
statistics, studies, experiments, etc. upon which defense expert
intends to rely but has not been divulged in discovery.
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8. Motion to bar defendants and defense experts from cross-examining the
plaintiff using entries contained in medical records. Radbill v. Mascolo
(Unpublished Appellate case; CAM-L-3146-09, A-4658-10T4, App. Div. May 30,
2012), on the following grounds:
a. In Radbill, the Appellate Division reversed the trial court's
denial of Plaintiff's motion for a new trial, holding that
reciting the contents of prior medical records of non-testifying
doctors to cross-examine the plaintiff during trial was improper
under the Rules of Evidence.
b. No hearsay exception exists for the introduction of Plaintiff's
medical records for this purpose: The medical record notations
may not be used for purposes of refreshing recollection in the
presence of the jury. A witness or party may not put into the
record the contents of an otherwise inadmissible writing under
the guise of refreshing recollection. State v. Caraballo, 330
N.J. Super. 545 (App. Div. 2000). When a record is used to
refresh recollection the admissible evidence is the recollection
of the witness and not the extrinsic paper. State v. Carter, 91
N.J. 123 (1982). If presented for the purpose of refreshing
recollection under N.J.R.E. 612, the records must be presented
outside the presence of the jury to determine whether
recollection has been refreshed.
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c. Without The Proper Foundation, Medical Record Notations Do Not
Qualify Under The Business Record Exception To Hearsay. In
order for medical notes to be admitted under the business record
exception to hearsay under N.J.R.E. 803(C)(6), the defendants
must provide evidence of when the notes were prepared, by who
and provide testimony as to the source of the records. See,
Radbill v. Mascolo, supra; Nowacki v. Community Med. Center, 279
N.J. Super. 276, 281-285 (App. Div.), cert. den. 141 N.J. 95
(1995); State v Gardner, 51 N.J. 444 (1968). If there is no
testimony by either the doctor or his staff as to the source of
the records, those portions are inadmissible under N.J.R.E.
803(C) (6).
d. Medical Record Notations Do Not Qualify As Past Record
Recollections. The statements contained in plaintiff's medical
records are by a doctor or an assistant working under that
doctor. The statements reflect the Doctor or assistant's second
hand understanding of statements made by plaintiff. They do not
reflect plaintiff's recorded recollection. The notations are
not properly admissible under N.J.R.E. 803(C)(5).
e. Medical Record Notations Are Not Statements Made For The
Purposes Of Treatment Or Diagnosis. The records contain
impressions of the doctor or the doctor's assistant. There is
no explanation as to the origins of the notations. The notations
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are inadmissible as statements made for purposes of treatment or
diagnosis under N.J.R.E. 803(C)(4).
9. Motion to bar defendants’ and their experts’ from introducing
evidence to show that plaintiff consulted with counsel prior to obtaining
medical treatment. R. 2:11-3(e)(1)(E).
a. In Twal v. Hinds, A-4296-06T1 (App. Div. July 18, 2008), the
Appellate Division found no reversible error when the trial
judge limited cross-examination on the fact that the plaintiff
consulted with an attorney, before consulting with a doctor.
10. Motion to bar defendants’ and their experts’ to use or make reference
to medical or scientific literature, research, studies.
a. Citations or references that defendants or their expert(s)
intend to rely were not supplied in discovery despite it having
been requested. This objection includes preclusion of the
expert’s discussion of materials including but not limited to
articles, treatises, statistics, studies, experiments, etc. upon
which defense expert intends to rely but had not divulged in
discovery. Each defendant was requested, in relevant part, to
supply:
b. Copies of all books, treatises, studies, documents,
commentaries, reports, statutes, codes, ordinances, rules,
codes, regulations, procedures, protocols, or other published
documents referred to and utilized by or relied upon by any
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expert witness whom you our your attorney intends to call at the
time of trial;
c. Copies of any and all writings, documents, reports, memoranda,
correspondence, and all other information fixed on a tangible
form which Defendant intends to introduce at trial to create an
inference of Plaintiff's physical condition at any time either
before or after the alleged incident.
11. Motion to direct defense expert witnesses to remain at or near the
witness stand during trial testimony.
