Harmless Error in Civil Appeals
Last year, in Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014), the Florida Supreme Court quietly effected a sea change in the law of civil appeals. taking the unforgiving standard for harmless error in criminal appeals and applying that standard to civil appeals, the Florida Supreme Court has made it easier for appellants in civil cases to get a new trial. Moreover, Special represents a new milestone in the century-long evolution of the standard for harmless error in civil appeals, from an outcome-oriented approach that favors finality to a process-oriented approach that emphasizes fairness. This article provides the context for the Florida Supreme Court’s decision in Special and explains why that decision will have far-reaching consequences for civil appeals.
Tragic Circumstances
Susan Special, pregnant at 38, delivered by cesarean five weeks early. Dr. Ivo Baux, an anesthesiologist at West Boca Medical Center, administered spinal anesthesia before and attended during and after delivery. Just after doctors removed the placenta, Susan went into cardiopulmonary arrest. Although Dr. Baux revived her, Susan suffered another arrest in the intensive care unit and died about five hours after delivery. Frank Special, Susan’s husband, sued Dr. Baux, his related corporations, and the hospital for negligence on behalf of Susan’s estate. Special alleged that Susan’s death was caused by the defendant’s negligence in administering the anesthesia, in monitoring Susan’s system and controlling her fluids during surgery, and in responding to her cardiac arrest. The defendants argued that Susan’s death resulted from an amniotic fluid embolus (AFE), a rare complication caused by contamination of the mother’s blood with amniotic fluid.1
The trial unfolded as a “battle of the experts.” Special called Dr. Mark Adelman, a physician at West Boca, who estimated that he saw, on average, one or two cases of AFE per year. The defense called Dr. Gary Dildy, an expert on maternal-fetal medicine, who backed the hospital’s diagnosis. On cross-examination, however, Dr. Dildy answered questions about the national rate of AFE, which was much lower than what Dr. Adelman testified he saw at West Boca. When Special asked Dr. Dildy about whether AFE was being overdiagnosed at West Boca, the defense objected, arguing that evidence about other diagnoses at West Boca was irrelevant to Susan’s diagnosis. The trial court agreed and excluded that line of questioning.2
Special appealed, contending that the trial court abused its discretion by improperly excluding relevant testimony that would have undermined the hospital’s diagnosis of AFE. After a divided panel of the Fourth District Court of Appeal ruled that any error in excluding the testimony was harmless, the court reheard the case en banc to consider the proper standard for harmless error in civil appeals. In that decision, Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011), the Fourth District rejected its own previous standard3 and 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.”4 The Fourth District also certified a question regarding the proper standard for harmless error in civil appeals to the Florida Supreme Court, setting up the court’s decision in Special v. West Boca Medical Center.5
A History of Harmless Error
As the Fourth District explained in its decision, the harmless error doctrine’s roots stretch back to 19th century English common law. “According to the ‘orthodox’ English rule, an error in admitting or rejecting evidence was not a sufficient ground for a new trial unless it appeared, looking at all the evidence, that the truth had thereby not been reached.”6 If the appellate court was convinced that the trial court had reached the correct result despite the error, then there was no need to incur the expense of a new trial. One court explained that, under this rule, it was the judges’ responsibility “to hear the report of the trial, and to sustain the verdict, if we are satisfied that there is enough to warrant the finding of the jury independently of the evidence objected to.”7
In 1835, in Crease v. Barrett, (1835) 149 Eng. Rep. 1353 (Ex.), the Court of Exchequer announced a new rule. The court expressed reservations about the Orthodox Rule because it was concerned that appellate courts’ reweighing the evidence presented at trial risked usurping the role of the jury. Instead, the Court of Exchequer reasoned, appellate judges should consider the error’s effect on the fact-finder. The court explained that reversal was necessary based on the facts of the case because “[w]e cannot say, however strong our opinion may be on the propriety of the present verdict, that, if the [wrongly excluded evidence had been admitted] it would have had no effect with the jury.” 8
In a sense, the Court of Exchequer’s decision reflected a modest conception of the appellate role and a healthy respect for the prerogative of the jury. Unfortunately, whatever its virtues, “[d]uring the period 1835-73, the rule of Crease v. Barrett was transformed by the English courts into one approximating automatic reversal.”9 The so-called Exchequer Rule became synonymous with obsessive formalism and the wasteful proliferation of new trials. Finally, in 1873, Parliament abrogated the Exchequer Rule by statute, providing that an error was not grounds for a new trial unless “some substantial wrong or miscarriage has been thereby occasioned in the trial of the action.”10
