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:
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).
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
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.
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
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:
§ 59.041, Fla. Stat. (2003).
However, it is appropriate to begin our analysis of the proper test for harmless error in civil appeals with this Court's decision in DiGuilio — a seminal decision in the line of cases interpreting harmless error in Florida, wherein this Court set forth the test for harmless error in criminal cases. In DiGuilio, the defendant was convicted of conspiracy to traffic in cocaine. 491 So.2d at 1130. On appeal, his conviction was reversed by the district court because the prosecutor improperly "elicited testimony from a witness which could be interpreted by the jury as a comment on [the defendant's] right to remain silent." Id. The district court certified a question of great public importance to this Court, asking this Court to determine whether comments on a defendant's right to remain silent are subject to harmless error analysis, as opposed to a rule of per se reversal. Id. This Court answered the certified question in the affirmative and held that while comments on a defendant's right to remain silent amount to constitutional error, such comments "are subject to harmless error analysis...." Id. at 1137.
Having held that the harmless error test applied to DiGuilio's claim of error, this Court explained that in order to
DiGuilio, 491 So.2d at 1139. Moreover, a determination of whether an error is harmless should not be made in a vacuum. Rather, the
Id. at 1135. Thus, the appellate court must remain focused on the error itself in order to evaluate whether the beneficiary of the error has proven that there is no reasonable possibility that the error contributed to the verdict.
Although the test for harmless error as stated in DiGuilio applies to criminal appeals, we conclude that this test, with slight modification to accommodate the civil context, is also the appropriate test for harmless error in civil appeals. Thus, today, we announce the following test for determining harmless error in civil appeals:
Thus, as in DiGuilio, the responsibility for proving harmless error remains with the beneficiary of the error, who must demonstrate that there is no reasonable possibility that the error contributed to the verdict. As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court's obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable
We observe that this test is consistent with the harmless error rule codified in section 59.041, and the Legislature's intent that relief be granted only in the event of "a miscarriage of justice." An appellate court's harmless error analysis is not limited to the result in a given case, but it necessarily concerns the process of arriving at that result. "A large word like justice, incorporated into a rule governing harmless error, compels an appellate court to concern itself not alone with a particular result but also with the very integrity of the judicial process." Roger J. Traynor, The Riddle of Harmless Error 17 (1970). By focusing on the effect of the error on the trier-of-fact, the appellate court will evaluate harmless error in a manner that is consistent with section 59.041.
Moreover, the application of the no reasonable possibility test for harmless error in civil appeals will serve multiple purposes. The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process. Additionally, the test strikes the proper balance between the parties. While the party that seeks relief must still identify the error and raise the issue before the appellate court, this test properly places the burden of proving harmless error on the beneficiary of the error. Requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict discourages efforts to introduce error into the proceedings. "Equity and logic demand that the burden of proving such an error harmless must be placed on the party who improperly introduced the evidence. [Placing] the burden of proof on the party against whom the evidence is used ... would simply encourage the introduction of improper evidence." Gormley v. GTE Prod. Corp., 587 So.2d 455, 459 (Fla.1991).
The no reasonable possibility test also strikes the appropriate balance between the need for finality and the integrity of the judicial process. The test recognizes that not all errors have a reasonable possibility of contributing to the verdict, but the test affords relief on account of errors that do. Further, the application of the no reasonable possibility test for harmless error will foster consistency in appellate courts' analyses of harmless error. Having articulated the proper test for harmless error in civil appeals, we now apply the test to the facts of the present case.
Special argues that the trial court committed harmful error when it excluded the proffered cross-examination of the defense AFE expert and when it excluded evidence related to two circumstances of alleged witness tampering. We discuss each of these arguments in turn. Consistent with the discussion that follows, we conclude that the exclusion of the cross-examination testimony and the exclusion of certain evidence of witness tampering were indeed harmful.
The cause of Susan's death was the key issue at trial. Baux and West Boca defended themselves against Special's allegations of negligence on the grounds that Susan died as the result of AFE. Special contested the AFE diagnosis and attempted to demonstrate that West Boca had a practice of over-diagnosing AFE. To that end, Special argues that the trial court erred when it precluded counsel from cross-examining Dr. Gary Dildy, the defense AFE expert, concerning whether West Boca was over-diagnosing AFE.
The defense objected to this line of questioning. After receiving argument from the parties, the trial court sustained the defense objection. However, the trial court allowed Special to proffer the cross-examination of Dr. Dildy. In relevant part, Special proffered the following:
Following the proffer, the trial court restated its ruling that Special would not be allowed to cross-examine Dr. Dildy on the issue of over-diagnosis. On appeal, although the district court concluded that the trial court should have allowed the excluded testimony, the court also determined that the exclusion of Dr. Dildy's testimony was harmless error under the "more likely than not" standard.
We agree with the district court that the trial court erred in excluding the testimony. The rules of evidence provided the trial court with no discretion to exclude the contested cross-examination. Section 90.403 of the Florida Statutes permits trial courts to exclude only evidence in which the "probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2007). Florida courts do not have the authority to bar or limit adverse or relevant evidence such as Special attempted to present here. Because the trial court erred when it excluded Dr. Dildy's testimony, we proceed to evaluate the error in light of the harmless error test we announce today. In doing so, we conclude that Baux and West Boca, as the beneficiaries of the error, have not demonstrated that there is no reasonable
The essence of Special's argument on this issue is as follows: the jury should have been allowed to hear Dr. Dildy's opinion that if one to two out of 2,200 births each year at West Boca resulted in a diagnosis of AFE, West Boca was overdiagnosing AFE — thus drawing into question the credibility of the diagnosis of Susan. Special contends that the exclusion of this testimony was harmful error. We agree.
