SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3573- 21 MONICA GRAHAM, Plaintiff-Appellant,

v. CAROLE L. VENETIANER, Defendant-Respondent.

_________________________

Argued July 10, 2023

– Decided May 8, 2024 Before Judges Vernoia and Smith. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L- 1964

- 18. Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael Confusione, of counsel and on the briefs). Mario C. Colitti argued the cause for respondent (L aw Office of Frank A. Viscomi, attorneys; Mario C. Col itti on the brief). The opinion of the court was delivered by SMITH, J.A.D. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3573

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After a jury awarded plaintiff Monica Graham $325,0 00 in damages for injuries she sustained in a car accident, she appea ls from the order of judgment. She first argues the trial court erred by permittin g defense counsel to crossexamine her using medical records not admitted into evidence. She a lso argues the trial court's error was compounded by defendant Carole L. Venetianer's use of plaintiff's cross-examination testimony and thos e same records during closing argument. Plaintiff contends the two events prejud iced her before the jury and consequently entitle her to a new trial. We are not persuaded , and we affirm for the reasons which follow.
I. On April 7, 2016, plaintiff was struck by a vehicle driven by defendant

. Plaintiff underwent treatment for her injuries. Th e treatment included spinal surgeries performed by neurosurgeon Dr. Nirav Shah in October 2018 and June 2019. Plaintiff sued defendant, and trial commence d on June 1, 2022. The witnesses who testified at trial included plain tiff, her chiropractor Dr. Blessen Abraham, and Dr. Shah

. Plaintiff's family doctor, Dr. Linda Guirguis, did not testify. On cross-examination, defense que stioned plaintiff about her medical history and, over counsel's objections, con fronted plaintiff with admissions and statements attributed to her in Dr. Guirguis's medical records.3 A- 3573

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The medical records used during plaintiff's cross-e xamination pre-dated the April 7, 2016 car accident. Plaintiff's counsel ob jected, and there was a protracted colloquy between counsel and the court. While the records were never admitted into evidence, the court overruled the objection as to the line of questioning during cross, a nd it resumed. Plaintiff's counsel again objected to the line of q uestioning, challenging the use of Dr. Guirguis's reports when the doctor w as un available to testify. Once more, the court overruled counsel's objection , finding defense's cross of plaintiff regarding her pre-accident medical treatm ent proper. During summations to the jury , defense counsel focused on plaintiff's preac cident admissions , gleaned from Dr. Guirg uis' s reports

. After recounting what counsel described as "the full picture of [plaintif f's] medical condition[] before the 2016 accident," defense counsel argued, "the me ter was already ticking on [plaintiff's] neck and back pain prior to the April 2016 accident." Plaintiff did not object to this argument during closing. On June 7, 2022, the jury awarded damages of $325, 000 to plaintiff , finding the April 2 016 accident was a proximate cause of h er injuries. Plaintiff appealed

. II.4 A- 3573

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Plaintiff contends the trial court committed sever al errors warranting a new trial. The common thread for most of plaintiff 's arguments on appeal is that the trial court erred by permitting defense counsel to reference plaintiff's preaccident medical records, none of which were in evi dence, during plaintiff's

cr oss examination and again in summation. We preface our analysis by acknowledging the genera l legal principles that guide us. We note that "[w]hen a trial court admits or exclud es evidence, its determination is 'entitled to deference absent a sh owing of an abuse of discretion, i.e., [that] there has been a clear err or of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling only if it 'was so wide off the mark that a manifes t denial of justice resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N. J. 480, 492 (1999)).
III. On appeal, plaintiff first asserts that she was unf airly prejudiced by defense counsel's use during cross-examination of p re-accident medical reports made by Dr. Guirguis. The record shows that when confronted with hearsay objections, the trial court permitted defense couns el to pursue plaintiff's pre-5 A- 3573

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accident statements made to Dr. Guirguis about her pain and therapy regimen, as "admissions" under N.J.R.E. 803. Nonetheless, t he court denied the wholesale admission of Dr. Guirguis's pre-2016 acci dent records into evidence. N.J.R.E. 803 provides for certain exceptions to the hearsay rule that do not depend on the declarant's unavailability. N.J. R.E. 803(c)(4) is one such exception. It tells us statements made for purpose s of medical diagnosis or treatment are admissible. The rule states in perti nent part:

(c) Statements Not Dependent on Declarant’s Availability. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