12. Motion to allow Plaintiff’s counsel to suggest defendant’s respective
negligence percentage in the opening argument. Brodsky v. Grinnell Haulers
Inc., 181 N.J. 102 (2004).
13. Motion in limine to bar testimony, arguments or references to the
plaintiff's federal legal resident alien standing.
a. This type of proof: a. is not material, b. is not probative, c.
alternatively, its probative value, if any, is substantially
outweighed by its potentially prejudicial effect.
14. Motion to allow jury instruction: adverse inference regarding the
defendant’s representative’s failure to appear for trial to testify
despite issuance of a Notice in Lieu of Subpoena.
a. Failure to produce the defendants permits the trial court, in
its discretion, to charge the jury that they could infer from
the non-production of defendants that the testimony would not
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have specifically contradicted the plaintiff’s case and it would
not have materially aided defendants’ case.
15. Motion to allow jury instruction: adverse inference regarding the
defendants’ failure to produce named witnesses whom the adversary would
naturally have been expect to produce to testify, and the jury shall be
instructed to infer from the non-production of this witness that his/her
testimony would be adverse to the interests of the plaintiff/defendant.
a. Model Jury Charge 1.18. See also, Wild v. Roman, 91 N.J. Super.
410 (App. Div. 1966); State v. Clawans, 38 N.J. 162 (1962).
Parentini v. S.Klein Department Stores, 94 N.J. Super. 452 (App.
Div. 1967) Failure to call the examining doctor on behalf of
defendant permits the trial court, in its discretion, to charge
the jury that they could infer from the non-production of
defendant’s medical expert that his/her testimony would not have
specifically contradicted that of plaintiff’s experts and it
would not have materially aided defendant’s case.
16. Motion to allow plaintiff’s expert(s) to testify without being
limited to the content of his/her report. Sallo v. Sabatino, 146 N.J.
Super. 416 (App. Div. 1976), cert. denied, 75 N.J. 24 (1977); Skibinski v.
Smith, 206 N.J. Super. 349 (App.Div. 1985).
17. Motion in limine to bar use of information concerning prior or
subsequent accidents or injuries:
a. Assertions of medical causation concerning a prior injury or
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illness were not pleaded and should be barred.
b. Prior or subsequent event: there must be competent proof and
sufficient connection linking the prior or subsequent accident to
the injury. Paxton v. Misiuk, 34 N.J. 453 (1961), March v. Newark
Heating & Machine Co., 57 N.J.L. 36 (Sup. Ct. 1894).
c. Prior or subsequent injury: There must be some logical
relationship to the issue in the case and it must be established
by expert testimony. Allendorf v. Kaiserman Enters., 266 N.J.
Super. 662 (App. Div. 1993). The defendants should be
prohibited from introducing evidence of Plaintiff's prior or
subsequent accidents if there is no competent proof that the
subject injury and sequelae is attributable to another accident.
18. Motion in limine to bar expert opinion(s) to suggest that the
plaintiff is faking injuries or that objectively her physical findings do
not support her complaints, on the following grounds:
a. these assertions were not pleaded and should be barred
b. speculation
c. no citations or references were cited by the defendants or their
expert(s) and this constitutes a “net opinion”
d. supporting citations or authoritative references were not
supplied in discovery despite having been requested. This
objection includes preclusion of the expert’s discussion of
materials including but not limited to articles, treatises,
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statistics, studies, experiments, etc. upon which defense expert
intends to rely but has not been divulged in discovery
e. An expert's opinions regarding "symptom magnification,
malingering, or other equivalent concepts in civil jury cases"
are improper and should therefore be barred under N.J.R.E. 403
(probative value must be carefully weighed against the very
realistic potential for juror confusion, undue prejudice). It
should apply to ANY negative term that will impugn plaintiff's
believability. There is an exception if the expert is
sufficiently qualified as a psychiatrist, psychologist or mental
health expert. Effect: Orthopedics, neurologists, pain
management physicians were barred from offering testimony that
plaintiff was exhibiting signs of symptom magnification,
malingering, somatization (mental disorder) which were the cause
of pain. Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36 (2019)
reversing Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super.
577 (App. Div. 2017).
19. Motion in limine to permit the plaintiff(s) and plaintiff’s medical
expert(s) to use demonstrative aids such as medical illustrations, x-rays,
MRIs, animations of plaintiff's x-rays, fractures, surgery, test results,
etc. to help the plaintiff(s) and medical expert(s) explain and to assist
the jury in understanding the evidence.
