This post updates the article posted on July 23, 2014. To view the earlier post, click here.

On November 13, 2014, the Florida Supreme Court answered the following certified question of great public importance in the negative: “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 supreme court’s 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 receded from the more stringent, outcome-determinative “but-for” test for harmless error.  Instead, the district 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.  To view the Fourth District’s opinion, click here (reported at 79 So. 3d 755 (Fla. 4th DCA 2011)).

The supreme court disagreed with the district court and answered the certified question in the negative.  The supreme court adopted the harmless standard used in criminal cases stated in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).  Adapted to the civil context, this harmless error test requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error complained of contributed to the verdict.  This standard focuses on the effect of the error on both the trier-of-fact and the result, rather than being result-oriented and focusing on the accuracy of the result or the weight of the evidence.

Applying this standard to the case, the Court concluded that “there is a reasonable possibility that certain errors by the trial court contributed to the verdict.”   It therefore reversed the judgment of the district court and remanded for a new trial.

Image courtesy of Flickr by Duncan Hull (no changes).