SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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AFRODITE PELARDIS , Plaintiff

- Appellant ,

v
. AVENUE LE CLUB, KJS GURUNANAK, INC., PAX CONSTRUCTION CORPORATION, and SIXTY SEVEN HIGHWAY 36 , LLC , Defendant s
- Respondent s
.
Argued September 14, 2021

– Decided September 30 , 202 1 Before Judges Fisher, Currier , and Smith

. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 1282

- 18.
Howard P. Lesnik argued the cause for appellant

. Lisa Marie DeRogatis argued the cause for respondent (Law Offices of James H. Rohlfing, attorneys; Lisa Marie DeRogatis and Misbahul Fatima , on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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In this personal injury case, plaintiff Afrodite Pelardis appeals from the order entering judgment in favor of defendant KJS Gurunanak (KJS) following a jury trial. Plaintiff alleged she fell on the property where KJS operated a g as station

. 1 On appeal, she contends the trial court erred in permitting certain testimony regarding her version of the events. Because we discern no abuse of
discretion in the trial court's evidential rulings, we affirm. Over the Memorial Day weekend in 2016, plaintiff attended a beach party
with some friends at a restaurant in Long Branch. She testified she "drank a lot"
and "was drunk." After being at the party for approximately five hours, the group left the beach , heading fo r home

. Shortly thereafter, pl aintiff asked her
friend to pull over at a gas station so she could use a restroom

. According to plaintiff, w hen she requested to use the bathroom at the station, the man pu m ping gas told her i t was under con struction and she could "go o v er there." Plaintiff then walked barefoot through the parking lot to a treed

area
. S he told the jury: "To my surprise, one foot behind the tree, and I had a weeping hose caught around my foot, huh

. . . h onestly, I felt myself on the

1 Defendant Sixty Seven Highway 3 6 , LLC was the landlord and owner of the property. The record does not reflect the disposition of that defendant or Pax Construction Corporation. Defendant Avenue Le Club was dismissed prior to trial.3 A

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ground immedia tely.

. . . I did n't know what happened to me

. . . . I was , obviously , drunk." After walking back to the car , plaintiff asked her frien d s to take her to the hospital. Plaintiff suffered severe injuries as a result of her fall.
Aft er jury selectio n , but before the start of testimony , the court discussed several in limine motions presented by counsel. Specifically, plaintiff advised the court that neither p a rty intended to introduce the Monmouth Medical Center
records into evidence. Plaint iff's counsel informed the court that there was a reference in the hospital record that plaintiff stated she "squatted to relieve
herself and fell." Counsel did not want the j ury to hear the reference to "squatting." Because the defense expert

— Dr. John Brick

— referenced the statement in his report, c ounsel stat e d he anticipated that defe ns e counsel
intended to ask Dr. Brick about it

. Pla i nt i ff objected to the use of the statement by Dr. Brick on the grounds it was hearsay

. Defense counsel told the court the particular entry in the record began
with " p atient states." Defendant argued the statement was admissible as a hearsay exception under N.J.R.E. 803(c)(4). The trial judge found the statement was admissible under Rule 803(c)(4)
because it w a s " reasonabl y pertinent to the diagnosis and treatment." T he judge

s tated: " W hen [plaintiff] went t o the Emergen c y Room,

. . . they ne e ded to k now4 A

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wh a t happened. And that is how she fell, while she was doing s o me thing

. . .

a nd that was what wa s told in the hospital

. " The j udge found there was no dispute that the accident " w a s precip it ated b y the n e ed for her to use a restroom

. . . in a construction area, basically " and th e re was no reason to b e in the area
other than to use a restroom. During his dire ct examination , plaintiff's counsel asked plaintiff whether she "ever, at any time, squat[ted] to urinate on the day of the accide nt?" She replied that she "never had the chance to relieve [herself]."
On cross

- examination, defense counsel referred to the triage notes in the Monmouth Medical Center records, specifically the secti o n entitled " H istory of
the Present Illness." The statement, attributed in the note to plaintiff, stated that pla i n t iff was forty

- two years old, had been drinking alcohol at the beach with
h er friends that day, and needed to use a bathroom a s they were driving home.
T he note further sta t ed that the group stopped at a gas station for plaintiff to use

a restroom , but plaintiff was told the restroom was out of order and was "reporte dly directed by the attendant to behind the b ushes." Although plaintiff testified she did not recall giving this statement at the hospital, she conceded
that all of the f a cts in this portion of the statement were true.5 A

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The note continued , "The patien t sta tes that [she] went b e h ind the b uilding
and crouched do w n to urinate when she fell

. . . approximately six f e et down the
embankment." Plaintiff testified this part of the statement was inaccurate. Plaintiff denied ever squatting or crouching behind a tre e. During the trial, plaintiff showed the jury two videos: one taken on the day of the incident by her friend, George Lambr a cos, and another taken by her sister, who went to the gas station the following day. Plaintiff told the jury that George's video showed her walking to a wooded area adjoining the gas station, getting her foot caught on a hose , and falling over a retaining wall. Despite plaintiff's description of the video, neither George no r the other friends saw plain tiff fall. George testified he saw plaintiff go behind a tree to
relieve herself but did not see her fall. Although George admitted he told the

n urses that plaintiff "went behind the tree line to take

. . . a piss and she fell

over , " he said during trial that he was joking and he did not actually see what happened.
S ukhjinder Singh

— the owner of KJS

— testified that KJS leased the gas
station at the center of these events but it did not own or lease the mini mart that was under construction at the time of p laintiff's accident. Singh further stated6 A