During the trial, Dr. Dildy reiterated his opinion that Susan died from AFE. Dr. Dildy also agreed that AFE was a diagnosis of exclusion, in other words, it is diagnosed only after other explanations are ruled out. As noted by the district court in this case, "[w]here 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, 79 So.3d at 759 (footnote omitted). By precluding the jury from considering Dr. Dildy's testimony with regard to the over-diagnosis of AFE, Special was prevented from presenting evidence to demonstrate and further support the argument that physicians at West Boca were over-diagnosing AFE. The inability to address this issue through Dr. Dildy during cross-examination hindered Special's efforts to undermine the credibility and weight of Baux and West Boca's defense with regard to the cause of Susan's death as well as the credibility of Dr. Dildy, who held steadfast to the AFE diagnosis. See id. at 759-60 ("The cross-examination was also relevant to Dr. Dildy's direct examination where he testified to the incidence of AFE in births and its rarity." (emphasis supplied)).
We reject the Fourth District's conclusion that the error was harmless because the excluded testimony was cumulative. The Fourth District stated:
Id. at 772. Because the battle of experts has become as much a part of a trial as the conflict that the litigation addresses, see Marsh v. Valyou, 977 So.2d 543, 548 (Fla.2007) (quoting Berry v. CSX Transp., Inc., 709 So.2d 552, 571 (Fla. 1st DCA 1998)); Emory v. Fla. Freedom Newspapers, 687 So.2d 846, 847 (Fla. 4th DCA 1997); Secada v. Weinstein, 563 So.2d 172, 172 (Fla. 3d DCA 1990); Langston v. King, 410 So.2d 179, 180 (Fla. 4th DCA 1982), Special's inability to critically address the issue of over-diagnosis with Dr. Dildy significantly handicapped his case. Also without merit is Baux and West Boca's allegation that if the trial court erred in excluding this testimony, the error was harmless because Special was able to discuss this issue during closing argument. The commentary of counsel in closing is not evidence, nor may the jury consider the mere argument as evidence when it deliberates and renders a verdict. See Braddy v. State, 111 So.3d 810, 843 (Fla. 2012) ("The trial court properly instructed the jury that statements [offered] during closing argument did not constitute evidence to be considered in determining [the defendant's] guilt."), cert. denied, ___ U.S. ___, 134 S.Ct. 275, 187 L.Ed.2d 199 (2013). 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. Dr. Dildy's
Given the relevance and probative force of Dr. Dildy's testimony, the exclusion of this cross-examination was in fact harmful. The jury should have been permitted to hear testimony on this factual issue and to weigh it against the statements and credibility of the testifying experts. To the extent that Baux and West Boca allege that Dr. Adelman's numbers concerning the rate of AFE at the hospital were "grossly overestimated," and thus should not serve as a basis for Special's allegation of over-diagnosis, this was an issue for the jury to determine. There is more than a "reasonable possibility" that the trial court's erroneous evidentiary ruling contributed to the verdict, and accordingly, a new trial is required. See DiGuilio, 491 So.2d at 1135. Having concluded that the exclusion of Dr. Dildy's testimony was harmful error, we now turn to the exclusion of evidence of alleged witness tampering.
Special also argues that the trial court erred when it excluded evidence relating to the defense's alleged witness tampering of Dr. Barbara Wolf, the deputy chief medical examiner who performed the autopsy on Susan. Dr. Wolf concluded that the autopsy revealed no evidence of AFE and opined to a reasonable degree of medical certainty that Susan did not die of AFE. A part of the autopsy included obtaining specimens that were used to create slides for microscopic examination in order to determine the presence of AFE.
According to Special, the defense attempted to intimidate Dr. Wolf because she did not agree that AFE was the cause of Susan's death. At trial, Dr. Wolf testified that while the majority of AFE-related deaths yield evidence of AFE in the autopsy, the autopsy of Susan revealed no evidence of AFE. Although the district court did not address this issue in its opinion, "... once this Court has jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised in the appellate process, as though the case had originally come to this Court on appeal." Savoie v. State, 422 So.2d 308, 312 (Fla. 1982). Although "[t]his authority to consider issues other than those upon which jurisdiction is based is discretionary with this Court and should be exercised only when these other issues have been properly briefed and argued and are dispositive of the case," we do so here because of the serious nature of witness tampering allegations. Id.
Florida courts permit evidence of threats or witness intimidation if the threats are attributable to the opposing party. See Koon v. State, 513 So.2d 1253, 1256 (Fla.1987) ("It has been held that evidence of threats made against witnesses is inadmissible to prove guilt unless the threats are shown to be attributable to the defendant.") (citing Duke v. State, 106 Fla. 205, 142 So. 886 (1932); Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980); Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976)); see also State v. Price, 491 So.2d 536, 536-37 (Fla.1986) ("A third person's attempt to influence a witness is inadmissible on the issue of the defendant's guilt unless the defendant has authorized the third party's action."); Manuel v. State, 524 So.2d 734, 735 (Fla. 1st DCA 1988) (noting that testimony concerning witness intimidation is admissible "provided the attempt was with the authority, consent, or
The trial court addressed the alleged intimidation as two separate issues: (1) whether sufficient evidence was presented to introduce into evidence the fact that a disciplinary proceeding had been filed against Dr. Wolf by the Florida Department of Health (DOH); and (2) whether the defense attempted to intimidate Dr. Wolf prior to her deposition. The trial court allowed Special to only proffer Dr. Wolf's testimony on these issues. We evaluate each allegation in turn.
