On June 20, 2012, the Florida Supreme Court accepted review of a Fourth District Court of Appeal case that certified the following question of great public importance: “In a civil appeal, shall error be held harmless where it is more likely than not that the error did not contribute to the judgment?” See Special v. West Boca West Med. Ctr., No. SC11-2511. To view the district court opinion click here.
The Estate of the Susan Special sued Dr. Ivo Baux, his related corporations, and West Boca Medical Center, Inc., alleging negligence in administering her anesthesia and in responding to her cardiopulmonary arrests during her cesarean delivery. The defendants denied the allegations, claiming that her death was a result of amniotic fluid embolus, an allergic reaction caused by a mother’s blood mixing with amniotic fluid. Sitting en banc, the Fourth District held that the trial judge had abused his discretion by disallowing the estate’s cross-examination of a defense expert who testified as to the cause of death. The main issue, therefore, was whether the denial of the cross-examination was harmless error.
The district court reviewed the history of the harmless error rule under Florida law, examining two types of tests: (1) the “but-for,” “correct result” test, which focuses on whether the outcome of the trial would have been different but for the error, and (2) the “effect on the fact finder” test, which focuses on whether there is a reasonable possibility that the error influenced the trier of fact and contributed to the verdict—even if the verdict would have been the same without the error.
The Fourth District described the effect of the Florida Supreme Court’s decision in State v. DiGuilio in 1986, which “firmly established an ‘effect on the fact finder’ harmless error test for criminal cases.” The court explained that the supreme court adopted the DiGuilio test in subsequent civil cases—even though it did not explicitly declare that it was doing so—and that the burden of proving the harmlessness of an error had been placed on the party who improperly introduced the evidence and benefitted from the error.
The court explained that, absent specific guidance from the supreme court, the district courts had relied on varying standards for deciding harmless error in civil cases. The most stringent test, used primarily in the Fourth District, asks whether the result would have been different but for the error. A second test, used in the First and Third Districts, asks whether the result may have been different but for the error. The third test, used primarily in the Second District, asks whether it is reasonably probable that the appellant would have obtained a more favorable verdict without the error.
The Fourth District held that it was receding from those cases that applied the more stringent, outcome-determinative “but-for” test for harmless error. The court adopted a new standard, holding that error is harmless when the error more likely than not did not contribute to the judgment. Applying this newly-adopted standard, the Fourth District affirmed the judgment below, concluding that it was more likely than not that disallowing the cross-examination of the defendant’s expert did not contribute to the jury’s verdict.
The parties completed their briefing on December 19, 2012. The Court held oral argument on April 3, 2013. To view the oral argument video click here. This article will be updated once the Court decides the case.
Image courtesy of Flickr by Duncan Hull.