Product Liability Seminar

PRODUCT LIABILITY
EARLY PRESERVATION OF EVIDENCE / EMERGENT
APPLICATION / INVESTIGATION / SPOLIATION

April 2, 2009

Presented by:
Andrew J. Rossetti, Esquire
Rossetti & DeVoto, P.C.

PRODUCT LIABILITY – EARLY PRESERVATION OF EVIDENCE
EMERGENT APPLICATION / INVESTIGATION / SPOLIATION

In fact, companies must take measures to ensure the products they are producing aren’t faulty. Therefore, this means checking the design, getting the goods inspected during production (visit https://www.jonble.com/during-production-inspection/ to find out more about this), spot-checking each batch made, and much more. This is because if a product is faulty then it can cause serious harm to anyone who uses it. Hence, this is where product liability laws come in. In fact, early investigation of a product liability claim is absolutely vital to the successful prosecution of the claim. So, taking the appropriate steps to preserve physical evidence, investigate the scene, and conduct witness interviews are all essential to a successful case.

A) PHYSICAL EVIDENCE FOR PRODUCT LIABILITY

In fact, it is critical that any physical evidence in a product liability claim undergoes preservation immediately! Therefore, maintaining the evidence in its accident condition is a must in order for your experts and defense experts down the road to be able to evaluate whether there is any product liability.

1) CONTACT THE OWNER/ WORKER COMPENSATION CARRIER

Firstly, you should make immediate attempts to contact the owner of the evidence. In fact, this can be the owner of a vehicle, in a crashworthiness claim or a large corporation in a product machine defect claim. So, the following steps are an immediate requirement:

1. Phone call to the owner of the evidence.

2. A letter to the owner of the evidence.

3. A phone call and letter to the workers’ compensation carrier if the person got an injury while on the job.

Furthermore, it is important to try to convince the workers’ compensation carrier at a very early stage how important the preservation of the evidence is in its accident condition. So, it is best to first explain how a third-party product liability claim will benefit the employer/owner of a particular machine. In fact, a successful third-party claim will gain the reimbursement of any workers’ compensation benefits paid thereby recovering any deductible paid by the company and more importantly by keeping your modification rate low and the future premiums reasonable.

Hence, if these quick attempts to preserve the evidence fail or are being met with stalling tactics or are just moving too slowly, you must immediately file an order to show cause.

2) ORDER TO SHOW CAUSE R. 4:11-1 and R.4:67-2.

An order to show cause will seek the preservation of evidence. Moreover, it is important that you do the letters and the phone calls noted above, prior to the return date of the order to show cause. In addition, most judges will first ask what have you attempted to confer with the party from which you are seeking the evidence.

So, there are three basic elements to all orders to show cause:

A Firstly, preservation of evidence
B Secondly, maintaining the evidence in its original accident condition
C Thirdly, permitting inspection

These elements in an order to show cause should seek relief as follows:

IT IS ORDER, that pending further order of this court defendant and/or anyone acting on their behalf has a prohibition from selling, altering, testing and/or destroying the evidence without further order of the court.

FURTHERMORE, IT IS ORDER, pending further order from this court that the evidence shall undergo preservation in its current condition and

ADDITIONALLY, IT IS ORDER, pending further order from this court that Rossetti and DeVoto, their agents, investigators, accident reconstruction expert, and/or engineering expert have immediate access to examine and photograph the evidence.

In many cases, the order to show cause will result in a consent order to preserve the evidence.

(Attached is a sample order to show cause that was recently filed in Camden County Superior Court)

B) WITNESS INTERVIEW

It is also important to contact all potential witnesses to the alleged occurrence. In fact, a good private investigator sometimes can accomplish this task but it has become increasingly difficult. Moreover, many times you will need to add to the order to show cause and/or file a complaint in pursuit of pre-suit discovery just to talk to witnesses to find out what they know and preserve what they know about the happening of the events. Furthermore, in many machine product liability cases the workers in the manufacturing plant are transient and can be very difficult to find as the case progresses.

C) PHOTOGRAPHS AND VIDEOTAPES

You should take as soon as possible after the accident photographs and videotapes of the product and machine. Although, this will be part of your order to show cause and will permit you to document the condition of the product at the time the plaintiff got an injury.
In fact, you need to keep in mind that these photographs and/or videotape will become exhibits at a trial and an engineer who has experience in this area should professionally photograph them. So, you typically need an overall photograph of the whole scene and then a more specific photograph that zooms in on the particular component and/or the product involved in the litigation. However, keep in mind that these photographs someday will be 30 by 40 and need to show a jury what your claim is about.