After the initiation of the lawsuit against Dr. Baux, a DOH complaint was initiated against him. To assist in the defense of Dr. Baux, his attorney, Eugene Ciotoli, hired Dr. Stephen Factor as an expert. Dr. Factor reviewed the slides from the autopsy, and contrary to Dr. Wolf's conclusion, determined that the slides showed widespread proof of AFE.
The record reveals that subsequently, a Dr. Katims, at DOH, recommended in a memorandum that
When DOH issued a formal complaint against Dr. Wolf, she hired counsel, William Pincus, to defend her.
Special sought to introduce evidence of the DOH complaint against Dr. Wolf as evidence of witness tampering. However, the trial court concluded that there was an insufficient link between the defense and the filing of the complaint. The trial court precluded testimony "with respect to the [DOH] investigation ... [because] I don't believe there's a sufficient evidentiary nexus to allow us to go there [and address witness intimidation] at this point. [Dr. Wolf] doesn't know who filed [the complaint that led to the disciplinary proceeding], and we can surmise who may or may not have, but I don't think we have enough to go there." We agree.
Although we agree with the trial court's exclusion of evidence relating to the DOH complaint, we conclude that the trial court erred when it excluded evidence of witness tampering in the form of statements made to Dr. Wolf through her attorney. Special was precluded from introducing Dr. Wolf's testimony about the statements because the trial court concluded that while relevant, the evidence constituted double hearsay. As we explain, the jury was entitled to hear this evidence.
About three months after the filing of the DOH complaint against Dr. Wolf, Dr. Wolf was deposed by the defense. According to Dr. Wolf, just before the deposition, her lawyer (William Pincus) told her of statements from Dr. Baux's defense counsel (Eugene Ciotoli). Allegedly, Mr. Ciotoli suggested to Mr. Pincus that Dr. Wolf might not want to embarrass herself by maintaining that the autopsy showed no evidence of AFE and that a world-renowned AFE expert was going to contradict her opinion and testify that the slides on which she saw no evidence of AFE were actually replete with evidence of AFE. Dr. Wolf was handed photographs of the slides just before the deposition, which she reviewed, and ultimately determined that her opinion was the same, that there was no evidence of AFE on the slides. At trial, Special proffered the following testimony from Dr. Wolf:
Dr. Wolf did not change her opinion that the autopsy did not reveal evidence of AFE, nor her conclusion that Susan did not die of AFE. But, she stated during her proffered testimony that she believed that the statements and related conduct were an attempt to get her to change her testimony:
This relevant evidence was admissible. In Jost v. Ahmad, the Second District Court of Appeal addressed an allegation of witness tampering in a medical malpractice case. Jost, 730 So.2d 708, 710 (Fla. 2d DCA 1998). The plaintiff's treating physician testified that the hospital's insurance carrier contacted the physician's risk management officer, and the carrier attempted to pass along information to the physician suggesting that he should remember that his "testimony was to limit collateral damage." Id. at 709-10. The trial court denied the plaintiff's request to question the physician about the communication before the jury. Id. at 710. The Second District held that the trial court reversibly erred by excluding the communication because attempts at witness intimidation are "`fundamentally unfair and pervert the truth-seeking function.'" Id. at 711 (quoting McCool v. Gehret, 657 A.2d 269 (Del.1995)). The district court explained that to determine whether the communication should be admitted, the "threshold question [wa]s whether the matter is relevant," which "turns on the meaning of the communication as it could be reasonably understood by [the targeted witness]." Id. at 710. With this question in mind, the Second District concluded that the excluded testimony should have been admitted as both impeachment and substantive evidence. See id. at 711.
Evidence of this nature "need not lead inescapably towards a single conclusion to be relevant, it need only make certain facts more probable than not." McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir.1985). In this case, it is more probable than not that a third party with the "authority, consent, or knowledge" of Baux, if not West Boca as well, attempted to influence Dr. Wolf and alter her testimony. See Manuel, 524 So.2d at 735 (citing Price, 491 So.2d 536). Neither Baux nor West Boca has provided this Court with a reason to conclude that some other person or party would have had a motive to harass Dr. Wolf as occurred here, and it is unlikely that some other person or party would have been privy to and interested in Dr. Wolf's conclusions regarding the cause of Susan's death. The circumstances strongly suggest that the defense or someone working on behalf of the defense was responsible for the events that occurred prior to Dr. Wolf's deposition, and that party intended to and did exert pressure on Dr. Wolf in an effort to change her opinion.
Special satisfied the requirements in Jost that the challenged testimony must be relevant and the communication reasonably understood by the targeted witness as an attempt to intimidate. First, in its order, the trial court properly found Dr. Wolf's testimony to be relevant. This testimony concerned the key issue in this case — the cause of Susan's death. Second, although Dr. Wolf may not have changed her testimony nor been intimidated, she understood the intent of the events preceding her deposition to be an effort to alter her conclusion.