American courts embraced the Exchequer Rule in the second half of the 19th century, continuing to apply the rule long after it was abandoned in England. The doctrine of automatic reversal frustrated American lawyers and was often cited as a sign of the need for procedural reforms.11 The problem was especially acute in criminal prosecutions, and some of these cases attracted considerable attention. For example, in one notorious case, the California Supreme Court reversed a conviction for burglary because the indictment charged the defendant with entering a stable with the intent to commit “larcey” instead of “larceny,” and “larcey,” whatever it was, was not a felony.12 Commentators blamed these cases on the influence of the Exchequer Rule on American courts.13
A campaign to reform appellate procedure emerged, led by Professor John Henry Wigmore and Dean Roscoe Pound, among others.14 The ABA formed a special committee to study the problem and recommend reforms.15 The movement to reform appellate procedure eventually succeeded at the federal level, culminating in a federal harmless error statute16 and rules of criminal and civil procedure.17 The U.S. Supreme Court explained that the purpose of these reforms was “to substitute judgment for automatic application of rules” and “preserve review as a check upon arbitrary action and essential unfairness in trials” while at the same time closing the procedural loopholes that let the “fairly convicted” go free.18
In Chapman v. California, 386 U.S. 18 (1967), the U.S. Supreme Court acknowledged the standard for harmless constitutional error in criminal cases — “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”19 In other words, the Court explained, for an error affecting a constitutional right to be regarded as harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”20 This high standard for harmlessness reflects the risk that anything less could potentially deprive a criminal defendant of the right to a fair trial.
Harmless Error in Florida
As in other jurisdictions, early Florida cases followed the Orthodox Rule. Around the turn of the 20th century, however, some cases began applying the more rigid Exchequer Rule.21 Following the national trend, the Florida Legislature enacted a harmless error statute in 1911.22 That statute, F.S. §59.041, substantially unchanged to this day, provides:
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.23
Like the harmless error statutes in other jurisdictions, which speak abstractly, in terms of “substantial rights” and the needs of “justice,” Florida’s harmless error statute does not supply a readily applicable standard for evaluating trial error. As Justice Roger Traynor of the California Supreme Court observed: “There is obvious need of guidelines to control appellate discretion in the evaluation of error. They are not to be found in the broad directives of the harmless-error statutes.”24 Judicial interpretation was, therefore, necessary to translate the abstract language of the harmless error statute into a practical standard for evaluating trial error.
Early judicial interpretations of Florida’s harmless error statute focused on the error’s effect on the trial’s outcome. For example, in one case, the Florida Supreme Court explained that the purpose of the harmless error statute was “to require it to be made to appear to the reviewing court that the error complained of caused, or at least contributed to causing or reasonably tended to cause, the result, and that the result was wrong — a miscarriage of justice.”25 This outcome-oriented interpretation prevailed in both criminal26 and civil cases.27
In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), however, the Florida Supreme Court shifted toward an “effect on the fact-finder” approach by adopting the Chapman standard for harmless error in criminal appeals. In DiGuilio, the court explained that the Chapman standard “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”28 This standard sets a high bar for showing harmlessness in a criminal appeal.29 The court added some further thoughts on applying the harmless error standard:
Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.30
Although DiGuilio established the standard for harmless error in criminal appeals, the standard for harmless error in civil appeals remained unsettled. As a result, before Special, Florida’s district courts experimented with at least three different standards for harmless error in civil appeals. One line of cases laid down the standard as whether, “but for the error,” the judgment would have come out differently.31 Another line of cases described the standard as whether, but for the error, the judgment “may” have come out differently.32 Finally, a third line of cases framed the standard as whether it was “reasonably probable” that the appellant would have obtained a more favorable judgment but for the error.33
While these standards require different degrees of confidence in the trial’s outcome, they all focus on the error’s effect on that outcome. But Chapman and DiGuilio require a different approach — an “effect on the fact-finder” approach. As the U.S. Supreme Court has explained, “the question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.”34 This process-oriented approach asks what role the error may have played in the fact-finder’s judgment, not what the fact-finder’s judgment would have been without the error.
