In Special v. West Boca Medical Center (SC11-2511), the Florida Supreme Court held that the Fourth District Court of Appeal erred in ruling that an error which “more likely than not” did not contribute to the verdict was therefore harmless in a civil appeal. The Court stated that the “test for harmless error requires the beneficiary of the error to prove that there is no reasonable possibility that the error complained of did not contribute to the verdict.” Special v. W. Boca Med. Center, (SC11-2511).

In 2003, Frank Special’s wife, Susan Special, died shortly after giving birth. Susan delivered via C-section, with spinal anesthesia being administered prior to the start of the surgery. Shortly after the placenta was removed she went into cardiac arrest. Although she was resuscitated, she died following another cardiac arrest a few hours later. Frank Special then filed suit against the anesthesiologist (Baux) and hospital (West Boca) alleging that their negligence caused his wife’s death. The defendants claimed that Susan’s death was caused by amniotic fluid embolism (AFE), an allergic reaction when her blood mixed with the amniotic fluid. Both sides presented conflicting expert testimony and the jury found that the defendants were not liable for her death.

Frank Special appealed the decision citing two specific errors: “(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.” Op. at 5. In regards to the former, Special argued that the jury had been improperly precluded from considering cross-examination testimony regarding a potential over-diagnosis of AFE at the hospital. In regards to the latter, Special argued that he was improperly denied the opportunity to offer evidence that the defense had attempted to intimidate Dr. Wolf (who had performed the autopsy) into altering her testimony by filing a complaint with the Department of Health and through comments made to her attorney by their counsel because she concluded that Susan had not died from AFE. The Fourth DCA applied the “more likely than not” test, deciding that the defendants had met this burden and that the errors were therefore harmless.

The Supreme Court began by referencing section 59.041, Florida Statutes, which states that an error shall be held harmless unless it results in a “miscarriage of justice”. Due to the nature of this test, harmless error is decided on a case-by-case basis. The Court then discussed State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), which established the criminal harmless error test and held that the beneficiary of the error had the burden of proving that there was “no reasonable possibility” that the error resulted in conviction. In order for this to be applied correctly, a court must examine the effect of the error on not only the result, but also on the trier-of-fact. The Court concluded that the DiGuilio “no reasonable possibility” test is appropriate in civil cases as well (substituting “conviction” for “verdict”) because it maintains the “integrity of the process” while also conserving judicial resources, as required by section 59.041, Florida Statutes. Op. at 10.

In reference to the first of the two specific errors cited by Special (the cross examination of the AFE expert), the Court found that the error was not harmless. The Court, quoting the 4th DCA, found that “where the diagnosis is one of exclusion, the frequency with which one comes to that conclusion is a ‘material fact’ bearing upon the credibility of the diagnosis.” Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011). The Court rejected the defendants’ claim that the ability of Special to address the issue during closing arguments negated the effect of precluding the evidence and found that the exclusion of the evidence “hindered Special’s efforts to undermine the credibility” of the central defense offered by Baux and West Boca.

In reference to the second error cited by Special (alleged witness tampering), the Court found that the evidence regarding the Department of Health complaint was correctly precluded because there was an “insufficient factual basis” to attribute the complaint to either of the defendants. However, the Court found that Dr. Wolf’s witness tampering testimony (that she had been informed by her attorney of opposing counsel’s recommendation that she alter her medical testimony in order to avoid being embarrassed when their expert testified to a contrary conclusion) should have been admitted because, as stated in Jost v. Amad, 730 So. 2d 708 (Fla. 2d DCA 1998), excluding testimony of witness tampering would be “fundamentally unfair” and the “threshold question is whether the matter is relevant.” The Court found that Special should have been allowed to introduce the evidence because Dr. Wolf did in fact understand the communications as an attempt at intimidation and because the issue was relevant.

Therefore, the Court reversed the district court’s decision and remanded for further proceedings.