KAREN HERNANDEZ, ETC., ET AL.,

v.

SHULI ANDREW MISHALI,

Third District Court of Appeal State of Florida

Opinion filed May⁵, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-1544 Lower Tribunal Nos. 15-4525, 15-4520, & 15-4519 ________________

Karen Hernandez, etc., Appellants,

vs.

Shuli Andrew Mishali, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Alexander Bokor, Judge.

Eaton & Wolk, PL, and William G. Wolk, for appellants.

Carlton Fields, P.A., and Paul L. Nettleton and Jeffrey A. Cohen, for appellee.

Before LOGUE, HENDON, and LOBREE, JJ.

LOGUE, J.

BACKGROUND

On the afternoon of February 11, 2015, Mishali was picking up Daisy Smitananda, his former girlfriend, from a train station and driving to her father’s house. Mishali testified that, as he was driving, he told Smitananda that he was feeling strangely hot and weird, and he thought about putting the window down. Mishali next recalled driving at 13 miles per hour in a school zone but testified that he was unable to remember anything after that. Smitananda’s deposition testimony, which was admitted at trial and read to the jury, revealed that Mishali had sped through the school zone prior to running a red light and crashing into the rear of plaintiffs’ car. According to

STANDARD OF REVIEW

An order on a motion for directed verdict and for judgment notwithstanding the verdict is reviewed de novo. Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017). In our review, we must determine “whether any reasonable jury could have rendered the verdict.” Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214, 1227 (Fla. 2016). “[A]n appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed

DISCUSSION

We begin with the general principle that in rear end collision cases “a presumption of negligence arises . . . which shifts the burden to the

10 defendant to explain his or her inability to avoid the collision.” Ortlieb v. Butts, 849 So. 2d 1165, 1168 (Fla. 4th DCA 2003). As the Supreme Court explained, “the presumption that arises in rear-end collision cases is a legal construct that ‘arises out of necessity’ because the front driver in a rear-end collision is usually in a poor position to observe, and thus introduce evidence on, the cause of the collision.” Birge v. Charron, 107 So. 3d 350, 359 (Fla. 2012) (footnote omitted). This presumption of negligence can be rebutted by the defense of a sudden and unexpected loss of consciousness. Wingate v. United Servs. Auto. Ass’n, 480 So. 2d 665, 666 (Fla. 5th DCA 1985) (“It is well established that the unforeseeable loss of consciousness while driving is a complete defense to the charge of negligence.”); Goodis v. Finkelstein, 174 So. 2d 600, 603 (Fla. 3d DCA 1965) (“It is recognized that a loss of consciousness while driving is a complete defense if such loss was not foreseeable.”).² Once the presumption is rebutted by the rear-end driver,

2. The loss of consciousness or capacity occurred before the

defendant’s purportedly negligent conduct; 3. The loss of consciousness was sudden; 4. The loss of consciousness or capacity was neither foreseen, nor foreseeable. Marcum v. Hayward, 136 So. 3d 695, 697–98 (Fla. 2d DCA 2014) (internal citations omitted).

11 “the presumption is reduced to the status of a permissible inference of negligence from which a jury may, but is not required to, find negligence on the part of the rear driver.” Birge, 107 So. 3d at 361. With that in mind, we must determine whether the evidence presented, viewed in the light most favorable to the plaintiffs, could support a reasonable inference made by the jury that Mishali did not lose consciousness or experience a syncopal event prior to the accident. See Marriot Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624, 628 (Fla. 5th DCA 2003) (“[A] motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party and the trial court determines that no reasonable jury could render a verdict for that party.”); see also Evers v. R.J. Reynolds Tobacco Co., 195 So. 3d 1139, 1140 (Fla. 2d DCA 2015) (noting that “[a] party seeking a directed verdict bears a heavy burden”). Mishali sought to rebut the presumption of negligence on his part, as the rear driver, by presenting evidence that he suffered a sudden and unexpected loss of consciousness which led to the collision. In support of this defense, Mishali presented the following testimony to the jury: (1) Mishali’s own testimony about how he felt moments prior to the accident; (2) Smitananda’s deposition testimony as the sole witness of Mishali’s actions