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a. A visual aid is "a model, diagram or chart used by a witness to
illustrate his or her testimony and facilitate jury
understanding." Macaluso v. Pleskin, 329 N.J. Super. 346, 350
(App. Div. 2000).
20. Motion in limine to bar the use of any non-testifying expert’s
interpretation of diagnostic films and medical diagnosis, such as MRI
reports or x-ray reports.
a. The defendant(s) should not pose consistency/inconsistency
questions to a testifying expert where the manifest purpose of
those questions is to have the jury consider for their truth the
absent expert's hearsay opinions about complex and disputed
matters. James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015).
b. NJRE 703 only permits the testifying expert to refer to a
hearsay statement like a medical report by a non-testifying
expert for the purposes of apprising the jury of the basis for
his opinion, it does not allow expert testimony to serve as a
vehicle for the wholesale introduction of otherwise inadmissible
evidence. Agha v. Feiner, 198 N.J. 50 (2009). The report of the
radiologist interpreting the MRI was inadmissible hearsay and
not subject to admission under the business record exception to
hearsay and such could not be "bootstrapped into evidence" by
another expert under NJRE 705. Brun v. Cardoso, 390 N.J. Super.
409 (App. Div. 2006).
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21. Motion in limine to bar Defendant's medical experts from using or
referring to intake forms completed by the plaintiff at the defense
medical expert examination, if any, along with documents, records or
proofs that were not previously supplied in discovery and were created by
a trial expert at an IME or in preparation of trial.
a. These materials were demanded in discovery and the use of or
reference to these materials would be surprise and otherwise
prejudicial
22. Plaintiff reserves the right to make additional motions at trial as
necessary.
23. Plaintiff reserves the right to respond to any timely pretrial
submissions by Defendants.
EVIDENCE ISSUES
1. The plaintiff intends to rely on the time-unit rule during opening
and/or summation. Rule 1:7-1(b): In civil cases, any party may suggest to
the trier of fact, with respect to any element of damages, that
unliquidated damages be calculated on a time-unit basis, without reference
to a specific sum. In the event such comments are made to a jury, the
judge shall instruct the jury that they are argument only and do not
constitute evidence.
2. Request for a Rule 104 hearing regarding defense medical expert’s
qualifications to interpret plaintiff’s MRI films with due consideration
of the high standard required in the interpretation of MRI films.
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3. Plaintiff does not anticipate any issue regarding the admission of
any of Plaintiff's pre-marked Exhibits at the time of trial.
4. Plaintiff reserves the right to amend the above with objections to
Defendants’ proposed trial submissions after timely service of the
defendants’ pretrial information.
VI. ADMINISTRATION
1. There are presently no stipulations as between the parties.
a. Plaintiff reserves the right to submit a set of proposed Voire
Dire questions for consideration by the Court.
2. Plaintiff shall submit a jury verdict form.
Respectfully Submitted,
Regino de la Cruz
Regino De La Cruz, Esq.