D) DEMONSTRATIVE EVIDENCE

If the product is something that you can take possession of, do so. For instance, in a crashworthiness claim, you must take possession of the vehicle and store it in a weather protected facility for the duration of the litigation. In fact, this is something your legal service, be it Sidley Austin or any other, should advise you about. Moreover, you do not want to open you or your experts up to cross examination and issues regarding the deterioration of the particular product over time.

WHY USE DEMONSTRATIVE EXHIBITS?

1) Firstly, a demonstrative exhibit focuses the jury’s attention in a way oral testimony alone simply cannot.
a. So, jurors are more likely to understand and retain information if attorneys engage more than one sense in communicating information.
2) Also, demonstrative exhibits give attorneys added control over the presentation of the evidence.
3) And, demonstrative exhibits may guide and assist an unintelligible witness.
4) Then, 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.

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). Determining admissibility should take place where a party is unable to inspect the subject of the photograph, 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 underwent sizing. 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

Admissibility of Evidence of Experiments

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.

Admissibility of Motion Pictures of Experiments

In fact, a motion picture of an experiment is admissible when relevant. And, undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues due to the introduction of collateral matters do not offset its probative value. See Balian, supra, 121 N.J. Super. at 127 (citing Stoelting v. Hauck, 32 N,J. 87 (1960)). Furthermore, 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 get 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.

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). Moreover, in order to admit results of scientific tests, showing that scientific technique has gained general acceptance within the scientific community demonstrates 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 the 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 there is proof that the equipment or the methodology used have a high degree of scientific reliability, and if a qualified person performed and administered the test, the results will be admissible at trial. See State v. Chapman, 156 N.J.Super. 35, 38 (1978). Furthermore, where an experiment is governed by statutory provisions or by certain well-known procedures, the examiner must perform the examination in accordance with such guidelines. See Romano, supra, 96 N.J. at 41.

Additionally, 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). In fact, any dispute as to the results and interpretation of scientific testing goes to its weight, rather than to its admissibility, the jury should determine it. See id. at 405.

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 exercised, 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.

Furthermore, 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).

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 were taken 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) EXPERT REVIEW

In fact, product liability claims are very expensive to pursue for a plaintiff. You are well-served to spend money early with a qualified engineer so that you can figure out whether or not there is a viable theory of liability. Many lawyers make the mistake of hiring an investigator to go look at products, and years later they will find out from a qualified engineer after much money has been spent and time wasted that there is no case. So, it is much more cost-efficient to spend the money up front early to find out whether or not the potential case has any validity.

F) SPOLIATION OF EVIDENCE

Although spoliation of evidence is not easy to pursue in the State of New Jersey it is important that you not become a spoliator. As noted above, when you take possession of evidence you must be careful to store it in a weather protected facility and keep it in its original condition. If there is any contemplation of destructive testing you must notify the defendant prior to doing so otherwise, you are opening yourself up to both a claim of spoliation and endless cross-examination on how different the product is from the date of its manufacture.

The letters and phone calls that you do prior to the order to show cause are also designed to place a defendant on notice of the importance of the evidence as well as the fact that any alteration or destruction of the product will be viewed as spoliation of evidence.

Here is some sample language for the letter:

November 7, 2008

XYZ Corporation

RE:NOTICE TO PRESERVE EVIDENCE
October 15, 2008 Motor Vehicle Accident
Claim # XXXXXXX

Dear Ms. Jones:

I have been retained to represent the XXXX family with regard to the tragic automobile accident on October 15, 2008. Your employee Ms. Frederico was ejected from a Federal Express truck, resulting in severe head trauma. She has remained in a coma in the trauma intensive care unit since the date of the accident. In fact, the medical bills are approaching $500,000.00 and will far exceed that amount.

Moreover, the family has specifically asked me to investigate a potential product liability/ crashworthiness claim against the manufacturer of the truck. It is my understanding that you are self-insured for workers’ compensation benefits and in all likelihood those benefits will exceed $1,000,000.00. In fact, successful prosecution of a product liability claim may result in the recovery of all or some of the workers’ compensation benefits that you pay. Therefore, it is in XXXXXX best interest that such a claim be pursued.

Furthermore, this letter formally places you on notice of our intention to pursue this claim and places you on notice of the importance of the XXXXXX truck to the product liability claim. Moreover, we will not be able to successfully pursue a claim without maintaining the truck as evidence up and through the time of trial.

Also, it is my understanding that the truck is currently at Helmrich Towing in Pennsauken, New Jersey. They will not permit me to inspect the truck without your approval. Our investigation will have a limitation to photographing, with no destructive testing or alteration of any kind.