For the foregoing reasons, in a civil appeal, 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 reverse the district court's decision and remand for proceedings consistent with this opinion.
It is so ordered.
QUINCE and PERRY, JJ., concur.
PARIENTE, J., concurs in part and dissents in part with an opinion.
PARIENTE, J., concurring in part and dissenting in part.
I join the majority in concluding that a new trial is warranted based on the erroneous and harmful exclusion of testimony regarding the overdiagnosis of amniotic fluid embolus (AFE) that the plaintiff sought to elicit during the cross-examination of the defense's expert witness. I dissent, however, from the majority's decision to adopt the same harmless error standard for civil cases as is used in criminal cases, despite the different burdens of proof and constitutional interests that are implicated in the civil and criminal contexts. I also disagree with the majority's conclusion that the trial court erred in excluding evidence related to the alleged witness tampering of the deputy medical examiner.
My primary disagreement is with the majority's decision to adopt the criminal "no reasonable possibility" test for harmless error, which is grounded in the "beyond a reasonable doubt" standard of proof that applies in criminal trials. Because a different standard applies in civil cases, and because the attributes of the two types of cases are very different, I would adopt the "more likely than not" standard set forth by the Fourth District Court of Appeal and require the beneficiary of the error in a civil case to show that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.
I begin by discussing my view concerning the appropriate standard for harmless error in civil cases and then proceed to address each of the specific instances of alleged error in turn.
While I disagree with the ultimate standard adopted by the majority, I do agree with both the majority and the Fourth District in rejecting the outcome-determinative "but for" test for determining harmless error in civil cases in favor of an "effect on the trier-of-fact" approach, as
Gormley v. GTE Prods. Corp., 587 So.2d 455, 459 (Fla.1991); see also Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla. 2001) ("The burden of proving that the admission of the collateral source evidence was harmless rests on [the beneficiary of the collateral source evidence].").
However, because of the differing burdens of proof and constitutional rights at stake, I disagree with the majority's adoption of the identical standard for harmless error in civil cases as applies in criminal cases. By adopting the test for harmless error that applies to criminal cases without even referencing the different burdens and interests that apply in the civil context, the majority favors form over substance and offers no compelling explanation as to why the "no reasonable possibility" language from DiGuilio, which is rooted in the "beyond a reasonable doubt" burden of proof, should be used in civil cases. As stated by the Fourth District, the harmless error test for civil cases "should acknowledge the particular attributes of those cases." Special, 79 So.3d at 770.
Indeed, the most obvious attribute of civil cases that distinguishes them from their criminal counterparts is the "preponderance of the evidence" burden of proof that applies instead of the "beyond a reasonable doubt" standard that is the hallmark of criminal prosecutions. Although the harmless error test articulated by this Court in DiGuilio is based on the "beyond a reasonable doubt" standard that applies in the criminal context, DiGuilio, 491 So.2d at 1138, the majority omits any discussion of the completely different "preponderance of the evidence" standard that applies in the civil context — despite adopting the identical harmless error test.
Specifically, instead of acknowledging this important difference, the majority simply transplants the "no reasonable possibility" language from the criminal harmless error test into the civil test it adopts, while eliminating the "beyond a reasonable doubt" portion of the test articulated in DiGuilio. Although unstated, the majority would presumably substitute the phrase "more likely than not" in place of "beyond a reasonable doubt," and thus the test would require the beneficiary of the error to prove "more likely than not" that the error did not contribute to the verdict, or alternatively stated, that there is "no reasonable possibility" that the error contributed to the verdict. Because this test does not account for the different burdens of proof, it simply makes no sense.
In my view, the only way to properly assess how an error would have affected the jury is to apply an appellate standard that accounts for the burden of proof the jury was required to apply at trial. Such an approach does not "commingle[] and confuse[]" trial level burdens with appellate standards. Specially concurring in part & dissenting in part op. at 1273-74 (Lewis, J.). Instead, it appropriately acknowledges the proper role of an appellate court performing a harmless error test and recognizes that assessing the impact of an error on the jury — as the majority itself concludes to be the correct approach — requires the test applied by the appellate court to account for the burden applied by the jury.
Section 59.041, Florida Statutes (2003), provides that a court may not set aside a judgment or grant a new trial in any case, whether civil or criminal, unless "the error complained of has resulted in a miscarriage of justice." As the majority appropriately recognizes, "[u]nder this rule, appellate courts must evaluate harmless error on a case-by-case basis" and determine what constitutes a "miscarriage of justice" based on the record and factors present in each particular case. Majority op. at 1255.
In his separate opinion, Justice Lewis suggests that the Legislature's use of the same "miscarriage of justice" language for both criminal and civil cases "specifically and unambiguously" indicates that the Legislature intended the same harmless error test to apply in both contexts. Specially concurring in part & dissenting in part op. at 1273-74 (Lewis, J.). However, it is the test this Court adopted in DiGuilio that gives meaning to the phrase "miscarriage of justice" in criminal cases — while respecting the Legislature's authority to enact harmless error statutes — and that sets forth a framework for applying the standard on a case-by-case basis. In fact, this point was recognized by the Fourth District, which explained that "the trigger for reversible error is the occurrence of a `miscarriage of justice'; how the courts have defined this term has determined the scope of the statute's application." Special, 79 So.3d at 761.