RDLC/rd
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HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 1 of 18 Trans ID: LCV2023514361 REGINO DE LA CRUZ ATTORNEY ID: 010661986 DE LA CRUZ & ASSOCIATES, LLC 4100 KENNEDY BOULEVARD, STE 203 UNION CITY,NEW JERSEY 07087 T: (201)770-9701 F: (201)770-9722 regino.delacruz@gmail.com FILE NO: 20254 ATTORNEY FOR THE PLAINTIFF SARA M. HERNANDEZ DE GUEVARA, SUPERIOR COURT OF NEW JERSEY Plaintiff, LAW DIVISION: HUDSON COUNTY vs. DOCKET NO: HUD-L-3883-20 NANCY R. DEMPSEY, "JOHN DOE” (being one or more CIVIL ACTION fictitious entities), NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION, UNSATISFIED CLAIM AND JUDGMENT FUND, Defendants PLAINTIFF’S PRE-TRIAL INFORMATION EXCHANGE and NOTICE IN LIEU OF SUBPOENA Plaintiff submits Pretrial Information pursuant to Rule 4:25-7(b), as follows: I. TRIAL WITNESSES The plaintiff may call any of the following witnesses: 1. Sarah M Hernandez De Guevara, plaintiff 2. Miguel Guevara, husband, 407-75th Street, North Bergen, NJ 07047 3. Rebeca Hernandez, sister, 407-75th Street, North Bergen, NJ 07047 4. Elias Hernandez, brother, 1500 80th Street, North Bergen, NJ 07047 PLAINTIFF’S PRE-TRIAL 1 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 2 of 18 Trans ID: LCV2023514361 5. Elizabeth Hernandez, sister, 59 Oak Street, Apt. 3, Jersey City, NJ 07307 6. one or more of the plaintiff’s children 7. Police officer Andrew Mejia identified in police report as #75 8. Police officer Matthew Appell identified in police report as #149 9. Police officer Kevin Rodriguez identified in police report as #95 10. Police officer Brendan Bowen identified in police report as #152 11. Sgt. Shannon Tattoli identified in police report as #215 12. Steven Meyerson, MD, Open MRI, radiologist 13. Jay Zaretesky, MD, Sall Myers 14. Joseph F. Altongy, MD, Sall Myers 15. Steven Dane, MD, Sall Myers 16. Keith Johnson, MD, Sall Myers 17. Dr. Mark Wilner, MD, Sall Myers, EMG nerve conduction studies 18. Dr. Sivaran Rajan MD 19. The plaintiff may also call plaintiff’s other family members regarding the Plaintiff’s change of lifestyle as compared to before the accident; defendants were advised in discovery. 20. Plaintiff reserves the right to supplement the above list of witnesses as may be necessary. 21. Plaintiff also reserves the right to call one or more rebuttal witnesses as may be necessary. PLAINTIFF’S PRE-TRIAL 2 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 3 of 18 Trans ID: LCV2023514361 22. NOTICE IN LIEU OF SUBPOENA: PLEASE TAKE NOTICE that, in accordance with the Rules of Civil Practice and Procedure, the plaintiff demands that a duly authorized representative of the following Defendants listed below (who has relevant knowledge of the facts alleged in the Complaint or in support of any defenses) hereby attend and give testimony at the time of trial which is scheduled on April 25, 2023, or any date scheduled thereafter with respect to all matters relevant to the subject matter involved in this action, as follows: NANCY R. DEMPSEY II. OTHER POTENTIAL TRIAL WITNESSES Plaintiff reserves the right to call other potential witnesses as follows: 1. Nancy S. Speez, MD, Sall Myers 2. Mark C. Wilemer, MD, Sall Myers 3. Didier Demesmin, MD, Sall Myers 4. Eleonor Gonnella, MD, Sall Myers 5. Sanjeen Kaul, MD, Hackensack University Hospital NJ Trauma Unit Care doctor 6. Record Custodian and/or medical personnel of: a. HMH Hackensack Medical Center – NJ Trauma & Critical Unit b. Hackensack Radiology Group c. Sall Myers d. OPEN MRI e. North Bergen EMS PLAINTIFF’S PRE-TRIAL 3 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 4 of 18 Trans ID: LCV2023514361 II. PLAINTIFF’S PRE-MARKED TRIAL EXHIBITS Plaintiff may use and/or move into evidence the following exhibits: P1. police report P2. filed Complaint P3. plaintiff’s certified answers to interrogatories with attachments and amendments P4. plaintiff’s responses to document demands and/or attachments P5. defendant’s certified answers to interrogatories with attachments and amendments P6. defendants’ responses to document demands and/or attachments P7. Medical records, reports and materials of Sall Myers P8. Medical records, reports and materials of Open MRI P9. Medical records, reports and materials of HMH Hackensack Medical Center – NJ Trauma & Critical Unit P10. Medical records, reports and materials of Hackensack Radiology Group P11. Medical records, reports and materials of OPEN MRI P12. Medical records, reports and materials of North Bergen EMS P13. images – diagnostic films: MRIs, ctscan, xrays P14. Medical records from Hackensack University Medical Center Records P15. images - produced in discovery P16. images – map and street views, roadway, sidewalk P17. images – plaintiff’s injuries P18. images – medical images and illustrations PLAINTIFF’S PRE-TRIAL 4 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 5 of 18 Trans ID: LCV2023514361 P19. images – medical illustrational models P20. depositions of the defendant P21. PowerPoint presentations to be used with opening and closing DEMONSTRATIVE EVIDENCE 1. Demonstrative Evidence: digital photographs of plaintiff 2. Demonstrative Evidence: police reports of investigation 3. Demonstrative Evidence: digital video of incident location 4. Demonstrative Evidence: digital images of incident location 5. Demonstrative Evidence: images of diagnostic films: MRIs, ct-scans, x- rays, etc. 6. Demonstrative Evidence: body parts models or illustrations previously supplied in discovery 7. Demonstrative Evidence: nervous system and dermatomes models or illustrations 8. Demonstrative Evidence: skeletal system and spine models or illustrations 9. The Plaintiff reserves the right to supplement the above list of Exhibits at the time of trial, as may be necessary 10. Counsel for the plaintiff reserves the right to utilize a PowerPoint presentation for opening and closing statements. a. In State v. Geraldo Rivera, 437 N.J. Super. 434 (2014), the Appellate Division found that “the content, not the medium” determined the appropriateness its use. Id. at PLAINTIFF’S PRE-TRIAL 5 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 6 of 18 Trans ID: LCV2023514361 448. Attorneys have broad latitude in making summations. Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 522 (2011). They are permitted to make “fair comment” on any evidence admitted during the trial, meaning that counsel may argue “any conclusion which a jury is free to arrive at” based upon the evidence. Spedick v. Murphy, 266 N.J. Super. 573, 590–91 (App.Div.), certif.denied,134 N.J. 567 1993). b. Plaintiffs’ counsel submits that the PowerPoint to be used during opening and summation are intended to be within the bounds of permissible advocacy. All content is intended to be based on evidence introduced at trial. As such, the use of the PowerPoint presentation would not prejudice the Defendant and, thus, should be permitted. III. PLAINTIFF’S PROPOSED TRIAL READINGS Defendants reserve the right to proffer citations of proposed readings at the time of trial as may be necessary, including but not limited to: a. portions of deposition testimony of Defendant Nancy Dempsey b. portions of defendants’ answers to interrogatories c. portions of reports of plaintiff experts d. portions of reports of defense expert IV. PLAINTIFF’S MOTION(S) AND OBJECTIONS TO DEFENDANT’S PRE-MARKED EXHIBITS, READINGS AND/OR TRIAL MOTIONS PLAINTIFF’S PRE-TRIAL 6 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 7 of 18 Trans ID: LCV2023514361 1. Motion to bar defense experts and witnesses from introducing non- disclosed changes in intended trial testimony of a witness unless prior notice was given, as required by McKenney v. Jersey City Medical Center, 167 NJ 359 (2001). 2. Motion to bar reference to defense expert(s) as “independent”. See Cogdell v. Brown, 220 N.J. Super. 330, 336 (App. Div. 1987), which held that whether an expert is a hired gun or one whose opinions have greater foundations of objectivity is an issue to be litigated by counsel and considered by the jury. See also, Janus v. Hackensack Hospital, 131 N.J. Super. 535, 539-541 (App. Div. 1974) (relevancy of allegiances of medical expert); State v. Williams, 252 N.J. Super. 369, 382, (App. Div. 1991) (relevancy of a medical expert's financial reward). 3. Motion to preclude the defendant(s) from suggesting that the defendant(s) will be financially responsible, personally harmed, have a personal stake in the matter, or that the plaintiff is trying to reach into the defendant’s pocket. Tomeo v Northern Valley Swim Club, 201 N.J. Super. 416 (App. Div. 1985) (respecting similar comments when the defendants have insurance). See also Romero v. O’Reilly, Docket No. A- 4679-05T5 (April 17, 2007). 4. Motion to preclude the defendants from arguing that the plaintiff’s claim for pain and suffering is associated with the plaintiff’s failure to introduce evidence in support of medical bills incurred or loss of income, PLAINTIFF’S PRE-TRIAL 7 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 8 of 18 Trans ID: LCV2023514361 either past, present or future. See Romero v. O’Reilly, Docket No. A- 4679-05T5 (April 17, 2007). 5. Motion to preclude the defendants from arguing that the plaintiff’s personal injury claim for pain and suffering is part of a “litigation explosion” or that the court is overwhelmed with lawsuits. Ohayia v. Cass, 288 N.J. Super. 664 (App. Div. 1996). 6. Motion to preclude the defendants from arguing or inferring that awarding damages to the plaintiff(s) would be the equivalent of a lottery, jackpot, high stakes gambling, or the like. Brenman v. DeMello, 191 N.J. 18, 27 (2007). 