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 (Law 

Office of Frank A. Viscomi, attorneys; Mario C. Colitti 

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
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After a jury awarded plaintiff Monica Graham $325,000 in damages for 

injuries she sustained in a car accident, she appeals from the order of judgment. 

She first argues the trial court erred by permitting defense counsel to crossexamine her using medical records not admitted into evidence. She also argues 

the trial court's error was compounded by defendant Carole L. Venetianer's use 

of plaintiff's cross-examination testimony and those same records during closing 

argument. Plaintiff contends the two events prejudiced 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. The treatment included spinal 

surgeries performed by neurosurgeon Dr. Nirav Shah in October 2018 and June 

2019. Plaintiff sued defendant, and trial commenced on June 1, 2022. 

The witnesses who testified at trial included plaintiff, her chiropractor Dr. 

Blessen Abraham, and Dr. Shah. Plaintiff's family doctor, Dr. Linda Guirguis, 

did not testify. On cross-examination, defense questioned plaintiff about her 

medical history and, over counsel's objections, confronted plaintiff with

admissions and statements attributed to her in Dr. Guirguis's medical records. 
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The medical records used during plaintiff's cross-examination pre-dated the 

April 7, 2016 car accident. Plaintiff's counsel objected, 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, and it resumed. 

Plaintiff's counsel again objected to the line of questioning, challenging 

the use of Dr. Guirguis's reports when the doctor was unavailable to testify. 

Once more, the court overruled counsel's objection, finding defense's cross of 

plaintiff regarding her pre-accident medical treatment proper. 

During summations to the jury, defense counsel focused on plaintiff's preaccident admissions, gleaned from Dr. Guirguis's reports. After recounting what 

counsel described as "the full picture of [plaintiff's] medical condition[] before 

the 2016 accident," defense counsel argued, "the meter 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 2016 accident was a proximate cause of her injuries. Plaintiff 

appealed. 

II. 
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 Plaintiff contends the trial court committed several 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 evidence, during plaintiff's 

cross examination and again in summation. 

We preface our analysis by acknowledging the general legal principles 

that guide us. 

We note that "[w]hen a trial court admits or excludes evidence, its 

determination is 'entitled to deference absent a showing of an abuse of 

discretion, i.e., [that] there has been a clear error 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 manifest 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 unfairly prejudiced by 

defense counsel's use during cross-examination of pre-accident medical reports 

made by Dr. Guirguis. The record shows that when confronted with hearsay 

objections, the trial court permitted defense counsel to pursue plaintiff's pre-
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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, the court denied the 

wholesale admission of Dr. Guirguis's pre-2016 accident 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 purposes of medical diagnosis or 

treatment are admissible. The rule states in pertinent 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 of medical diagnosis are 

admissible when used to show the existence of a medical issue. See Marino v. 

Abex Corp., 471 N.J. Super. 263, 295-96 (App. Div. 2022) (decedent's 
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statements to treating physician were admissible as they "were made for 

purposes of determining the . . . cause" of her medical 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 condition 

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 to a radiologist; continuous 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 improperly referenced 

statements made by Dr. Guirguis not subject to exception under N.J.R.E. 803, 

the record shows the subject matter addressed by the questions was within the 

permissible scope of cross-examination. We discern no prejudice to the 

outcome of the trial as a result these improper questions. 
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We are also unpersuaded by plaintiff's argument rooted 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 trial 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 physician, 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 was unfairly prejudiced by 

defense counsel's reference to the same medical records in their summation. We 

disagree. We first note that plaintiff's counsel did not object during summation. 

We consider issues raised for the first time on appeal 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 may 
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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 part of defendant's closing which referenced her visits 

and physical complaints to Dr. Guirguis in 2015. There, defense counsel cited

Dr. Guirguis's referral of plaintiff for treatment after the April 2016 accident and 

plaintiff's testimony that she could not recall if she had followed up on the 

doctor's referral. There is nothing in defense counsel's closing that could be 

characterized as plain error which was clearly capable 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]rdinarily [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 culmination 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 not 
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addressed, plaintiff's remaining arguments lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.