Any analysis that is specific to each case must account for the particular attributes and distinctive features of that case. In other words, while "miscarriage of justice" is the standard that the Legislature has chosen to apply to all cases, what constitutes a "miscarriage of justice" in one case is not the same as what constitutes a "miscarriage of justice" in another. It is up to the judiciary to develop a framework for
Instead of adopting the identical test for the sake of consistency between cases that arise in contexts that are completely different, I would adopt the well-reasoned opinion of the Fourth District as to the appropriate standard for harmless error in civil cases. Sitting en banc, the Fourth District cogently articulated why the proper test should require the beneficiary of the error to prove "more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict." Special, 79 So.3d at 771.
In my view, the Fourth District persuasively explained why a different standard for reversal is well-suited to civil cases:
Id. at 770. In other words, as DiGuilio makes clear, the "no reasonable possibility" language in the criminal harmless error test cannot be divorced from the "beyond a reasonable doubt" language, since the two phrases are simply alternative formulations of the same test, which is rooted in the "particular attributes" of criminal prosecutions. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ("There is little, if any, difference between our statement in [a prior case] about `whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."); see also Black's Law Dictionary 1457 (10th ed. 2009) (defining "reasonable doubt" as "the belief that there is a real possibility that a defendant is not guilty").
When the Court is required to address harmless error in criminal cases, it is always the State that has obtained a conviction against a defendant based in some measure on an erroneous legal ruling at trial. Therefore, the strictest formulation of the harmless error test, as set forth in DiGuilio, is consistent with the State's responsibility to ensure that convictions are secured without the assistance of harmful errors, which is an important public policy concern. See DiGuilio, 491 So.2d at 1138-39.
By contrast, an error in a civil case could result in potential harm to either a
As stated by the Ninth Circuit Court of Appeals regarding why that circuit applies a different harmless error standard for civil and criminal cases:
Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1458-59 (9th Cir.1983) (emphasis added) (citations omitted). The Tenth Circuit Court of Appeals has also aptly explained why "absent some countervailing policy ... the harmless error standard should mirror the standard applied at trial," since logic requires the stringency of the test for judging error on appeal to be the same as the stringency of the standard applied at trial. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1252 n. 39 (10th Cir.1988).
Although Justice Lewis in his separate opinion relies on McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.1985), for the proposition that the same standard should apply in both contexts, the Third Circuit Court of Appeals has adopted "a moderately stringent, though not unreasonably
The Third Circuit has stated, as a basis for adopting the same test for harmless error in civil and criminal cases, that "broad institutional concerns militate against increasing the number of errors deemed harmless." McQueeney, 779 F.2d at 927. This Court, however, already follows that policy in applying the most stringent of possible harmless error standards for criminal cases, where the defendant's constitutional liberty interest is always at stake. Unlike in Florida, the Third Circuit's test for harmless error in the criminal context is not based on the "beyond a reasonable doubt" standard. To apply a lower standard for civil cases than an already less stringent standard that applies to criminal cases would lead to the kind of potential for an increased number of errors that is simply not an issue in Florida.
For all these reasons, I would adopt the Fourth District's cogent articulation of the proper test for harmless error in civil cases. Under this approach,
Special, 79 So.3d at 771.
Having set forth what I believe to be the appropriate test for harmless error in civil cases, I now address the two specific instances of alleged error in this case. In short, I agree with the majority's conclusion as to the first, but disagree as to the second.
Although I disagree with this Court's adoption of the same test for harmless error in civil cases as the Court applies in criminal cases, I agree with the majority that the error in restricting the cross-examination of the defense expert regarding the overdiagnosis of AFE was not harmless error, regardless of which standard is applied. Because the focus of the entire case revolved around whether Susan Special's death was caused by medical malpractice or AFE, the limitation on the cross-examination and the acknowledgment by the defense's own expert concerning the possibility of overdiagnosis of AFE cannot be said to amount to harmless error. That is, Baux and West Boca have not demonstrated that it is more likely than not that the exclusion of this testimony did not contribute to the jury's verdict finding the defendants not liable. This testimony directly called into question the credibility of the AFE diagnosis in this
Further, I agree that the ability of trial counsel to argue about overdiagnosis in closing is not a substitute for having the defense's own expert acknowledge the overdiagnosis of AFE, where the competing expert opinions were the focal point of this medical malpractice case. See Linn v. Fossum, 946 So.2d 1032, 1041 (Fla.2006) ("We conclude that the trial court erred in allowing Dr. Weaver-Osterholtz to testify that she consulted with colleagues and that this error was not harmless because the competing expert opinions on the proper standard of care were the focal point of this medical malpractice trial."); see also Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003) ("Where, as here, the competing expert opinions, on both sides, were the focal point of the trial, we cannot deem the error in the introduction of the ACAS report to be harmless.").
Accordingly, because the trial court's error in restricting the cross-examination of the defense expert was not harmless, a new trial is warranted.
