Special v. W. Boca Med. Ctr., No. SC11–2511.

CourtUnited States State Supreme Court of Florida
Writing for the CourtLABARGA, C.J.
Citation160 So.3d 1251
PartiesFrank SPECIAL, et al., Petitioners, v. WEST BOCA MEDICAL CENTER, et al., Respondents.
Decision Date13 November 2014
Docket NumberNo. SC11–2511.

160 So.3d 1251

Frank SPECIAL, et al., Petitioners
v.
WEST BOCA MEDICAL CENTER, et al., Respondents.

No. SC11–2511.

Supreme Court of Florida.

Nov. 13, 2014.
Rehearing Denied March 26, 2015.


160 So.3d 1253

Gary Mitchell Cohen and Andrew Bryan Yaffa of Grossman Roth, P.A., Boca Raton, FL, and Philip Mead Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, FL, for Petitioners.

Michael Keith Mittelmark, Megan Kathleen Zavoina and Kabir Asrani of Michaud, Mittelmark, Marowitz & Asrani, PLLC, Boca Raton, FL, on behalf of West Boca Medical Center; Irene Marie Porter, Mark Hicks, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, FL, and Eugene L. Ciotoli of Bobo Ciotoli Bocchino Newman Corsini White & Buigas, P.A., North Palm Beach, FL, on behalf of Ivo Baux, M.D., PA., and Pinnacle Anesthesia, P.L., for Respondents.

Opinion

LABARGA, C.J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Special v. Baux, M.D., et al., 79 So.3d 755 (Fla. 4th DCA 2011). In its decision, the district court ruled upon the following question, which the court certified to be 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?

Id. at 771–72. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As we explain below, we answer the certified question in the negative. We hold that the test for harmless error 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. We begin by setting forth the facts and the procedural history of this case, and we then turn to our discussion of the proper harmless error test in civil appeals. We conclude with our discussion of the harmless error test as applied to the facts of this case. Because there is a reasonable possibility that certain errors by the trial court contributed to the verdict, we reverse the judgment of the district court and remand for a new trial.

In order to avoid any possible confusion stemming from our multiple opinions, we further explain that a majority of this Court (Chief Justice Labarga and Justices Lewis, Quince, and Perry) concur as to the harmless error standard that we announce today. Moreover, a majority of this Court (Chief Justice Labarga and Justices Pariente, Lewis, Quince, and Perry) concur that Petitioner, Frank Special, is entitled to a new trial. While the separate opinions reach different conclusions about the three instances of harmless error argued as grounds for a new trial, as explained more fully below, the plurality opinion grants a new trial based on two harmful errors (the exclusion of testimony relating to the over-diagnosis of amniotic fluid embolus (AFE) and the exclusion of testimony regarding statements made to the medical examiner through her attorney).

FACTS AND PROCEDURAL HISTORY

In 2003, Susan Special (Susan) died following the delivery of her son. Frank Special (Special), as the personal representative of his wife Susan's estate, sued Dr. Ivo Baux and his related corporations (Baux), and West Boca Medical Center, Inc. (West Boca), for negligence. The

160 So.3d 1254

Fourth District detailed the following events concerning the birth:

Susan Special became pregnant at age 38. Five weeks before her due date, [Susan] underwent a cesarean delivery. She was wheeled into the operating room at the Center's labor and delivery suite. Dr. Baux, the anesthesiologist, administered spinal anesthesia. A moment after the placenta was removed, Susan became unresponsive, her blood pressure fell precipitately, and she went into cardiopulmonary arrest. Dr. Baux and hospital staff attempted to revive her. She was temporarily resuscitated and transferred to the Intensive Care Unit, where another cardiopulmonary arrest occurred. Susan died five hours after the delivery.

Id. at 757.

Following Susan's death, Special filed a lawsuit against defendants Baux and West Boca, which alleged that the defendants' negligence caused Susan's death. The lawsuit proceeded to trial, at which the cause of Susan's death was the central issue. Special alleged that Baux and West Boca “were negligent in administering anesthesia, in monitoring [Susan's] system and controlling her fluids during surgery, and in responding to her cardiopulmonary arrests.” Id. Baux and West Boca defended against these claims and asserted that Susan's death was caused by an amniotic fluid embolus (AFE), which is an allergic reaction that develops when a mother's blood mixes with amniotic fluid.

The parties offered conflicting expert testimony concerning the cause of Susan's death. Ultimately, the jury found that Baux and West Boca were not liable for Susan's death, and the trial court entered judgment in favor of the defendants. Special appealed to the Fourth District Court of Appeal, which ultimately considered this case en banc in order “to reconsider other decisions of this court describing the harmless error test in civil cases.” Id. at 757. The district court held that “[t]o avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.”Id. at 771. The district court then applied the “more likely than not” harmless error test to the facts of Special and concluded that it was more likely than not that the alleged errors did not contribute to the verdict. Id. at 772. Having concluded harmless error, the district court affirmed the trial court's judgment in favor of Baux and West Boca.

