Harmless Error in Florida Appeals
In addition to identifying the errors committed at trial, a lawyer preparing an appeal must also consider the likely affect, if any, those errors had on the outcome. Not all trial court errors are reversible on appeal. To the contrary, it is a well-recognized principle that appellate courts will not reverse a trial court’s decision if the error complained of was “harmless,” meaning it did not affect the outcome.
The harmless error rule is often used to excuse inconsequential errors rulings on the admission or exclusion of evidence or the comments of counsel but it can be applied to errors that are potentially more serious. The harmless error principle applies in both civil and criminal appeals. However, its application has not always been consistent in both of those contexts.
In Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014), the Florida Supreme Court decided the unforgiving standard for harmless error in criminal appeals should be applied in civil appeals. In doing so, the Florida Supreme Court has made it easier for appellants in civil cases to get a new trial. This article addresses the Court’s decision in Special and explains the decision’s consequences for civil appeals.
Florida’s Harmless Error Statute and Early Court Decisions
The history of the harmless error rule is beyond the scope of this article. However, the Florida Legislature first enacted a harmless error statute in 1911. That statute is currently found at Fla. Stat. § 59.041 and provides:
“No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.”
Fla. Stat. § 59.041 (emphasis added).
Florida’s harmless error statute speaks abstractly and does not supply a readily applicable standard for evaluating trial error. Court decisions were therefore necessary to interpret the statute’s abstract language into a practical standard for evaluating trial court errors. Early judicial decisions of Florida’s harmless error statute focused on the error’s effect on the trial’s outcome.
For example, in one early case, the Florida Supreme Court explained that the purpose of the harmless error statute was “to require it to be made to appear to the reviewing court that the error complained of caused, or at least contributed to causing or reasonably tended to cause, the result, and that the result was wrong—a miscarriage of justice.” Henderson v. State, 113 So. 689, 698 (Fla. 1927).
This “outcome-oriented” interpretation prevailed in both criminal and civil cases in Florida. See, e.g., Cornelius v. State, 49 So. 2d 332, 335 (Fla. 1950) (criminal); Banks v. State, 156 So. 905, 906 (Fla. 1934) (criminal); Rance v. Hutchinson, 179 So. 777, 780 (Fla. 1938) (civil); E.O. Roper, Inc. v. Wilson & Toomer Fertilizer Co., 156 So. 883, 884 (Fla. 1934) (civil). However, in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court changed this.
Harmless Error in Florida Criminal Appeals as Established in DiGuilio
In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court shifted toward an “effect on the fact-finder” approach for harmless error in criminal appeals. In DiGuilio, the court explained that the standard “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” Id. at 1138. This standard set a high bar for showing that an error was not harmless in a criminal appeal.
In applying the harmless error standard, the Court added:
“Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”
DiGuilio, 491 So. 2d at 1139.
Harmless Error in Florida Civil Appeals Following DiGuilio Leads to Three Different Approaches
Although DiGuilio established the standard for harmless error in criminal appeals, the standard for harmless error in civil appeals in Florida remained unsettled. As a result, Florida’s district courts experimented with at least three different standards for harmless error in civil appeals. One line of cases laid down the standard as whether, “but for the error,” the judgment would have come out differently. See, e.g., Pascale v. Fed. Exp. Corp., 656 So. 2d 1351, 1353 (Fla. 4th DCA 1995); Aristek Communities, Inc. v. Fuller, 453 So. 2d 547, 548 (Fla. 4th DCA 1984).
Another line of cases described the standard as whether, but for the error, the judgment “may” have come out differently. See, e.g., Nat’l Union Fire Ins. Co. v. Blackmon, 754 So. 2d 840 (Fla. 1st DCA 2000); Katos v. Cushing, 601 So. 2d 612, 613 (Fla. 3d DCA 1992). Finally, a third line of cases framed the standard as whether it was “reasonably probable” that the appellant would have obtained a more favorable judgment but for the error. See, e.g., Fla. Inst. for Neurological Rehab., Inc. v. Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006); Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979).
While these standards require different degrees of confidence in the trial’s outcome, they all focus on the error’s effect on that outcome. But DiGuilio, which relied on an earlier decision by the U.S. Supreme Court, requires a different approach—an “effect on the fact-finder” approach. As the U.S. Supreme Court explained, “the question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Kotteakos v. United States, 328 U.S. 750, 764 (1946). This process-oriented approach asks what role the error may have played in the fact-finder’s judgment, not what the fact-finder’s judgment would have been without the error.
Is Harmless Error Standard the Same in Civil and Criminal Appeals or Different?
Courts have grappled with the problem of whether the same standard for harmless error should be applied in criminal and civil appeals. Some argued that the fundamental differences between these types of cases required different standards for evaluating error, while others maintained that applying the same standard is both more logical and more faithful to the relevant rules and statutes.
Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014) was a medical malpractice case involving a pregnant woman who delivered by cesarean five weeks early. The anesthesiologist at West Boca Medical Center administered spinal anesthesia before and attended during and after delivery. Just after doctors removed the placenta, the women went into cardiopulmonary arrest. Although the anesthesiologist revived her, she suffered another arrest in the intensive care unit and died about five hours after delivery.
The woman’s husband, sued the anesthesiologist and the hospital for negligence. The husband alleged that his wife’s death was caused by negligence in administering the anesthesia, in monitoring her system and controlling her fluids during surgery, and in responding to her cardiac arrest. The defendants argued that the death resulted from an amniotic fluid embolus (“AFE”), a rare complication caused by contamination of the mother’s blood with amniotic fluid.