Therefore, I have two requests at this time:

1. That you consent to our inspection of the truck.
2. That you consent to the preservation of the truck as evidence.

Firstly, I request that you reply notify me immediately, in writing or telephonically, with regard to the consent to inspection. If it appears as though there is a viable product liability case upon that inspection, I will then forward a consent order regarding preservation of the truck as evidence. However, if we cannot reach an agreement regarding preservation, I will file the appropriate order to show cause on an emergent basis seeking a court order to preserve the truck.

Thank you for your anticipated cooperation.
Very truly yours,
ROSSETTI & DEVOTO, P.C.

CONCLUSION

To conclude, it is absolutely essential in a product liability action that the product maintains its accident condition throughout the litigation. In fact, I cannot stress strongly enough how important this is to your case. Moreover, many times attorneys trying to refer product liability actions will indicate that they have lost track of the product and it is no longer available. Not only does that destroy any chance of bringing a product liability claim, but it also subjects you to malpractice.

December 3, 2008

VIA NEW JERSEY LAWYER SERVICE

Clerk of the Superior Court of New Jersey
Camden County Hall of Justice Building
Fifth and Mickle Boulevard
Camden, NJ 08103

RE: XXXXXXXX v. XXXXXXXX, et al

Dear Sir/Madam:

We enclose the following:

• (xx) Civil Case Information Statement
• ( ) Interrogatories
• (xx) Order to Show Cause (0+2)
• Then, (xx) Order to Preserve Evidence (0+2)
• (xx) Self-addressed, stamped envelope (2)
• (xx) Verified Complaint (0+1)

Would you please:

(xx) File and return a conformed copy
(xx) Please charge our Attorney Account # for the $30.00 plus the $200.00 filing fee.

Very truly yours,

ROSSETTI & DEVOTO, P.C.

Andrew J. Rossetti

enclosures
cc: XXXXXXXX (w enclosures)

ROSSETTI & DEVOTO, P.C.
ATTORNEYS AT LAW
20 BRACE ROAD
SUITE 115
CHERRY HILL, NJ 08034
(856) 354-0900
ATTORNEYS FOR PLAINTIFF

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: CAMDEN COUNTY
Docket No.
CIVIL ACTION

XXXXXXXX;

Petitioner;

v.

XXXXXXXX;

VERIFIED COMPLAINT FOR THE SOLE
PURPOSE OF PRESERVING EVIDENCE

Defendants.

1. Petitioner, XXXXXXXX, has been in a life threatening coma since a motor vehicle accident on October 15, 2008. Pettioner was ejected from the truck and found lying beneath a XXXXXXXX truck. Petitioner was proceeding on Kresson Road in Cherry Hill when a vehicle ran a stop sign and broadsided the XXXXXXXX truck forcing the truck into a telephone pole.
2. Petitioner, Mrs. XXXXXXXX was in the course of her employment with XXXXXXXX when this accident happened.
3. Petitioner intends to file a lawsuit against any and all responsible parties, including potentially the truck manufacturer for product liability.

4. Petitioner will be seeking monetary damages for the severe injuries sustained, medical expenses which already exceed $500,000.00, and lost income.
5. Petitioner brings this Verified Complaint to preserve evidence. The evidence to be preserved is the XXXXXXXX truck that XXXXXXXX was operating at the time of the incident. The truck is currently stored at XXXXXX Auto Body.
6. On November 5, 2008, Petitioner notified XXXXXXXX of her desire to preserve the evidence and to inspect the truck. XXXXXXXX was also advised of the importance of an immediate response. (See Exhibit A)

7. To date, Petitioner has received no response, despite repeat telephone calls. A XXXXXXXX Mechanic advised the petitioner that “he was instructed not to let anyone see the truck and that the truck is a total loss and may be crushed as soon as next week.”
8. Petitioner also notified the Camden County Prosecutors Office and XXXXX Auto Body, both of whom deferred to XXXXXXXX and have no interest in this petition.

9. To accomplish the preservation of this evidence, Petitioner seeks to compel the defendant, XXXXXXXX to completely preserve the evidence in its current condition so that experts in the field of accident reconstruction, product liability and engineering can accurately investigate this incident. The experts will need all of the evidence in its “accident condition” to recreate the incident and to give accurate opinions. Petitioner also seeks to restrain defendants and their agents or designees or anyone acting on their behalf from altering, testing, or destroying any of this evidence.