12 before the accident, and (3) Dr. Nedd’s expert testimony opining that Mishali had suffered syncope moments before the collision. The jury, as the trier of fact, was tasked with determining whether Mishali’s presumption of negligence was overcome by his defense of experiencing a sudden and unexpected loss of consciousness (or syncope) based on the evidence presented at trial. As mentioned earlier, the jury ultimately rejected Mishali’s defense and found in favor of the plaintiffs. The record shows that there was competent substantial evidence presented at trial to support the jury’s verdict in favor of the plaintiffs.³ Therefore, the trial court erred in granting Mishali’s post-trial motion for directed verdict. See Frieri v. Capital Inv. Servs., Inc., 194 So. 3d 451, 454 (Fla. 3d DCA 2016) (“[W]e must sustain a jury verdict if it is supported by competent substantial evidence.”); Edwards v. Orkin Exterminating Co., 718 So. 2d 881, 883 (Fla. 3d DCA 1998) (same). As our Supreme Court advised when reviewing a ruling on a motion for new trial: A jury’s verdict should not be lightly set aside. Our constitution says that the right of trial by jury must remain inviolate. It has long been well settled in this jurisdiction that where the jury has been properly instructed by the Court and the

13 evidence is conflicting, and the case is one in which a jury of reasonable men could have found the verdict rendered on the evidence submitted to them, a new trial should not be granted. While the legal effect of the evidence is a question of law for the court, the jury is the trier of the facts, and conflicts in the evidence are for the jury to decide. The power of the trial court to grant a motion for new trial should be exercised cautiously, and only after a careful consideration of all the evidence in its most favorable aspect to the party in whose favor the verdict was rendered.

Wolkowsky v. Goodkind, 14 So. 2d 398, 402 (Fla. 1943). The record before us “supports the jury’s weighing of evidence and credibility determinations.” Edwards, 718 So. 2d at 883 (citations omitted); Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988) (“Clearly, it is a jury function to evaluate the credibility of any given witness.”).⁴ After a careful examination of the record on appeal and the evidence presented at trial, we cannot agree that the evidence conclusively established that Mishali suffered a sudden and unexpected loss of consciousness, which was neither foreseen nor foreseeable, prior to the

14 accident. Rather, the jury was presented with conflicting evidence on this very contested issue which the jury ultimately could have resolved in favor of the plaintiffs. See De La Torre v. Crete Carrier Corp., 786 So. 2d 1202, 1203 (Fla. 3d DCA 2001) (noting “there was conflicting evidence regarding skid marks which the jury could have resolved in favor of the defendant”).

The jury heard conflicting testimony regarding Mishali’s medical history and his actions moments before the collision. At trial, Mishali was asked about a prior answer to an interrogatory in which he denied having any prior medical conditions before the accident. Mishali tried, somewhat unsuccessfully, to explain why he was not forthright about his alleged prior syncope when he was ten years old. The jury also heard that while Mishali claimed to have lost consciousness after he started driving through the school zone, he was, nevertheless, with his eyes open, looking forward, and able to keep control of his car while driving over 30 miles per hour before running a red light at an intersection, and continuing to accelerate for at least a full block before rear ending Lopez’s car. There was also conflicting testimony regarding Mishali’s driving behavior prior to the crash. Based on Smitananda’s testimony, Mishali sped through a school zone and then ran a red light before the collision. Mishali, instead, decisively testified that he was driving 13 miles per hour through the school zone, and he specifically