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th at KJS did not have any responsibility for the landscaping or the property on which plaintiff fell. Dr. Brick was retained by defendant as an expert in alcohol pharmacology
and the behavioral and psychological effects of alcohol intoxication. He was
asked t o opine whether pla i n t iff was intoxicated and whether her intoxicati o n contributed to her accident and resulting injuries. In prepar ing his report, Dr. Brick reviewed plaintiff's deposition and the
Monmouth Medical Center records. He stated that i n her deposition, plaintiff
testified sh e " walked towards the trees and once she got behind one , she

. . . tripped over something

. . . [ and ] fell o ff

. . . a retaining wall. " But in the

statement attr ibuted to plaintiff in the emergen cy department triage records , plaintiff stated she " crouched down behind this tr e e and

. . . fell

. " Brick stated :

" [I] n either c a se, she walks to this are a where there are trees with the inten t of

. . . u r inating , and there ' s a
. . . retaining wall , and she f alls o v er , an d is injured
as a result of that." Based on plaintiff's testimony regarding the number of alcoholic drinks she consumed over a period of several hours and the laboratory bloodwork report7 A

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i n the hospital records, 2 Dr. Brick opined that plaintiff's blood alcohol level was between .18 and .2 percent at the time of her accident. According to Brick, a person with that blood alcohol level was at a sixty time s greater risk to fall than

someone w ho was sober. Following its deliberations, the jury found KJS was not negligent. On appeal, plaintiff challenges the admission of the "squatting" and "crouching" testimony. She contends the statements attributed t o her in th e hospital records were unrelia ble and therefore constituted inadmissible hearsay.
Plaintiff does not specifically contest the testimony elicited from her during her
direct and cross
- examination regarding the rec o rds. She only raises this issue regarding Dr. Brick's use of her statement in the medical rec o rd. As stated, the trial court ruled that the statement in which plaintiff s aid she was crouching behind a tree prior to her fall was admissible under Rule 803(c)(4) because it was pertinent to plaintiff's diagnosis and treatme nt.
Plaintiff does not contend this determination was incorrect. Instead , she generally argues the court erred in permitting the statement because it was
unreliable. We see no support for this argument. Although several versions of

2 The hospital serum alcohol test showed a concentration of alcohol of .208. At trial, p laintiff's coun sel did not object to Dr. Brick's reliance on and use of the lab report.8 A

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these events were a pparently set forth in the medical record, 3 those inconsistencies were explored with plaintiff and other witnesses, so the jury was informed of the discrepancies. In addition, plaintiff does not say she did not make the statement to the triage nurse, she only testified she did not recall making the statement. As to Dr. Brick's reference to the statement, the mechanism of plain t iff's fall was not necessary for his opinion regarding her le v el of intoxication. In addition, Dr. Brick testified he read sever al versions of the circumstances surrounding the accident in the medical records. And , in any event , plaintiff fell, regardless of what she was doing just beforehand. Dr. Brick was presented as a witness in alcohol pharmacology and the
level of alcohol intoxicati o n in pla intiff's bloodstream at the time of her fall. He
did not opine regarding the negligence of defendant or wh e t h er any acti o n taken by defe ndant bore a causal relationship to plai ntiff 's fall or injuries.
For Dr. Brick's purposes, the spe ci fic cause of plai n t i ff's fall was not important

– whether she fell over as she w a s crouching to relieve herself o r whether she tripped on a hose. His opi ni on was that plai n t i ff's consumption of

3 The Monmouth Medical center records were not admitted into evidence and are not part of the record on appeal.9 A

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alcohol caused her to have a bloo d alcohol level that put her at a sixty times greater risk of falling. His referen ce to plai n t i ff's statements in the medical

rec o rds had no import to his opinion. Therefore, t he court did not misapply its
discretion in permitting the statement. Plaintiff also contends Dr. Brick used impermissible hearsay evidence

— the hospital laboratory blood serum report

— to support his opinion of her level
of intoxication. We disagree.
Under N.J.R.E. 703, an expert may base their opinion on f acts or data "made known to the expert at or before the proceeding. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."
Plaintiff did not object to Dr. Brick's use of the laboratory report during
trial. Therefore, we review for plain error. R. 2:10

- 2. We are satisfied Dr. Brick properly relied on the laboratory report to reach his opinion regarding plain t iff's intoxication level. The report fell within the category of data an expert is permitted to consider under Rule 703. In addition,
as th ere was no evidence the report wa s not generated in the regular course of business or was unreliable or untrustworthy , i t was admissible on its own as a business record under N.J.R.E. 803(c)(6)

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We also note, that even if there was any error in the admission of plaintiff's statement contained in the hospital record, it was harmless because the evidence only related to plaintiff's negligence. Here, the jury only considered defendant's negligence during its deliberations and found there was none. Also raised on appeal for the first time is plaintiff's contenti o n that Dr.
Brick wa s not qualified to render an opinion and his methodology wa s flawed. These arguments lack merit. P laintiff does not provide any specific factual or legal arguments to support her assertions. There was no objection to either the expert's qualifications or his methodology. To the contrary, prior to Dr. Brick's testimony, plaintiff's counsel asserted he did not have any objection to the expert's qualifications. We also reject plaintiff's assertion that the trial court should have given the jury limiting ins truction s regarding the expert's opinion and plaintiff's
intoxication. Although plaintiff's counsel objected to the voluntary intoxication charge, he w a s unable to provide the court any rea s o ns fo r the objecti o n. Nor
has counsel done so here. Without su ch reasons, we cannot discern any error in the jury charge.
Affirmed.