One Standard or Two?
Commentators and courts have grappled with the problem whether the same standard for harmless error should apply in criminal and civil appeals. Some argue that the fundamental differences between these types of cases require different standards for evaluating error, while others maintain that applying the same standard is both more logical and more faithful to the relevant rules and statutes.
Professor Stephen Saltzburg argued forcefully against a uniform standard for harmless error in criminal and civil appeals.35 He began with the fundamental difference between criminal and civil cases. Consider that, between convicting the innocent and acquitting the guilty, we strongly prefer the latter, whereas between false findings of liability and nonliability, we are closer to indifferent. Our split attitudes about the risks of trial error in these two settings explain differences in judicial treatment between the two types of cases.36
Professor Saltzburg also argued that a uniform standard cannot meet the needs of both criminal and civil trials because a standard strict enough for criminal cases requires too much certainty in civil cases, and a standard lenient enough for civil cases requires too little certainty in criminal cases. Any compromise between the two would either unacceptably weaken the standard for criminal cases or heighten the standard for civil cases.37
In short, according to Professor Saltzburg, the different burdens of proof at trial require different standards for harmlessness on appeal. “Since a uniform appeal standard stands in direct contradiction to the separate and distinct standards used in civil as opposed to criminal proceedings at the trial court level,” Professor Saltzburg concluded, “there is no doctrinal justification for commingling the standards of review in criminal and civil cases.”38
Federal courts of appeals are split on whether to apply the same or different standards for harmless error in criminal and civil appeals. The U.S. Court of Appeals for the Ninth Circuit, in Haddad v. Lockheed California Corp., 720 F.2d 1454 (9th Cir. 1983), chose to apply a different standard to civil appeals, while the U.S. Court of Appeals for the Third Circuit, in McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985), concluded that the same standard should apply.
In Haddad, the Ninth Circuit presented two arguments for a less demanding standard for harmless error in civil appeals. Both arguments rest on the fundamental differences between criminal and civil cases, which are reflected in the different burdens of proof. First, the Ninth Circuit reasoned, courts and society as a whole tolerate a larger margin for error in civil than in criminal trials; therefore, the risk of an appellate court’s substituting its judgment for the jury’s is lower in civil cases. Second, and closely related to the first, a litigant in a civil trial is entitled to a lesser degree of certainty than the criminal defendant, and “[t]he civil litigant’s lessened entitlement to veracity continues when the litigant becomes an appellant.”39 Although the statement that a civil litigant has a lesser entitlement to the truth is troubling, the basic point is consistent with Professor Saltzburg’s critique. In short, the test for harmlessness on appeal should be logically related to the burden of proof at trial, and, therefore, the difference in burdens between criminal and civil trials require different standards for harmless error on appeal.