7. Motion to bar defense medical expert from testifying as to MRI findings as may be compared to pathology in the general population, including barring references of medical findings or statistical data for the general population, on the following grounds: a. none is alleged in the defense medical report(s), b. speculation, c. supporting citations or authoritative references were not supplied in discovery despite having been requested. This objection includes preclusion of the expert’s discussion of materials including but not limited to articles, treatises, statistics, studies, experiments, etc. upon which defense expert intends to rely but has not been divulged in discovery. PLAINTIFF’S PRE-TRIAL 8 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 9 of 18 Trans ID: LCV2023514361 8. Motion to bar defendants and defense experts from cross-examining the plaintiff using entries contained in medical records. Radbill v. Mascolo (Unpublished Appellate case; CAM-L-3146-09, A-4658-10T4, App. Div. May 30, 2012), on the following grounds: a. In Radbill, the Appellate Division reversed the trial court's denial of Plaintiff's motion for a new trial, holding that reciting the contents of prior medical records of non-testifying doctors to cross-examine the plaintiff during trial was improper under the Rules of Evidence. b. No hearsay exception exists for the introduction of Plaintiff's medical records for this purpose: The medical record notations may not be used for purposes of refreshing recollection in the presence of the jury. A witness or party may not put into the record the contents of an otherwise inadmissible writing under the guise of refreshing recollection. State v. Caraballo, 330 N.J. Super. 545 (App. Div. 2000). When a record is used to refresh recollection the admissible evidence is the recollection of the witness and not the extrinsic paper. State v. Carter, 91 N.J. 123 (1982). If presented for the purpose of refreshing recollection under N.J.R.E. 612, the records must be presented outside the presence of the jury to determine whether recollection has been refreshed. PLAINTIFF’S PRE-TRIAL 9 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 10 of 18 Trans ID: LCV2023514361 c. Without The Proper Foundation, Medical Record Notations Do Not Qualify Under The Business Record Exception To Hearsay. In order for medical notes to be admitted under the business record exception to hearsay under N.J.R.E. 803(C)(6), the defendants must provide evidence of when the notes were prepared, by who and provide testimony as to the source of the records. See, Radbill v. Mascolo, supra; Nowacki v. Community Med. Center, 279 N.J. Super. 276, 281-285 (App. Div.), cert. den. 141 N.J. 95 (1995); State v Gardner, 51 N.J. 444 (1968). If there is no testimony by either the doctor or his staff as to the source of the records, those portions are inadmissible under N.J.R.E. 803(C) (6). d. Medical Record Notations Do Not Qualify As Past Record Recollections. The statements contained in plaintiff's medical records are by a doctor or an assistant working under that doctor. The statements reflect the Doctor or assistant's second hand understanding of statements made by plaintiff. They do not reflect plaintiff's recorded recollection. The notations are not properly admissible under N.J.R.E. 803(C)(5). e. Medical Record Notations Are Not Statements Made For The Purposes Of Treatment Or Diagnosis. The records contain impressions of the doctor or the doctor's assistant. There is no explanation as to the origins of the notations. The notations PLAINTIFF’S PRE-TRIAL 10 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 11 of 18 Trans ID: LCV2023514361 are inadmissible as statements made for purposes of treatment or diagnosis under N.J.R.E. 803(C)(4). 9. Motion to bar defendants’ and their experts’ from introducing evidence to show that plaintiff consulted with counsel prior to obtaining medical treatment. R. 2:11-3(e)(1)(E). a. In Twal v. Hinds, A-4296-06T1 (App. Div. July 18, 2008), the Appellate Division found no reversible error when the trial judge limited cross-examination on the fact that the plaintiff consulted with an attorney, before consulting with a doctor. 