Lastly, based on the record before the trial court, I disagree with the majority that there was any error in disallowing testimony of the deputy medical examiner, Dr. Barbara Wolf, on what the plaintiff alleged to be "witness tampering." I deplore, as does this Court, any threats or attempts at intimidation attributable to the adverse party. The key, however, is that the proper predicate must be laid to show that it was the adverse party or its agent that made the threats or attempted to intimidate a witness. To allow a party to argue witness intimidation where there is insufficient evidence demonstrating that this is what occurred is incredibly prejudicial to the party being accused of the improper conduct. See Penalver v. State, 926 So.2d 1118, 1129-30 (Fla.2006). The majority, in fact, recognizes this critical point in correctly concluding that there was an insufficient factual basis to attribute the Department of Health complaint against Dr. Wolf to the defendants and that this evidence was therefore properly excluded.
However, as to the pre-deposition comments allegedly made to Dr. Wolf by her attorney, neither Dr. Wolf's attorney nor Baux's defense attorney, the original declarant, testified as to what was said. Therefore, as the trial court properly recognized, the double hearsay issue with these alleged statements presents a threshold problem for their admission.
Moreover, simply being provided with photographs of slides taken by another expert, Dr. Factor, does not, in itself, amount to witness intimidation. There would have been nothing wrong with the plaintiff asking Dr. Wolf at trial if her attorney showed her photographs of slides taken by Dr. Factor before her deposition and whether that changed her opinion regarding her conclusion about the cause of death. That is a far cry, though, from allowing the plaintiff to argue to the jury that agents of the defense attempted to intimidate the witness and that those actions are evidence of their culpability.
It may be that in a new trial, a more specific nexus can be established with the defendants' alleged actions to pressure Dr. Wolf to change her testimony, including testimony from either of the two attorneys who engaged in the alleged conversation. The current record, however, is devoid of anything but hearsay and attenuated connections, with speculation having to fill the
In sum, I concur in the majority's conclusion that a new trial is warranted based on the trial court's error, which was not harmless, in excluding cross-examination testimony from the defense expert concerning the overdiagnosis of AFE. I dissent, however, from the majority's adoption of the identical standard for harmless error in civil cases as applies in the criminal context. This decision, in my view, fails to account for the important differences that exist between civil and criminal trials.
LEWIS, J., specially concurs in part and dissents in part with an opinion.
LEWIS, J., specially concurring in part and dissenting in part.
I concur with the well-reasoned and intellectually direct majority opinion as it accepts and adopts the standard for review that the beneficiary of the error must establish that there is no reasonable possibility that the error contributed to the verdict to uphold application of harmless error. I also concur with the common sense and logical majority opinion and conclude that the failure of the trial court to permit the jury to hear testimony from Dr. Dildy concerning the extremely high rate of amniotic fluid embolus (AFE) diagnoses at West Boca constitutes harmful error that merits a new trial. I write separately only because I believe that additional justifications not mentioned by the majority explain why the harmless error test adopted today is appropriate in all civil appeals. Further, contrary to the majority in one limited area, I would permit the full exploration and further development of both allegations of witness intimidation in connection with the new trial proceedings.
I agree with the majority's conclusion that the "no reasonable possibility" harmless error standard preserves judicial resources, protects the integrity of the judicial process, and strikes the appropriate balance between parties. Equity and logic demand that the burden of proving an error to be harmless must be placed on the party who improperly introduced the evidence. Placing the burden on the party that introduced the error serves not only to penalize the offending party, but also discourages future efforts to introduce error into proceedings. If we were to place the burden of proof on the party against whom the evidence is used, we would simply encourage the introduction of improper evidence. Gormley v. GTE Prod. Corp., 587 So.2d 455, 459 (Fla.1991); see also Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla.2001) ("[W]hen a trial lawyer leads a judge into an obvious error ... cries of harmless error on appeal are likely to fall on deaf ears.") (quoting Mattek v. White, 695 So.2d 942, 944 (Fla. 4th DCA 1997)).
However, I also believe that DiGuilio's pervasiveness in harmless error assessments underscores why this Court should not depart from it by adopting a different standard for civil proceedings. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Developing a different standard would only foster inconsistency and confusion in Florida law. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 927 (3d Cir.1985) (discussing the varying standards of review in civil cases, and why creating a different test for harmless error in the civil versus criminal context would only add unnecessary confusion and complication for the courts). Furthermore, by
In DiGuilio, we addressed the relevant statutory authority, and explained why section 924.33, Florida Statutes (1981), applied as opposed to section 59.041. See 491 So.2d at 1133-34. Section 924.33 provides:
This section is part of chapter 924, which is titled "Criminal Appeals and Collateral Review." § 924.33, Fla. Stat. (2003). The DiGuilio Court stated that section 924.33 applied because that statute: (1) applies to all judgments regardless of the type of error involved; and (2) explicitly provides that there shall be no presumption that errors are reversible unless it can be shown that they are harmful. See 491 So.2d at 1133-34. Although section 59.041 did not apply in DiGuilio, the differences between this section and section 924.33 are not such as to render DiGuilio's analysis inapposite. Section 59.041 provides:
§ 59.041, Fla. Stat. (2003) (emphasis supplied). The plain language of this section demonstrates that the Legislature has specifically and unambiguously elected not to apply a different harmless error standard in criminal and civil cases.