In McQueeney, however, the Third Circuit rejected these arguments and identified additional reasons why the same standard should apply. First, in the Third Circuit’s view, the difference between criminal and civil trials was not as great as the Haddad court supposed. “Verdicts,” after all, “are the result of the same serious deliberation by the jurors no matter what the standard of proof,” and the stakes in civil cases can be as high as in criminal cases. Moreover, recapitulating the burden of proof at trial in the standard for harmlessness on appeal may only multiply differences between different kinds of cases. “There is no logical reason,” in other words, “that the tolerance for error in the civil context must be compounded by a less stringent standard of harmless error review.”40
The Third Circuit also identified additional reasons why courts should apply the same standard in criminal and civil appeals. First, neither the relevant rule nor statute distinguishes between criminal and civil cases, suggesting that Congress intended for courts to apply the same standard. Second, linking the standard for harmlessness on appeal with the burden of proof at trial might seem intuitive, but it raises issues about whether that standard should be further adjusted in certain civil cases, such as those that require clear and convincing evidence at trial. Finally, by maintaining the same high standard for harmlessness in civil cases, the appellate court preserves an important incentive for trial courts to minimize errors.41
Special v. West Boca Medical Center
In Special, the Florida Supreme Court reversed the Fourth District Court of Appeal and held that the strict DiGuilio standard for harmless error in criminal appeals also applies in civil appeals. As a result, in a civil appeal, as in a criminal appeal, “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.”42 Chief Justice Labarga, writing for a three-justice plurality, explained that the DiGuilio standard was appropriate for civil appeals because it would “conserve judicial resources while protecting the integrity of the process.”43 The chief justice explained that adopting the same standard for criminal and civil appeals would “foster consistency in appellate courts’ analyses of harmless error.”44
Applying the DiGuilio standard to the facts of the case, the Florida Supreme Court determined that the trial court’s decision to exclude Dr. Dildy’s testimony was harmful error. “precluding the jury from considering Dr. Dildy’s testimony with regard to the over-diagnosis of AFE,” the court explained, “Special was prevented from presenting evidence to demonstrate and further support the argument that physicians at West Boca were over-diagnosing AFE.”45 Moreover, in a medical malpractice case, in which the choice between expert opinions can dictate the outcome, excluding evidence that cast doubt on one expert’s opinion would have had a significant effect on the fact-finder. “Dr. Dildy’s concession as to the inaccuracies and anomalies of Dr. Adelman’s AFE diagnoses would have reasonably had a significant effect on the jury’s deliberations and decisions, particularly with regard to the cause of Susan’s death.”46
In addition to the excluded testimony, the Florida Supreme Court considered two allegations of witness tampering. Specifically, Special alleged that the defense had twice attempted to intimidate Dr. Barbara Wolf, the medical examiner who conducted an autopsy on Susan and concluded that AFE did not cause Susan’s death. First, Special alleged that someone connected with the defense initiated a professional complaint against Dr. Wolf as retaliation for her autopsy findings. However, the majority agreed with the trial court that the alleged link between the defense and the complaint against Dr. Wolf was too speculative to substantiate the allegation of witness tampering. Second, Special alleged that, before Dr. Wolf’s deposition, defense counsel warned Dr. Wolf’s counsel that a “world-renowned” medical expert was about to discredit her findings and that her professional reputation would suffer if she did not reverse her opinion. Here, a majority of the justices concluded that there was a sufficient basis to admit evidence of the encounter as a possible instance of witness tampering, and that the trial court’s decision to exclude that evidence was harmful.47
Justice Pariente, concurring in part and dissenting in part, agreed with the majority’s conclusion that the trial court’s error in excluding Dr. Dildy’s testimony was harmful, but disagreed that the same standard should apply in criminal and civil appeals.48 Drawing on the Fourth District’s analysis, Justice Pariente argued forcefully that the difference between the burdens of proof in criminal and civil trials requires different standards for evaluating error on appeal. In her view, the majority’s approach divorced the criminal standard articulated in DiGuilio from its roots in constitutional concern for the rights of the criminal defendant.49
Justice Lewis agreed with the plurality’s adoption of the criminal standard but wrote separately to explain further why, in his view, different standards were inappropriate.50 Justice Lewis warned that adopting different standards for criminal and civil appeals “would only foster inconsistency and confusion in Florida law.”51 He reasoned that adopting the more stringent criminal standard for civil appeals would promote fairness by sending a strong message to litigants that courts will not lightly disregard errors. Finally, Justice Lewis concluded that, because §59.041 expressly applies “in any cause, civil or criminal,” “[t]he plain language of this section demonstrates that the [l]egislature has specifically and unambiguously elected not to apply a different harmless error standard in criminal and civil cases.”52
In a dissent, Justice Polston, joined by Justice Canady, rejected both the majority’s adoption of the criminal standard and its conclusion that the error was harmful based on the facts of the case. Justice Polston agreed with Justice Pariente that the standard for harmless error in civil appeals should reflect the lower burden of proof in civil trials. However, Justice Polston disagreed with both Justice Pariente and the majority by concluding that the trial court’s exclusion of Dr. Dildy’s testimony was harmless error. Justice Polston believed, as did the Fourth District, that the excluded testimony added little to Special’s case. For one thing, other evidence regarding the national rate of AFE already enabled Special to argue that AFE was being overdiagnosed at West Boca. Further, in his excluded testimony, Dr. Dildy hedged his answers by emphasizing that statistics about diagnoses in other cases were irrelevant because the diagnosis of AFE in Susan’s case was correct.53
In sum, in Special, four justices agreed that the same standard for harmless error should apply in criminal and civil cases, while three justices would have adopted the Fourth District’s modified standard for civil cases.