10. Motion to bar defendants’ and their experts’ to use or make reference to medical or scientific literature, research, studies. a. Citations or references that defendants or their expert(s) intend to rely were not supplied in discovery despite it having been requested. This objection includes preclusion of the expert’s discussion of materials including but not limited to articles, treatises, statistics, studies, experiments, etc. upon which defense expert intends to rely but had not divulged in discovery. Each defendant was requested, in relevant part, to supply: b. Copies of all books, treatises, studies, documents, commentaries, reports, statutes, codes, ordinances, rules, codes, regulations, procedures, protocols, or other published documents referred to and utilized by or relied upon by any PLAINTIFF’S PRE-TRIAL 11 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 12 of 18 Trans ID: LCV2023514361 expert witness whom you our your attorney intends to call at the time of trial; c. Copies of any and all writings, documents, reports, memoranda, correspondence, and all other information fixed on a tangible form which Defendant intends to introduce at trial to create an inference of Plaintiff's physical condition at any time either before or after the alleged incident. 11. Motion to direct defense expert witnesses to remain at or near the witness stand during trial testimony. 12. Motion to allow Plaintiff’s counsel to suggest defendant’s respective negligence percentage in the opening argument. Brodsky v. Grinnell Haulers Inc., 181 N.J. 102 (2004). 13. Motion in limine to bar testimony, arguments or references to the plaintiff's federal legal resident alien standing. a. This type of proof: a. is not material, b. is not probative, c. alternatively, its probative value, if any, is substantially outweighed by its potentially prejudicial effect. 14. Motion to allow jury instruction: adverse inference regarding the defendant’s representative’s failure to appear for trial to testify despite issuance of a Notice in Lieu of Subpoena. a. Failure to produce the defendants permits the trial court, in its discretion, to charge the jury that they could infer from the non-production of defendants that the testimony would not PLAINTIFF’S PRE-TRIAL 12 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 13 of 18 Trans ID: LCV2023514361 have specifically contradicted the plaintiff’s case and it would not have materially aided defendants’ case. 15. Motion to allow jury instruction: adverse inference regarding the defendants’ failure to produce named witnesses whom the adversary would naturally have been expect to produce to testify, and the jury shall be instructed to infer from the non-production of this witness that his/her testimony would be adverse to the interests of the plaintiff/defendant. a. Model Jury Charge 1.18. See also, Wild v. Roman, 91 N.J. Super. 410 (App. Div. 1966); State v. Clawans, 38 N.J. 162 (1962). Parentini v. S.Klein Department Stores, 94 N.J. Super. 452 (App. Div. 1967) Failure to call the examining doctor on behalf of defendant permits the trial court, in its discretion, to charge the jury that they could infer from the non-production of defendant’s medical expert that his/her testimony would not have specifically contradicted that of plaintiff’s experts and it would not have materially aided defendant’s case. 16. Motion to allow plaintiff’s expert(s) to testify without being limited to the content of his/her report. Sallo v. Sabatino, 146 N.J. Super. 416 (App. Div. 1976), cert. denied, 75 N.J. 24 (1977); Skibinski v. Smith, 206 N.J. Super. 349 (App.Div. 1985). 17. Motion in limine to bar use of information concerning prior or subsequent accidents or injuries: a. Assertions of medical causation concerning a prior injury or PLAINTIFF’S PRE-TRIAL 13 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 14 of 18 Trans ID: LCV2023514361 illness were not pleaded and should be barred. b. Prior or subsequent event: there must be competent proof and sufficient connection linking the prior or subsequent accident to the injury. Paxton v. Misiuk, 34 N.J. 453 (1961), March v. Newark Heating & Machine Co., 57 N.J.L. 36 (Sup. Ct. 1894). c. Prior or subsequent injury: There must be some logical relationship to the issue in the case and it must be established by expert testimony. Allendorf v. Kaiserman Enters., 266 N.J. Super. 662 (App. Div. 1993). The defendants should be prohibited from introducing evidence of Plaintiff's prior or subsequent accidents if there is no competent proof that the subject injury and sequelae is attributable to another accident. 