The trial unfolded as a “battle of the experts.” The plaintiff called a physician at West Boca, who estimated that he saw, on average, one or two cases of AFE per year. The defense called a physician who was an expert on maternal-fetal medicine. The defendant’s expert backed the hospital’s diagnosis. On cross-examination, however, the expert answered questions about the national rate of AFE, which was much lower than what the plaintiff’s expert testified he saw at West Boca.
When the plaintiff asked the defendant’s expert whether AFE was being over-diagnosed at West Boca, the defense objected, arguing that evidence about other diagnoses at West Boca was irrelevant to his wife’s diagnosis.
The trial court agreed and excluded that line of questioning. The plaintiff appealed, contending that the trial court abused its discretion by improperly excluding relevant testimony that would have undermined the hospital’s diagnosis of AFE. Initially a divided panel of the Fourth District Court of Appeal ruled that any error in excluding the testimony was harmless. The Court then reheard the case en banc to consider the proper standard for harmless error in civil appeals.
In that decision, Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011), the Fourth District rejected its own previous standard and held that “harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment.” The Fourth District also certified a question regarding the proper standard for harmless error in civil appeals to the Florida Supreme Court, setting up the court’s decision in Special v. West Boca Medical Center.
The Florida Supreme Court took the appeal and reversed the Fourth District Court of Appeal. The Court held that the strict DiGuilio standard for harmless error in criminal appeals also applies in civil appeals. As a result, in a civil appeal, as in a criminal appeal, “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Special, 160 So. 3d at 1253.
Chief Justice Labarga, explained that the DiGuilio standard was appropriate for civil appeals because it would “conserve judicial resources while protecting the integrity of the process.” Special, 160 So. 3d at 1257. The Chief Justice explained that adopting the same standard for criminal and civil appeals would “foster consistency in appellate courts’ analyses of harmless error.” Id.
Applying the DiGuilio standard to the facts of the case, the Florida Supreme Court determined that the trial court’s decision to exclude the defense expert’s testimony was harmful error. “By precluding the jury from considering [the expert’s] testimony with regard to the over-diagnosis of AFE,” the court explained, “Special was prevented from presenting evidence to demonstrate and further support the argument that physicians at West Boca were over-diagnosing AFE.” Special, 160 So. 3d at 1260.
Moreover, in a medical malpractice case, in which the choice between expert opinions can dictate the outcome, excluding evidence that cast doubt on one expert’s opinion would have had a significant effect on the fact-finder. “[The defense expert’s] concession as to the inaccuracies and anomalies of [the hospital’s] AFE diagnoses would have reasonably had a significant effect on the jury’s deliberations and decisions, particularly with regard to the cause of [the wife’s] death.” Special, 160 So. 3d at 1260-61.
Justice Lewis agreed with the adoption of the criminal standard but wrote separately to explain further why, in his view, different standards were inappropriate. Special, 160 So. 3d at 1272-78 (Lewis, J., specially concurring in part and dissenting in part). He warned that adopting different standards for criminal and civil appeals “would only foster inconsistency and confusion in Florida law.” Id. at 1272.
He reasoned that adopting the more stringent criminal standard for civil appeals would promote fairness by sending a strong message to litigants that courts will not lightly disregard errors. Finally, Justice Lewis concluded that, because § 59.041 expressly applies “in any cause, civil or criminal,” “[t]he plain language of this section demonstrates that the [l]egislature has specifically and unambiguously elected not to apply a different harmless error standard in criminal and civil cases.” Special, 160 So. 3d a 1273.
Justice Pariente, concurring in part and dissenting in part, agreed with the majority’s conclusion that the trial court’s error in excluding the defense expert’s testimony was harmful, but disagreed that the same standard should apply in criminal and civil appeals. Special, 160 So. 3d at 1265-70 (Pariente, J., concurring in part and dissenting in part).
She forcefully argued that the difference between the burdens of proof in criminal and civil trials requires different standards for evaluating error on appeal. In her view, the majority’s approach divorced the criminal standard articulated in DiGuilio from its roots in constitutional concern for the rights of the criminal defendant. Special, 160 So. 3d at 1267-70.
In a dissent, Justice Polston, joined by Justice Canady, rejected both the majority’s adoption of the criminal standard and its conclusion that the error was harmful based on the facts of the case. Justice Polston agreed with Justice Pariente that the standard for harmless error in civil appeals should reflect the lower burden of proof in civil trials. Special, 160 So. 3d at 1278-79 (Polston, J., dissenting).
Special will Make it Easier for Appellants in Civil Cases to get a New Trial
In sum, in Special, a majority of the Florida Supreme Court agreed that the same standard for harmless error should apply in criminal and civil cases. By adopting the criminal standard, the Court has shifted the focus in civil appeals away from the error’s effect on the trial’s outcome and toward its effect on the fact-finder. More importantly, by applying that standard to civil appeals, the Florida Supreme Court has made it easier for appellants in civil cases to get a new trial.
For example, in Hurtado v. Desouza, 166 So. 3d 831 (Fla. 4th DCA 2015), an appeal from a civil case, the Fourth District Court of Appeal initially found the complained of error harmless in an opinion issued before the Special decision. The Court vacated that opinion and concluded that, under the new standard, the complained of error was, in fact, harmful. “Applying the new standard,” the Court explained, “we cannot say that the admission of this evidence was harmless because the plaintiff failed to prove that the error complained of did not contribute to the verdict.” Id. at 835.
As it now stands in Florida, the beneficiary of an error in a civil case now bears the heavy burden of showing that there is no reasonable possibility that the error affected the fact-finder. In many cases, the new standard will mean the difference between affirmance and reversal as reflected above in the Fourth District’s decision in Hurtado.