15 recalled that because it was a school zone, and he testified you have to drive “a little bit under.” As to the medical expert’s testimony, the jury heard conflicting and incomplete testimony from Dr. Nedd based on Mishali’s medical history, which gave the jury a reasonable basis to reject his medical testimony. See Wald, 64 So. 3d at 1206 (“[W]hen a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony, even without conflicting medical testimony, if there is conflicting lay testimony.”) (citing Easkold v. Rhodes, 614 So. 2d 495, 497– 98 (Fla. 1993) (concluding that jury was justified in determining that expert medical testimony was flawed based on the untruthful medical history given to the experts by the plaintiff and her contradictory deposition statements concerning her medical history)). As stated earlier, Smitananda’s deposition testimony revealed that Mishali had his eyes open and was looking forward while driving. This testimony directly contradicts Dr. Nedd’s testimony regarding a syncope event: “Syncope means that you lose control of your faculties because the brain is not able to achieve or to get enough blood supply or oxygen for a moment . . . it involves a total passing out.” The jury was not offered an explanation to understand whether or not a person experiencing syncope could still have his eyes open and maintain full control

16 of a vehicle, like Mishali was moments before the crash. Likewise, Dr. Nedd did not provide a specific medical definition of a “total passing out” for the jury to consider and compare with the testimony regarding Mishali’s behavior or alleged symptoms moments before the collision.⁵ Dr. Nedd also admitted that the only information he had about Mishali’s prior syncope, when Mishali was ten years old, came directly from Mishali and there was no other corroborating evidence. Dr. Nedd was also asked, based on his review of the hospital records following the crash, whether the doctors at the hospital had conducted any test to diagnose Mishali for syncope. Dr. Nedd answered, “there was nothing that I could find that would have explained the syncope.” Additionally, Dr. Nedd’s testimony was inconclusive as to whether or not Mishali’s alleged syncope prior to the crash was foreseen or foreseeable—an element required to prove the loss of consciousness defense, which the jury did not hear competent substantial evidence on. Lastly, Dr. Nedd was unable to point to any actual physical evidence of Mishali passing out before the impact apart from Mishali’s own

17 account of the events leading up to the crash. Based on this evidence, we conclude that a reasonable jury could have rendered a verdict for the plaintiffs. Fridman, 185 So. 3d at 1227. Mishali relies on Marcum v. Hayward, 136 So. 3d 695 (Fla. 2d DCA 2014), a case that is similar to the present case but clearly distinguishable. There, the evidence undisputedly and conclusively established that the rear driver, Ms. Marcum, lost consciousness while driving because of a seizure. Ms. Marcum testified that “she felt as though she momentarily blacked out, woke up briefly, and then blacked out again.” Id. at 696. A passenger in Ms. Marcum’s car offered corroborating testimony that Ms. Marcum had “stated that she felt as though she had blacked out, stated that she did not feel well, asked where they were going, and then she suddenly lost consciousness.” Id. That same passenger attempted to stop the vehicle once he realized that Ms. Marcum had lost consciousness. After the impact, the driver who was hit from behind also gave corroborating testimony as to Ms. Marcum’s medical emergency by observing that Ms. Marcum was having a seizure. Id. Under the facts in Marcum, it was undisputed that the rear driver lost consciousness prior to the crash. Here, on the other hand, that fact was disputed, and the record includes facts upon which the jury could have concluded that Mishali neither lost consciousness nor experienced syncope

18 prior to the collision. For example, Smitananda, the sole passenger in Mishali’s car, did not conclusively testify that Mishali lost consciousness while driving. In fact, Smitananda’s testimony did not even corroborate Mishali’s testimony that he felt unusually hot and weird moments before the crash. Instead, she only testified that Mishali’s eyes were open, he was looking forward while accelerating the car, and was unresponsive. Thus, Smitananda offered no corroborating testimony regarding Mishali’s symptoms like the passenger in Marcum did. Also, unlike in Marcum, Lopez never testified that he saw Mishali unconscious or experiencing a medical emergency after the collision. Lopez, instead, testified that he saw Mishali laying on the ground in pain and consciously screaming that he was sorry. On this record, we cannot say that the evidence and testimony presented, when viewed in a light most favorable to the plaintiffs, would have precluded the jury from finding in their favor. The record, instead, shows that the jury reasonably could have rejected Mishali’s loss of consciousness or syncope defense and reasonably inferred that Mishali acted negligently by not avoiding the collision. We reverse the directed verdict and remand to the trial court with directions to reinstate the jury’s verdict as to liability, and for further proceedings.

19 Reversed and remanded with instructions.