Published in Forum 8, Eighth Judicial Circuit Bar Association, Inc., Vol. 71, No. 5, September of 2012
While affirming the trial court’s judgment in favor of the defendants/appellees and finding that the trial court’s decision to limit the cross-examination of one of the defendants’ expert witnesses was harmless, the Fourth District Court of Appeal, en banc, reconsidered other decisions of the court describing the harmless error test in civil cases and certified a question of great public importance to the Florida Supreme Court. The Fourth District Court of Appeal held that its history of using an outcome determinative, “but-for” test for harmless error was contrary to the Florida Supreme Court’s interpretation of the harmless error statute. Accordingly, the court receded from its history and adopted the following standard for harmless error in civil cases: To 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.
The harmless error rule can be found at Section 59.041, Florida Statutes, and provides that no judgment, civil or criminal, shall be set aside or reversed, or a new trial granted, unless, after a review of the entire record, the alleged error has resulted in a miscarriage of justice. The last sentence of the statute provides that “[t]his section shall be liberally construed.” While the purpose of the harmless error statute is to enhance finality by limiting the granting of new trials, the statute allows for discretion and flexibility in its interpretation.
After passage of the harmless error statute, the Florida Supreme Court used two tests to define a “miscarriage of justice”: (1) a “but-for”, “correct result” test that is centered on the outcome and (2) the more forgiving “effect on the fact-finder” test that is centered on the process. The first test narrowed the class of cases that could be reversed by asking “would the result have been the same without the error?” or “but for the error, would the result have been different?” The second test broadened the class of cases that could be reversed and asked “whether the error influenced the trier of fact and contributed to the judgment, not just whether it changed the result.” The purpose of utilizing the first test was to conserve judicial resources and was commonly applied to prevent reversal whenever errors would have not altered the outcome. However, in other cases, wherein the second test was utilized, which focused less on the correctness of the outcome and more on whether the decision-making process was compromised, the court would examine the error in light of the entire record and whether the error had an adverse effect upon the jury’s verdict.
In 1986, the Florida Supreme Court, in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), firmly established the second test, the “effect on the fact-finder”, as the harmless error test for criminal cases. The Florida Supreme Court announced that even if, in the reviewing judge’s opinion, the verdict would have been the same without the error, if it is reasonably possible that the error contributed to the verdict, then the verdict must be set aside. The error and its probable effects must be evaluated in light of all the evidence. The purpose is not to retry the case without the error but to reconstruct the original trial to determine what role, if any, the error played in the judgment. Because the focus is on the effect of the error on the trier-of-fact, the existence of abundant evidence in support of a verdict will not prevent reversal when the appellate court, after reviewing the entire record, is unable to say that there is “no reasonable probability that the error affected the verdict.” Due to the elevated burden of proof in criminal cases, the burden to show that the error was harmless is with the state.
While the Florida Supreme Court has not explicitly adopted a harmless error standard in civil cases after DiGuilio, a couple cases utilized an “effect on the fact finder” test similar to the one applied in DiGuilio. In those cases, the court expressly placed the burden on the beneficiary of the error to demonstrate on appeal that the error was harmless and utilized an effect on the verdict analysis to determine whether the harmless error occurred. Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment.
Absent specific guidance from the Florida Supreme Court, the district courts of appeal have drifted into different directions in applying Section 59.041 harmless error test to civil cases. Primarily variations of the outcome-oriented, “but for” analysis, these divergent tests can be classified into three (3) categories. The most stringent test, primarily from the Fourth District Court of Appeal, asks whether the result would have been different but for the error. Almost every error is characterized as harmless, encouraging evidentiary gambles on questionable evidence in the trial court and placing a premium on winning at all costs because only the most egregious evidentiary errors will result in reversal. Another group of cases, primarily from the first and third districts, lowers the bar and asks whether the result may have been different had the error not occurred. The last group, primarily from the second district, asks whether it is reasonably probable that the appellant would have obtained a more favorable verdict without the error.
In receding from its past line of cases, the Fourth District Court of Appeal found that because Section 59.041, Florida Statute, applies to both criminal and civil cases, the same “effect on the fact finder” analysis set forth in DiGuilio should be used in civil cases with an adjustment for a lower burden of proof.  The court reasoned that the lower burden in civil cases is consistent with the liberal construction of the statue mandated by the legislature and, further, it effectuates the statutory goal of enhancing finality in a way that recognizes that different stakes are involved in criminal and civil cases. In general, society tolerates more mistakes in civil cases than in criminal cases, supporting the decision that, in civil cases, the appellee demonstrate that, more likely than not, the error had no such harmful effect. Accordingly, the Fourth District Court of Appeal receded from its history of applying a strict, outcome determinative “but-for” test for harmless error and certified the following question to the Florida Supreme Court as being 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?”
The Fourth District Court of Appeal’s decision marks a turn in the court’s precedent and opens the door for the Florida Supreme Court to clarify the harmless error analysis for civil cases and establish uniformity for this analysis among the various district courts of appeal. For now, it is important to recognize how the harmless error rule is analyzed by the various courts and the different burden of proof standard for criminal and civil cases. Stay tuned!
 Frank Special v. Ivo Baux, M.D., et al, 2011 WL 5554531 (Fla. 4th DCA 11/16/11).
 Id. at 5.
 Id. at 6-7.
 DiGuilio, 491 So. 2d at 1135.
 Id.; Special, 2011 WL 5554531, at page 8.
 DiGuilio, 491 So. 2d at 1139; Special, 2011 WL 5554531, at page 8.
 Special, 2011 WL 5554531, at pages 8 & 12.
 Id. 9-11, citing, Gormley v. GTE Products Corp., 587 So. 2d 455 (Fla. 1991); Sheffield v. Superior Insurance Co., 800 So. 2d 197 (Fla. 2000); Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006).
 Id. at 13.
 Id. at 10.
 Id. at 10-11.
 Id., fn 19.
 Id. at 11.
 Id., fn 20.
 Id., fn 21. This test differs from the DiGuilio test in two ways: (a) requires a “reasonable probability” rather than a mere “reasonable possibility” and (b) it focuses on the possibility of a different outcome on retrial rather than the probability that the error contributed to the outcome in the actual trial.
 Id. at 13.
 Id. at 14.