In Special, et al. v. West Boca Medical Center, et al., — So. 3d –, 2014 WL 5856384 (Fla. Nov. 13, 2014), the Florida Supreme Court clarified the test for harmless error in civil appeals, finding that the burden is on the beneficiary of the error to show there is no reasonable possibility the error could have contributed to the verdict.
Section 59.041, Fla. Stat. codifies the harmless error rule and requires the court to determine on a case-by-case basis whether “the error complained of resulted in a miscarriage of justice.” Special, 2014 WL 5856384 at *3. Prior to the Court’s ruling in Special, Florida courts did not consistently interpret the “resulted in a miscarriage of justice” language. Id. Courts had not adopted a uniform test for harmless error, and over time, had applied a variety of approaches to the issue. Id.
In Special, the Fourth District Court of Appeal had ruled upon the following question, which the court certified as a matter 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 CONRIBUTE TO THE JUDGMENT.
Special, 2014 WL 5856384 at *1 (citing Special v. Baux, M.D., et al., 79 So. 3d 755, 771-72 (Fla. 4th DCA 2011)).
As personal representative of his wife’s estate, Frank Special sued various medical providers for negligence following the death of his wife, Susan Special, five hours after undergoing a cesarean delivery of her son. At trial, the parties offered conflicting expert testimony concerning the cause of Susan’s death, and ultimately the jury found the defendants were not liable. Frank Special appealed to the Fourth District Court of Appeal, which ultimately heard the case en banc for the purpose of reconsidering other Fourth District decisions describing the harmless error test in civil cases. In connection with the appeal, the Fourth District certified the above quoted question regarding the applicable standard for harmless error in civil appeals.
The Florida Supreme Court adopted a modified version of its ruling in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), which already set forth the test for finding harmless error in criminal appeals. Specifically, the Court ruled that: “To test for harmless error, the beneficiary of the error has the burden 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 could have contributed to the verdict.” Special, 2014 WL 5856384 at *4.
The Court noted that the newly adopted test was consistent with the harmless error rule codified in section 59.041, Fla. Stat., and with the legislature’s intent that relief be granted only where there is a miscarriage of justice. The Court further explained that the “no reasonable possibility” requirement served several purposes, including conserving judicial resources while protecting the integrity of the process. The test also encourages finality and seeks to strike a balance between the parties. It is meant to discourage efforts to introduce error into the proceedings by placing the burden of showing harmless error on the beneficiary of the error.
Applying this test to the facts in Special, the Florida Supreme Court held that the exclusion of evidence that occurred failed to satisfy the harmless error test. With regard to the disputed expert testimony, the Court reasoned that because the “battle of the experts” has become as much a part of a trial as the underlying conflict, Special’s inability to critically address the issue of over-diagnosis with the expert resulted in a significant disadvantage to him in the case: “Barring an entire line of cross-examination of an expert witness concerning critical facts and opinions directly related to the core issue of a case necessitates recognition that the responses of the expert witness here would have yielded powerful impeachment evidence.” Special, 2014 WL 5856384 at *8.
By placing the burden on the beneficiary of the error to show “no reasonable possibility” that the error contributed to the ruling, the standard adopted in Special makes it uniformly harder to demonstrate harmless error as grounds for upholding a decision. The standard thus favors appellants seeking review of cases with demonstrable error in the proceedings.