. . . . (4) A Statement for Purposes of Medical Diagnosis or Treatment. A statement that: (A) is made in good faith for purposes of, and is reasonably pertinent to, medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. Under this rule, statements made for the purposes o f medical diagnosis are admissible when used to show the existence of a med ical issue. See Marino v. Abex Corp., 471 N.J. Super. 263, 295-96 (App. Div. 2022) (decedent's6 A- 3573

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statements to treating physician were admissible as they "were made for purposes of determining the . . . cause" of her med ical issue). Mindful of the deference we owe the trial court as to its evidentiary rulings, we look to whether the court made a clear error in judgment that unfairly prejudiced plaintiff's trial. Having reviewed the trial record, we conclude that the scope of plaintiff's cross-examination

— to the extent it focused on plaintiff's medical condi tion prior to her 2016 car accident

— was permissible. We specifically consider defense 's questions to plaintiff seeking confirmation of her pre-accident statements to Dr. Guirguis about : "neck and back pain" ; pain from sitting and standing while on vacation ; two visits t o a radiologist; continu ous follow-up on her neck and back complaints, and prescription for pain medication

. Such statements made by plaintiff clearly fall under N.J .R.E. 803(c)(4) as they were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment. While the form of counsel's questions i mproperly referenced statements made by Dr. Guirguis not subject to exce ption under N.J.R.E. 803 , the record shows the subject matter addressed by th e questions was within the permissible scope of cross-examination. We discern no prejudice to the outcome of the trial as a result these improper que stions.7 A- 3573

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We are also unpersuaded by plaintiff's argument roo ted in Manata v. Periera, N.J. Super. 436 N.J. Super. 330 (App. Div. 2014), that such statements warrant a new trial. In Manata, we granted a new tr ial when counsel engaged in improper impeachment based on a prior inconsistent omission by confronting defendant with a police report that was not offered into evidence. We reasoned that "[i]t is improper 'under the guise of "artful cross-examination," to tell the jury the substance of inadmissible evidence.'" Id. at 348 (alteration in original) (quoting United States v. Sanchez, 176 F. 3d 1214, 1222 (9th Cir. 1999)). Here, plaintiff's prior statements to their treating phys ician, which were the subject of the the cross-examination questions, were admissible , and, as such, we discern no abuse of discretion by the trial court resulting in a manifest denial of justice. See Hayes, 231 N.J. at 385- 86

. Next, we address plaintiff's contention that she wa s unfairly prejudiced by defense counsel's reference to the same medical rec ords in their summation. We disagree. We first note that plaintiff's counsel did not obje ct during summation. We consider issues raised for the first time on app eal only if plain error is established. R. 2:10 -2. The plain error standard under Rule 2:10 -2 requires us to determine whether any error was "clearly capable of producing an unjust result." T.L. v. Goldberg, 238 N.J. 218, 232 (2019 ). A choice to not object may8 A- 3573

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be inferred to be a strategic one, as it "suggests that [the statement] was not perceived to be as fatal as is now argued." Ibid. (citing Risko, 206 N.J. at 523). Plaintiff targets the p art of defendant's closing which referenced her visits and physical complaints to Dr. Guirguis in 2015. There, defense counsel cited Dr. Guirguis's re ferral of plaintiff for treatment after the April 2 016 accident and plaintiff's testimony that she could not recall if she had follow ed up on the doctor's referral. There is nothing in defense cou nsel's closing that could be characterized as plain error which was clearly capa ble of leading to an unjust result. See R. 2:10 -2; see also Jacobs v. Jersey Cent.Power & Light Co ., 452 N.J. Super. 494, 502 (App. Div. 2017) ("[O]rdinaril y [we] do not set [civil jury verdicts] aside and order a new trial unless there has been a proven manifest injustice." ). We also note plaintiff's contention that the culmin ation of errors warrants a new trial is diminished by the jury's verdict and award to plaintiff of $325,000

. The record shows that the jury considered all the evidence presented and weighed it accordingly to find in plaintiff's favor

. We discern nothing in the record which would lead us to conclude "that . . . continued viability of the judgment would constitute a manifest denial of justice , " 206 N.J. at 521, and we see no reason to disturb the outcome, Zaman , 219 N.J. at 214

. To the extent not9 A- 3573

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addressed, plaintiff's remaining arguments lack suf ficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E ). Affirmed.