The Special Harmless Error Standard: How Might It Affect Appellate Mediation?

Florida courtroom

The Florida Supreme Court’s announcement in Special v. West Boca Medical Center, 160 So.3d 1251 ( Fla. 2014), of a new standard for harmless error in Florida civil cases will have a substantial impact on how appellate cases are decided in the Florida Courts. This article looks at the impacts of the standard on mediation of appellate cases, and explores ways to utilize the standard to reach a settlement in mediation.

The Special Standard

In Special, a medical negligence action was brought against the anesthesiologist and hospital who attended Mrs. Special as she underwent a cesarean section. Five hours after her son was delivered, Mrs. Special died. Her husband sued the hospital and doctor for negligence. The defense contended that Mrs. Special was the victim of amniotic fluid embolus (AFE), an allergic reaction that results from the mixing of the mother’s blood and the amniotic fluid which can have potentially fatal consequences, and not anything caused by the defendants.  At trial, Special’s counsel made a proffer to admit evidence via cross examination of the defense expert to show that the condition of AFE was overdiagnosed at the hospital and exceeded national norms for frequency of occurrence.   That proffer was denied by the trial judge. The trial court also refused to permit plaintiff to admit evidence concerning alleged witness tampering in connection with the chief deputy medical examiner involved in the case and ultimately, the case resulted in a defense verdict.

On appeal, the Fourth District Court of Appeal addressed the excluded proffer of the defense witness’ testimony on the frequency of AFE diagnoses, ruling that the exclusion was an abuse of discretion. Special v. Baux, 79 So. 3d 755, 760 (Fla. 4th DCA 2011 en banc). Stating that the crux of the matter was whether the improper exclusion was harmless error, the Fourth DCA applied the following test: to avoid a new trial, the beneficiary of the error must show on appeal it is more likely than not that the error did not influence the trier of fact and thus, contribute to the verdict. Id. at 771. Utilizing the “more likely than not” test, the Fourth DCA concluded that the evidentiary errors complained of on appeal were not a factor in the verdict, and affirmed the defense verdict from the underlying trial. Id. at 772. En banc, after a comprehensive review of the myriad types of “harmless error” analyses employed by the District Courts of Appeal throughout the state in civil and criminal matters, the Fourth District Court of Appeal certified this question to the Florida Supreme Court:

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?


The Supreme Court of Florida took up the certified question. The Supreme Court disagreed with the 4th DCA as to the effect of the evidentiary errors in the medical negligence trial and announced the current standard of review for harmless error:

[I]n a civil appeal, the test for harmless error requires the beneficiary of the error to prove 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.

160 So. 3d at 1257.

Appellate Decisions After Special

Has the new standard changed the outcome of appellate review? At least one reported case that has arisen since the invocation of the Special standard answers this question affirmatively. In Hurtado v. DeSouza, 166 So. 3d 831 (Fla.4th DCA 2015), on a Motion for Rehearing, the Fourth DCA reversed its initial decision affirming plaintiff’s verdict. Instead, using the newly-decided standard from Special, the Appellate Court concluded that plaintiff had failed to prove the error claimed by the defense did not contribute to the verdict in plaintiff’s favor.

In Hurtado, the jury awarded DeSouza damages in excess of $1 million in a simple auto negligence case involving a minor rear-end collision. Just prior to the trial in that case, the defense admitted liability, leaving the issues of causation and damages for the jury to determine.  As trial commenced, during voir dire and in opening, plaintiff, over defense objection, alluded to plaintiff’s mental anguish resulting from the defendant’s delay in admitting liability in the litigation, as well as mental anguish over the defendant’s failure to check on him immediately following the accident or apologize at the scene of the accident. As testimony proceeded, the plaintiff testified directly to the mental anguish he endured arising from the defendant’s failure to concede liability until the eve of trial, as well as defendant’s failure to apologize and defendant’s desire to leave the scene of the accident. Defense counsel continued to object, sought a curative instruction and moved for a mistrial. Of these, the court permitted a continuing objection to be asserted. The following day, the trial court re-visited the issue of mental anguish and directed a verdict in defendant’s favor, as well as providing a curative instruction to the jury that they were not to consider any evidence of mental anguish in assessing damages in this case. Without discussing the extent of the medical specials evidence that was adduced at trial, it seems apparent from the 4th DCA’s discussion of the verdict as “unwarranted” that the value did not come near the million dollar plus verdict awarded by the jury.

Initially, the Court of Appeals reviewed the defense’s asserted error in connection with the mental anguish testimony and counsel comments and found them harmless.   However, following the decision in Special v. West Boca Medical Center, the appellate court determined that plaintiff, as the beneficiary of the error, had to demonstrate that the error did not contribute to the jury’s award. Unable to make that showing, plaintiff’s verdict was reversed and the case remanded.