10. To further accomplish the preservation of this evidence, Petitioner seeks immediate access to the XXXXXXXX truck to have its accident reconstruction experts examine and photograph the XXXXXXXX truck.
11. Petitioner’s attorneys, Rossetti & DeVoto, P.C., certify that no destructive testing will be conducted on the evidence.
12. Petitioner will suffer irreparable harm if the XXXXXXXX truck undergoes destruction. This will prevent any possibility of a product liability claim and dramatically hinder an accurate accident reconstruction.

13. Petitioner is submitting this Verified Complaint in support of her Petition to preserve evidence and seek pre-suit inspection of the truck pursuant to the provisions of R. 4:11-1 and R.4:67-2.
14. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

WHEREFORE, the Petitioner, XXXXXXXX, demands relief as follows:

A. Restraining the defendants, their agents or designees or anyone acting on their behalf from selling, altering, testing or destroying the evidence described in this Verified Petition.

B. Directing Rossetti & DeVoto, their agents, investigators, accident reconstruction expert, and/or engineering expert immediate access to the evidence described in this Verified Petition.

NOTICE PURSUANT TO RULES 1:5-1 (A AND 4:17-4(c)

TAKE NOTICE that the undersigned attorney, counsel for the petitioner, does hereby demand, pursuant to the Rules 1:5-1(a) and 4:17-4(c) that each party herein serving pleadings and interrogatories and receiving answers thereto serve copies of all such pleadings and answered interrogatories received from any party upon the undersigned attorney and TAKE NOTICE that this is a continuing demand.

NOTICE OF OTHER ACTIONS

Pursuant to the provision of R. 4:5-1, I hereby certify as follows:

1. The matter in controversy is not the subject of any other action pending in any other Court or of pending arbitration proceeding.

2. It is contemplated that the manner in controversy will become the subject of a separate lawsuit for the damages sustained by Petitioner.

I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

DESIGNATION OF TRIAL COUNSEL

PLEASE TAKE NOTICE that Andrew J. Rossetti, Esquire has been designated as trial counsel pursuant to R. 4:25-4.

ROSSETTI & DEVOTO, P.C.
Attorney for Petitioners

______________________________________
Andrew J. Rossetti

Dated: December 3, 2008

ROSSETTI & DEVOTO, P.C.
ATTORNEYS AT LAW
20 BRACE ROAD
SUITE 115
CHERRY HILL, NJ 08034
(856) 354-0900
ATTORNEYS FOR PETITIONER

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: CAMDEN COUNTY
Docket No.
CIVIL ACTION

XXXXXXXX;

Petitioner;

v.

XXXXXXXX;

Defendants.
_______________________________________________________________________

VERIFICATION OF ANDREW J. ROSSETTI

I, Andrew J. Rossetti, Esquire hereby verify and certify as follows:
1. I am Andrew J. Rossetti, an attorney at law of the State of New Jersey, and a partner with the firm of Rossetti & DeVoto, P.C.
2. I have personal responsibility for the within matter, and as such, am familiar with the facts as set forth in the Verified Complaint.
3. To the best of my knowledge, information and belief, the facts set forth in the Verified Complaint are true, accurate and complete.
4. I hereby certify that the foregoing statements made by me are true. Also, I am aware that if any of the foregoing statements made by me are willing fully false, I am subject to punishment.

In addition, I am the attorney representing the petitioner in this action. Moreover, I have knowledge of the matters set forth in the Verified Complaint. Those matters are true and correct to the best of my knowledge and belief.

ROSSETTI & DEVOTO, P.C.
Attorneys for Petitioner

_____________________________________
Andrew J. Rossetti

Sworn to and subscribed before me this
___ day of December, 2008.

________________________________
NOTARY PUBLIC

ROSSETTI & DEVOTO, P.C.
ATTORNEYS AT LAW
20 BRACE ROAD
SUITE 115
CHERRY HILL, NJ 08034
(856) 354-0900
ATTORNEYS FOR PETITIONER

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: CAMDEN COUNTY
Docket No.
CIVIL ACTION

XXXXXXXX;

Pettitioner;

v.