Justice Pariente, in her concurring in part and dissenting in part opinion, criticizes the majority for "favoring form over substance" and adopting a harmless error standard in civil cases that is inconsistent with the clear legislative directive articulated in section 59.041. She claims that the majority has ignored critical factors, such as the differing burdens of proof and other "particular attributes" that distinguish civil from criminal cases, and contends that the DiGuilio standard is inapplicable in civil cases. Justice Pariente simply comingles and confuses trial level burdens of proof and trial level "particular attributes" with appellate standards of legal error. The level of a factual burden of proof during trial has nothing to do with the standards for appellate legal error. In criticizing the majority's analysis, Justice
Here, the Legislature has established through section 59.041 the public policy that appellate courts shall not reverse trial court judgments "in any cause, civil or criminal," unless the error complained of has resulted in a miscarriage of justice. It certainly cannot be disputed that the Legislature was unaware when it made this policy decision that the trial level burden of proof differs in civil and criminal cases, or that other "particular attributes" differentiate the two types of cases. However, because Justice Pariente considers the Legislature's policy determinations to be inconsistent with her view, she basically ignores them altogether. Justice Pariente relies upon the "particular attributes" approach to conclude that the "more likely than not" standard developed by the Fourth District is appropriate in all civil cases. This approach, however, not only disregards our holding in DiGuilio that recognized the Legislature retains broad authority to regulate the application of harmless error statutes, but also completely ignores the plain language of section 59.041. In so doing, Justice Pariente has essentially concluded that section 59.041 is irrelevant and should not impact the determination of the appellate standard for legal error that should apply in civil cases. While Justice Pariente and other lower court judges may not agree with the statutes, it is inappropriate for them to suggest that their personal views of the applicable harmless error standard should trump the standard contained in the statutory structure. Justice Pariente advances a dual standard for civil and criminal cases contrary to the single standard established in the Florida Statutes.
I disagree only with the majority's determination that the trial court did not err when it precluded Special from further exploring and presenting evidence that strongly suggested that Baux and West Boca attempted to intimidate the key fact witness, medical examiner Dr. Wolf, regarding the Department of Health (DOH) complaint. The decision to preclude Dr. Wolf's testimony on this important subject amounted to an abuse of discretion and was not harmless error. With a remand for a new trial, I would permit further exploration and development of material facts on this issue.
A trial court's decision to admit evidence is reviewed under the abuse of discretion standard. See Braddy v. State, 111 So.3d 810, 858 (Fla.2012), cert. denied, ___ U.S. ___, 134 S.Ct. 275, 187 L.Ed.2d 199 (2013); Simmons v. State, 934 So.2d 1100, 1116 (Fla.2006) ("A trial court has wide discretion concerning the admissibility of evidence and the range of subjects about which an expert can testify."). A court's discretion, however, is circumscribed by the rules of evidence, see Johnston v. State, 863 So.2d 271, 278 (Fla.2003), and a ruling on the admissibility of evidence will constitute an abuse of discretion if it is based "on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Johnson v. State, 969 So.2d 938, 949 (Fla.2007).
Here, the precluded testimony concerned whether there had been an extra-judicial attempt to intimidate and discredit Dr. Wolf, the medical examiner, because
Florida courts permit evidence of threats or witness intimidation if the threats are attributable to the opposing party. See Koon v. State, 513 So.2d 1253, 1256 (Fla.1987) ("It has been held that evidence of threats made against witnesses is inadmissible to prove guilt unless the threats are shown to be attributable to the defendant." (citing Duke v. State, 106 Fla. 205, 142 So. 886 (1932); Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980); Coleman v. State, 335 So.2d 364 (Fla. 4th DCA 1976))); see also State v. Price, 491 So.2d 536, 536-37 (Fla.1986) ("A third person's attempt to influence a witness is inadmissible on the issue of the defendant's guilt unless the defendant has authorized the third party's action."); Manuel v. State, 524 So.2d 734, 735 (Fla. 1st DCA 1988) (noting that testimony concerning witness intimidation is admissible, "provided the attempt was with the authority, consent, or knowledge of the defendant").
In Jost v. Ahmad, the Second District Court of Appeal addressed an allegation of witness tampering in a medical malpractice case. 730 So.2d 708, 710 (Fla. 2d DCA 1999). The plaintiff's treating physician testified that the hospital's insurance carrier contacted the physician's risk management officer, and the carrier attempted to
Here, during trial, Special asserted that he should be permitted to present evidence that individuals, on behalf of Baux and West Boca, attempted to intimidate Dr. Wolf into changing her expert opinion that AFE was not the cause of Susan's death. According to Dr. Wolf's attorney Bill Pincus, Baux's attorney had told him that "the Defendants had hired a `nationally-renowned' expert in the field of amniotic fluid embolism (`AFE') who had found `pervasive evidence' of AFE in the tissue samples taken from the Decedent" and "suggested that Dr. Wolf may not want to `embarrass herself' by seeking to defend her earlier conclusions (of no evidence of AFE)...." Prior to this conversation, and it is arguable although not fully developed "at the request of a defense attorney," a complaint had even been filed with DOH against Dr. Wolf, which jeopardized her medical license. Dr. Wolf learned of this complaint immediately prior to her deposition with defense counsel, during which she had to discuss and defend her conclusion that AFE was not the cause of Susan's death. Full evidence concerning this attempted intimidation should be disclosed and explored.
