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Aboubacar Demi v. Juan B. Azcona and Maria M. Azcona

August 5, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7506-08.

Per curiam.


Submitted July 5, 2011

Before Judges Cuff and Fuentes.

Plaintiff Aboubacar Demi appeals from the order of the trial court dismissing with prejudice his personal injury action against defendants Juan B. Azcona and Maria M. Azcona on the day the case was scheduled for trial. We reverse and remand this matter for trial.

The material procedural facts underpinning this appeal are not disputed. Plaintiff and defendant Juan B. Azcona were involved in a motor vehicle accident on October 25, 2007. Plaintiff filed a complaint on September 17, 2008, naming Juan as the driver of the car that collided with plaintiff's car; Maria was named as a defendant only because she owned the car Juan was driving at the time of the accident.

The matter proceeded through discovery and mandatory Rule 4:21A-1 arbitration, resulting in an award of $17,500 in favor of plaintiff on May 28, 2010. Defendants filed a timely demand for a trial de novo, and the case was scheduled for trial on September 20, 2010. At plaintiff's request, the trial date was adjourned to October 18, 2010. On this date, counsel for both sides appeared at the trial call, answered "ready," and agreed to proceed through an "expedited trial"*fn1 limited to damages, with defendants conceding liability. However, the case was not reached that day and the matter was adjourned to October 21, 2010.

On October 21, 2010, the judge entered a consent order reflecting the terms and conditions of the expedited trial. At one point before the jury's arrival, defense counsel objected to plaintiff's counsel's use of a skeletal model as an aid to explain to the jury the nature and extent of plaintiff's injuries. Defense counsel emphasized that, given the absence of live witnesses in an expedited trial, plaintiff's counsel's "explanation" was tantamount to his testifying as a medical expert.

In response, plaintiff's counsel insisted that he needed to use this kind of demonstrative evidence to convey to the jury the nature and extent of his client's injuries. The trial court disagreed and sustained defense counsel's objection. The judge held that permitting plaintiff's counsel to use this model in his opening and closing statements to the jury would convert his remarks into testimonial evidence.

From this point, the record shows plaintiff's counsel's increasing frustration with the trial judge's ruling. Equally clear in the record is the judge's irritation with plaintiff's counsel's continued remarks showing his displeasure at what counsel believed was an unfair restriction on the way he wanted to present his case to the jury in this summary proceeding. In an effort to defuse the situation, the court addressed plaintiff's counsel as follows:

[A]n expedited trial exists for the purpose of a plaintiff and a defendant coming to an agreement and that agreement results in an introduction of evidence without the necessity of providing authentication of documents. If any term needs to be explained to the jury that -- contained in a document, one of two things happens:

[e]ither there is no expedited trial and some witness on the witness stand who's sworn and who is qualified as an expert or as a fact witness who has the appropriate knowledge, should it be [an] item that can be testified to by a fact witness as opposed to an expert; [o]r often times by consent, the parties will agree to a glossary of terms that will be submitted to the jury [at] the same time that the . . . agreed upon documents are submitted to the jury.

Now you have a choice, you can either have an expedited trial [under] the terms . . . I have described, where the only evidence is what . . . the jurors hear on the witness stand and the documents that are submitted in evidence; [o]r you have a non-expedited trial where the evidence that you wish to prove comes from witnesses testifying on the witness stand together with any admissible evidence.

You get to pick. Even though you've already consented to an expedited trial, I will consider if it is your request to waive that expedited trial request. Which is ...

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