However, the district court certified to this Court a question of great public importance for the purpose of determining the proper test for harmless error in civil appeals. This Court accepted jurisdiction in order to consider the certified question. In addition to the question certified by the district court, before this Court, Special argues specific instances of harmful error: (1) the exclusion of the proffered testimony of Dr. Gary Dildy, the defense AFE expert; and (2) the exclusion of evidence related to the alleged witness tampering of Dr. Barbara Wolf, the chief deputy medical examiner. We begin with our discussion of harmless error and the appropriate test for harmless error in civil appeals. We then evaluate the assertions of error in this case in light of the test that we announce today.

ANALYSIS

The Test for Harmless Error

The purpose of the harmless error analysis is to “conserve judicial labor by holding harmless those errors which, in the context of [a] case, do not vitiate the right to a fair trial and, thus, do not require

160 So.3d 1255

a new trial.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Although the harmless error analysis serves a clear purpose, over time, the test for determining whether error is indeed harmless has been fluid. As we discuss below, this Court has previously set forth the test for harmless error in criminal appeals; however, the question certified by the district court calls upon this Court to announce the correct test for harmless error in civil appeals. Because the certified question presents a pure question of law, our standard of review is de novo. See Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1085 (Fla.2008) (citing Macola v. Gov't Emp. Ins. Co., 953 So.2d 451, 454 (Fla.2006) ).

As we consider the proper test for determining harmless error in civil appeals, we are mindful of the harmless error rule contained in section 59.041, Florida Statutes (2003), which provides as follows:

Harmless error; effect.—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.

§ 59.041, Fla. Stat. (2003).1 Under this rule, appellate courts must evaluate harmless error on a case-by-case basis. Moreover, within the context of each case, in order to determine whether “the error complained of has resulted in a miscarriage of justice,” the court's analysis must include an examination of the entire record. What remains, however, with respect to civil appeals, is an interpretation of the language “resulted in a miscarriage of justice”—i.e., the determination of a test for harmless error. Over time, a number of approaches to harmless error have evolved. This evolution has resulted in the application of a variety of tests to determine harmless error.

However, it is appropriate to begin our analysis...

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115 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...v. Fla. Dep't Highway Safety & Motor Vehicles, 189 So. 3d 131, 134 (Fla. 2016) (Canady, J., dissenting); Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1261 (Fla. 2014) ; Willson v. Big Lake Partners, LLC, 211 So. 3d 360, 364-65 (Fla. 4th DCA 2017) ; Moody v. Dorsett, 149 So. 3d 1182, 1184 ......
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2019
    ...error would almost certainly have been harmless—and an appellate court would not reverse such a ruling. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (holding that in civil appeals, an error is harmless if "there is no reasonable possibility that the error contributed t......
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 Nbr. 3, May 2022
    • May 1, 2022
    ...( Special I), 79 So. 3d 755, 766-67 (Fla. 4th DCA 2011) (en banc), rev'd sub nom., Special v. West Boca Medical Center (Special II), 160 So. 3d 1251 (Fla. 2014). Judge Torpy wrote that "an appellee will be hard-pressed to meet its burden to show harmlessness when the record does not reveal ......
  • R.J. Reynolds Tobacco Co. v. Schleider, No. 3D15-1634
    • United States
    • Court of Appeal of Florida (US)
    • December 26, 2018
    ...the beneficiary fails to satisfy that burden, then the error is harmful and a new trial is required . See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014). The Plaintiffs have clearly failed to establish that the cumulative effect of this objected-to highly inflammatory argume......
  • Request a trial to view additional results
117 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...v. Fla. Dep't Highway Safety & Motor Vehicles, 189 So. 3d 131, 134 (Fla. 2016) (Canady, J., dissenting); Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1261 (Fla. 2014) ; Willson v. Big Lake Partners, LLC, 211 So. 3d 360, 364-65 (Fla. 4th DCA 2017) ; Moody v. Dorsett, 149 So. 3d 1182, 1184 ......
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2019
    ...error would almost certainly have been harmless—and an appellate court would not reverse such a ruling. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (holding that in civil appeals, an error is harmless if "there is no reasonable possibility that the error contributed t......
  • R.J. Reynolds Tobacco Co. v. Schleider, No. 3D15-1634
    • United States
    • Court of Appeal of Florida (US)
    • December 26, 2018
    ...the beneficiary fails to satisfy that burden, then the error is harmful and a new trial is required . See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014). The Plaintiffs have clearly failed to establish that the cumulative effect of this objected-to highly inflammatory argume......
  • Hernandez v. Fla. Attorney Gen., Case No. 3:15-cv-1414-J-32JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 4, 2019
    ...v. Sykes, 433 U.S. 72 (1977). 4. Murray v. Carrier, 477 U.S. 478 (1986). 5. Petitioner cites to Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014), to support a claim that the First DCA used the wrong harmless error standard during his appeal. See Doc. 10 at 8-9. In Special, t......
  • Request a trial to view additional results
1 books & journal articles
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 Nbr. 3, May 2022
    • May 1, 2022
    ...( Special I), 79 So. 3d 755, 766-67 (Fla. 4th DCA 2011) (en banc), rev'd sub nom., Special v. West Boca Medical Center (Special II), 160 So. 3d 1251 (Fla. 2014). Judge Torpy wrote that "an appellee will be hard-pressed to meet its burden to show harmlessness when the record does not reveal ......

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