The trial court addressed the alleged intimidation as two separate issues: (1) whether sufficient evidence was presented to introduce into evidence the fact that a disciplinary proceeding had been filed against Dr. Wolf by DOH; and (2) whether individuals had attempted to intimidate Dr. Wolf prior to her deposition. The trial court only allowed Special to proffer Dr. Wolf's testimony on these issues. Although the trial court found the testimony addressing witness tampering with regard to activities occurring prior to Dr. Wolf's deposition to be relevant, it ruled that testimony on this issue was inadmissible because it constituted double hearsay. The trial court also precluded testimony "with respect to the [DOH] investigation... [because] I don't believe there's a sufficient evidentiary nexus to allow us to go there [and address witness intimidation] at this point. [Dr. Wolf] doesn't know who filed [the complaint that led to the disciplinary proceeding], and we can surmise who may or may not have, but I don't think we have enough to go there."
The trial court's concern regarding the evidentiary nexus between Dr. Wolf's testimony and the apparent witness intimidation is misplaced. It is clear that a third party with the "authority, consent, or knowledge" of Baux, if not West Boca as well, attempted to influence Dr. Wolf and alter her testimony. See Manuel, 524 So.2d at 735. No other persons or party would have been privy to, and interested in, Dr. Wolf's conclusions regarding the cause of Susan's death. Who else would
With regard to the dictates of Jost — that the challenged testimony must be relevant and the communication reasonably understood by the targeted witness as an attempt to intimidate — Special appears to have satisfied this standard. First, in its order, the trial court found this testimony to be relevant. Additionally, this testimony concerned the key issue in this case — the cause of Susan's death. Second, although Dr. Wolf may have neither changed her testimony nor been intimidated, she understood the intent of the events preceding her deposition to be an effort to alter her conclusion. Accordingly, the trial court should have stayed the proceedings and addressed the problem and allegations of intimidation at the time they were brought to the court's attention. Judicial proceedings must be free from improper efforts to intimidate witnesses and, when that issue arises, courts must be prepared to respond and react lest we allow justice to be undermined. The trial court's failure to do so, and thereby ensure that the trial was not tainted by extraneous influences, was not a harmless error. The trial court's failure to admit testimony on this issue amounted to an abuse of discretion.
To the extent that Baux and West Boca allege that this evidence of intimidation is too attenuated to be admitted, I note that evidence of this nature "need not lead inescapably towards a single conclusion to be relevant, it need only make certain facts more probable than not." See McQueeney, 779 F.2d at 921. Here, Special provided sufficient support for the trial court to rule the testimony admissible and deserving of the jury's consideration. Consequently, this testimony should have been admitted as substantive evidence of Baux and West Boca's lack of faith in their defense that AFE caused Susan's death. Most certainly, if further evidence is available, it must be considered in connection with a new trial.
Moreover, if in fact these activities were concerted efforts to intimidate Dr. Wolf, it is appropriate to conclude that they derived from parties who acted with the "authority, consent, or knowledge" of Baux, if not West Boca as well. See Manuel, 524 So.2d at 735. Neither Baux nor West Boca has provided this Court with a reason to conclude that some other person or party would have had a motive to harass Dr. Wolf as occurred here. Additionally, because the intimidating parties were acting as agents of Baux, the trial court's hearsay concerns are eliminated. Compare Jost, 730 So.2d at 710 (permitting admission of communications to the targeted doctor from the defendant's insurance carrier, which is "akin to a communication from [the defendant] ... [and not akin to] a communications from a third party with no direct interest in the outcome of the case"), with Nagel v. State, 774 So.2d 835, 838 (Fla. 4th DCA 2000) (ruling that a police officer's testimony was inadmissible because the state did not present evidence that the contested telephone call "was made with appellant's authority, consent, or knowledge").
Based on the relevance of the testimony to both the very core issue of the litigation (the AFE diagnosis), and demonstrated efforts
In conclusion, I would remand this case for a new trial because without the evidence excluded here, the fairness and integrity of this litigation has been compromised.
POLSTON, J., dissents with an opinion in which CANADY, J., concurs.
POLSTON, J., dissenting.
I agree with Justice Pariente's dissent from the majority's decision to adopt the same harmless error standard for both the criminal and civil contexts even though criminal and civil cases are subject to different burdens of proof. The Fourth District Court of Appeal properly 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." Special v. Baux, M.D., et al., 79 So.3d 755, 771 (Fla. 4th DCA 2011). I also agree with Justice Pariente's conclusion that the trial court did not err in excluding the pre-deposition comments allegedly made to Dr. Wolf as inadmissible hearsay. However, unlike Justice Pariente and the majority, I do not believe that a new trial is warranted in this case because the improper restriction of Dr. Dildy's cross-examination testimony was harmless.
Reviewing the entire record, it is more likely than not that the trial court's restriction of Dr. Dildy's cross-examination did not contribute to the judgment. The proffered cross-examination is cumulative of other evidence actually presented to the jury regarding the possibility of overdiagnosis of AFE at West Boca because, during Dr. Adelman's testimony, "Special was able to elicit national statistics showing incidence of AFE diagnosis at West Boca was about 15 times the rate elsewhere." Id. at 757. Moreover and importantly, the proffered cross-examination would have added very little (if any) support to Special's position, especially considering that Dr. Dildy's proffered testimony strongly emphasized that a possible statistical anomaly in all AFE cases at West Boca would not matter here because this case in particular was a case of AFE. As the Fourth District explained,
Id. at 772 (emphasis added).
Accordingly, because I disagree with the majority's adoption and application of the criminal harmless error standard in this civil case, I respectfully dissent.
CANADY, J., concurs.
(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected ... [and the issue is preserved].