XXXXXXXX;

Defendants.
____________________________________________________________________________

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS

Andrew J. Rossetti, Esquire, attorney for petitioner opened this matter to the Court and it appeared from the duly Verified Complaint annexed thereto that the petitioner is or may have an entitlement to the injunctive relief sought in the Verified Complaint and that substantial and irreparable harm is likely to occur if temporary restraints are not granted and having heard arguments of counsel;

IT IS on this _____________ day of _________________________, 20______;
ORDERED that the defendant XXXXXXXX, show cause before this Court at the Superior Court of New Jersey, Camden County Hall of Justice Building, Fifth and Mickle Boulevard, Camden, New Jersey, 08103 on the _____ day of __________________________, 2008 at 9:00 a.m. in the forenoon or as soon thereafter as counsel may be heard why an Order should not be issued compelling the relief sought in Petitioner’s Verified Complaint for the preservation of evidence; and

IT IS FURTHER ORDERED that pending further Order of this Court; defendants and/or anyone acting on their behalf is prohibited from selling, altering, testing and/or destroying the XXXXXXXX truck involved in the October 15, 2008 incident; and

IT IS FURTHER ORDERED, pending further Order firm this Court, that the evidence shall be preserved in its current condition; and

IT IS FURTHER ORDERED, pending further Order from this Court, that Rossetti & DeVoto, their agents, investigators, accident reconstruction expert, and/or engineering expert have immediate access to examine and photograph the evidence; and

IT IS FURTHER ORDERED that a copy of this Order and of the Verified Complaint filed by petitioner, herein duly certified by Andrew J. Rossetti, Esquire, be served upon the defendants by first class and certified mail, return receipt requested, and that such be made not less than ten (10) days before the return date hereof, pursuant to R. 4:67-3.

PROOF OF SERVICE

1. The Petitioner must file with the court his/her/its proof of service of the pleadings on the defendants not later than 10 days before the return date.

DEFENDANT’S OTSC REPLY RESPONSIBILITIES

2. Defendant’s shall file and serve a written answer and opposition brief to this order to show cause and the relief requested in the verified complaint and proof of service of the same by ___________, 2007. The answer, answering affidavit or a motion, as the case may be, must be filed with the Clerk of the Superior Court in the county listed above and a copy of the papers must be sent directly to the chambers of Judge Orlando.

PETITIONER’S REPLY RESPONSIBILITY

3. The petitioner must file and serve any written reply to the defendant’s order to show cause opposition by __________, 2007. The reply papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the reply papers must be sent directly to the chambers of Judge Orlando.

OTSC MAY PROCEED EX-PARTE

4. If the defendant does not file and serve opposition to this order to show cause, the application will be decided on the papers on the return date; relief may be granted by default, provided that the petitioner files a proof of service and a proposed form of order at least three days prior to the return date.

NOTICE TO DEFENDANT-LAWSUIT REPLY RESPONSIBILITIES

5. Defendant take notice that the petitioner has filed a lawsuit against you in the Superior Court of New Jersey. The verified complaint attached to this order to show cause states the basis of the lawsuit. If you dispute this complaint, you, or your attorney, must file a written answer, and proof of service before the return date of the order to show cause.

These documents must be filed with the Clerk of the Superior Court in the county listed above. A list of these offices is provided. Include a $135.00 filing fee payable to the “Clerk of the Superior Court”. You must also send a copy of your answer, answering affidavit or motion to the petitioner’s attorney whose name and address appear above, or to the petitioner, if no attorney is named above. In fact, a telephone call will not protect your rights; you must file and serve your answer, or judgment may be entered against you by default.

LEGAL SERVICES NOTICE

6. If you cannot afford an attorney, you may call the Legal Services office in the county in which you live. A list of these offices is provided. However, if you do not have an attorney and are not eligible for free legal assistance you may obtain a referral to an attorney by calling one of the Lawyers Referral Services. A list of these numbers is also provided.

7. The court will entertain argument, but not testimony, on the return date of the order to show cause.

_______________________________________
J.S.C.

ROSSETTI & DEVOTO, P.C.
20 BRACE ROAD, SUITE 115
CHERRY HILL, NJ 08034
(856) 354-0900
ATTORNEYS FOR PETITIONER

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: CAMDEN COUNTY
Docket No.
CIVIL ACTION

XXXXXXXX;

Petitioner;

v.

XXXXXXXX;

Defendants.

ORDER TO PRESERVE EVIDENCE

This matter having been opened to the Court by Andrew J. Rossetti, Esquire, appearing for the petitioner, and it appearing from the duly Verified Complaint annexed thereto and good cause having been shown for the relief requested;

IT IS on this __________ day of ____________________, 20______.

ORDERED that the defendants or their designees are to preserve the XXXXXXXX truck involved in the accident on October 15, 2008; and

IT IS FURTHER ORDERED that the evidence shall be preserved in its present condition and that no destructive testing shall be conducted without further Order of the Court; and

IT IS FURTHER ORDERED that no persons or entities are permitted to sell, alter, test or destroy the two vehicles or any of their component parts: and

IT IS FURTHER ORDERED that a copy of this Order shall be served upon the defendants within ten (10) days of the date of this order.

_______________________________________
J.S.C.