18. Motion in limine to bar expert opinion(s) to suggest that the plaintiff is faking injuries or that objectively her physical findings do not support her complaints, on the following grounds: a. these assertions were not pleaded and should be barred b. speculation c. no citations or references were cited by the defendants or their expert(s) and this constitutes a “net opinion” d. supporting citations or authoritative references were not supplied in discovery despite having been requested. This objection includes preclusion of the expert’s discussion of materials including but not limited to articles, treatises, PLAINTIFF’S PRE-TRIAL 14 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 15 of 18 Trans ID: LCV2023514361 statistics, studies, experiments, etc. upon which defense expert intends to rely but has not been divulged in discovery e. An expert's opinions regarding "symptom magnification, malingering, or other equivalent concepts in civil jury cases" are improper and should therefore be barred under N.J.R.E. 403 (probative value must be carefully weighed against the very realistic potential for juror confusion, undue prejudice). It should apply to ANY negative term that will impugn plaintiff's believability. There is an exception if the expert is sufficiently qualified as a psychiatrist, psychologist or mental health expert. Effect: Orthopedics, neurologists, pain management physicians were barred from offering testimony that plaintiff was exhibiting signs of symptom magnification, malingering, somatization (mental disorder) which were the cause of pain. Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36 (2019) reversing Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super. 577 (App. Div. 2017). 19. Motion in limine to permit the plaintiff(s) and plaintiff’s medical expert(s) to use demonstrative aids such as medical illustrations, x-rays, MRIs, animations of plaintiff's x-rays, fractures, surgery, test results, etc. to help the plaintiff(s) and medical expert(s) explain and to assist the jury in understanding the evidence. PLAINTIFF’S PRE-TRIAL 15 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 16 of 18 Trans ID: LCV2023514361 a. A visual aid is "a model, diagram or chart used by a witness to illustrate his or her testimony and facilitate jury understanding." Macaluso v. Pleskin, 329 N.J. Super. 346, 350 (App. Div. 2000). 20. Motion in limine to bar the use of any non-testifying expert’s interpretation of diagnostic films and medical diagnosis, such as MRI reports or x-ray reports. a. The defendant(s) should not pose consistency/inconsistency questions to a testifying expert where the manifest purpose of those questions is to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters. James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015). b. NJRE 703 only permits the testifying expert to refer to a hearsay statement like a medical report by a non-testifying expert for the purposes of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as a vehicle for the wholesale introduction of otherwise inadmissible evidence. Agha v. Feiner, 198 N.J. 50 (2009). The report of the radiologist interpreting the MRI was inadmissible hearsay and not subject to admission under the business record exception to hearsay and such could not be "bootstrapped into evidence" by another expert under NJRE 705. Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006). PLAINTIFF’S PRE-TRIAL 16 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 17 of 18 Trans ID: LCV2023514361 21. Motion in limine to bar Defendant's medical experts from using or referring to intake forms completed by the plaintiff at the defense medical expert examination, if any, along with documents, records or proofs that were not previously supplied in discovery and were created by a trial expert at an IME or in preparation of trial. a. These materials were demanded in discovery and the use of or reference to these materials would be surprise and otherwise prejudicial 22. Plaintiff reserves the right to make additional motions at trial as necessary. 23. Plaintiff reserves the right to respond to any timely pretrial submissions by Defendants. EVIDENCE ISSUES 1. The plaintiff intends to rely on the time-unit rule during opening and/or summation. Rule 1:7-1(b): In civil cases, any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis, without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence. 2. Request for a Rule 104 hearing regarding defense medical expert’s qualifications to interpret plaintiff’s MRI films with due consideration of the high standard required in the interpretation of MRI films. PLAINTIFF’S PRE-TRIAL 17 INFORMATION Page of 18 HUD-L-003883-20 02/10/2023 3:15:13 PM Pg 18 of 18 Trans ID: LCV2023514361 3. Plaintiff does not anticipate any issue regarding the admission of any of Plaintiff's pre-marked Exhibits at the time of trial. 4. Plaintiff reserves the right to amend the above with objections to Defendants’ proposed trial submissions after timely service of the defendants’ pretrial information. VI. ADMINISTRATION 1. There are presently no stipulations as between the parties. a. Plaintiff reserves the right to submit a set of proposed Voire Dire questions for consideration by the Court. 2. Plaintiff shall submit a jury verdict form. Respectfully Submitted, Regino de la Cruz Regino De La Cruz, Esq. RDLC/rd PLAINTIFF’S PRE-TRIAL 18 INFORMATION Page of 18