Similarly, in Philip Morris USA, Inc. v. Green, No. 5D13-3758 (Fla. 5th DCA July 31, 2015), the Appellee, who had substantially benefitted in the verdict from the alleged error brought on appeal, failed to meet his burden under the Special standard and was sent back to trial court with a partial reversal. In Green, a multi-decades smoker with fatal COPD sued Philip Morris and Liggett Group, another cigarette manufacturer. The jury apportioned liability among the plaintiff and the respective defendants. The trial court did not enter damages in accordance with the liability apportionment but instead entered them jointly and severally against the two defendants. The defendants, who had timely and repeatedly sought the damages apportionment in accord with the liability assessment made by the jury over the opposition of the smoker’s estate, appealed the decision. Counsel for the smoker had discussed apportionment of liability with the jury in the underlying case in closing arguments. The Court of Appeals found that his willingness to accept apportionment in connection with liability but not with damages “misleading, unfair and unacceptable” and that so doing “[flew] in the face of the burden to prove harmless error.” Id. at 7.

Significance for Appellate Mediations

The change in emphasis that the Special standard imposes, moving from an outcome-oriented approach to one that focuses on the process undertaken by the fact-finder, could easily result in more cases on appeal being subject to reversible error.   The Supreme Court’s conclusion that error that contributes to the fact-finder’s decision warrants reversal should cause participants in the appellate process to pause and reflect before carrying on with an appeal. In turn, that careful reflection provides an opening for mediation to be more effective.

The District Courts of Appeal’s approaches to harmless error before Special were focused on “outcomes” and whether, “but for” the error, the result would have been, or in some DCA’s, may have been, different. Finality and its underlying policy of not forcing the litigating parties to undergo the trial process and its attendant resource expenditures again when the same or substantially similar result was a possibility was a compelling reason for the development of the outcome-oriented approach. Outcome-oriented assessments tend to result in fewer verdicts being changed as a result of appeals. In turn, parties in appellate mediations where harmless error was the driving factor for the appeal were not motivated to settle. Contrast the post-Special environment, where the potential has increased that a verdict will be overturned and the parties sent back for a “do-over” in trial court. The party with the benefit of the error can no longer rest assured that “harmless error” translates to affirmance. Instead, that party has to demonstrate that the “harmless error” was outcome-neutral for the fact-finder, and a far more compelling argument now exists for resolving these post-verdict cases.

Another significant effect of the Special standard for appellate mediation may be on the parties’ assessment of who should attend the mediation. Litigated cases tend to fall into two categories – those where appellate counsel has involvement before the verdict and those where appellate counsel’s involvement occurs post-verdict. Where trial counsel and appellate counsel have been integrated before verdict (e.g., appellate counsel provides evidentiary briefing, drafts jury instructions, or attends trial to preserve appealable issues) and appellate counsel handles the appellate mediation, much of the time at the mediation might be spent on the standard of review the case presents and the possible outcomes with the District Court of Appeal in question. Where appellate counsel does not get consulted on a case until after verdict, it is usually not cost-effective for appellate counsel to get fully up to speed on what happened at trial in order to appear at the appellate mediation. In those instances, trial counsel appears. While trial counsel’s knowledge of the trial of the matter is detailed and minute, the fact that trial counsel have just been through war, with one side victorious and one vanquished, can get in the way of the parties’ ability to move to a mediated settlement post- verdict.

The Special standard could have an impact on this dynamic. Who better than trial counsel to be able to argue convincingly at mediation about the ways in which the harmless error affected (or failed to affect) the fact-finder and contributed (or failed to contribute) to the verdict? Whether this factor will outweigh the challenge presented by the emotions of trial counsel to resolving cases at the appellate level remains to be seen in the unique circumstances each case presents.

Understanding the changes in the appellate landscape in the wake of the Special decision is crucial for conducting appellate mediations. This article attempts to demonstrate how the Supreme Court’s determination regarding harmless error could affect parties’ positions on appellate mediations and may lead to a greater willingness to entertain settlements in that process.

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Christina Magee

Christina Magee, Esq., Florida Supreme Court Certified Circuit Civil, County and Appellate Mediator has more than twenty-five years of experience representing injured parties, corporate and individual defendants, and insurance companies.

About Me

Christina Magee, Esq., Florida Supreme Court Certified Circuit Civil, County and Appellate Mediator has more than twenty-five years of experience representing injured parties, corporate and individual defendants, and insurance companies.

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