A Heavy Burden
The unforgiving standard for harmless error in criminal appeals was designed to protect the rights of the criminal defendant. There may be compelling reasons for extending that standard to civil appeals, but doing so will undoubtedly make it easier for appellants in civil cases to get a new trial. The beneficiary of an error in a civil case now bears the heavy burden of showing that there is no reasonable possibility that the error affected the fact-finder.
In many cases, the new standard will mean the difference between affirmance and reversal. For example, in Hurtado v. Desouza, No. 4D12-1817, 40 Fla. L. Weekly D891, 2015 WL 1727851 (Fla. 4th DCA Apr. 15, 2015), the Fourth District Court of Appeal vacated an opinion issued before the Florida Supreme Court’s decision in Special and concluded that, under the new standard, an error in a civil trial was, in fact, harmful. “Applying the new standard,” the court explained, “we cannot say that the admission of this evidence was harmless because the plaintiff failed to prove that the error complained of did not contribute to the verdict.”54
Many civil verdict issues, such as damages, are “soft” in the sense that the law will accommodate a range of determinations by the fact-finder. To the extent that a trial error could impact a jury’s decision on such an issue, the beneficiary of the error will have difficulty convincing a principled appellate court that the error was harmless.
Conclusion
In Special, the Florida Supreme Court extended the standard for harmless error in criminal appeals to civil appeals. Although only a plurality agreed on how to apply that standard to the facts of the case, a majority agreed that, in general, the same standard should apply in civil and criminal appeals. taking a strict standard designed to protect the constitutional rights of the criminal defendant and applying that standard to civil appeals, the Florida Supreme Court has made it easier for appellants in civil cases to get a new trial. Moreover, by adopting the criminal standard, the Florida Supreme Court has shifted the focus in civil appeals away from the error’s effect on the trial’s outcome and toward its effect on the fact-finder.
1 Special v. Baux, 79 So. 3d 755, 757 (Fla. 4th DCA 2011) (en banc), rev’d sub nom. Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014).
2 Id. at 757-58.
3 Id. at 771 (receding from, among others, Pascale v. Fed. Exp. Corp., 656 So. 2d 1351 (Fla. 4th DCA 1995)); Aristek Communities, Inc. v. Fuller, 453 So. 2d 547 (Fla. 4th DCA 1984); and Anthony v. Douglas, 201 So. 2d 917 (Fla. 4th DCA 1967).
4 Id.
5 Id. at 771-72.
6 Id. at 760.
7 Doe v. Tyler, (1830) 130 Eng. Rep. 1397 (C.P.) 1398 (Tindal, CJ).
8 Crease, 149 Eng. Rep. at 1359 (Parke, B.).
9 Roger J. Traynor, The Riddle of Harmless Error 8 (1970).
10 Supreme Court of Judicature Act, 1873, 38 & 39 Vict., c. 77, ord. 39.
11 See Roger A. Fairfax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 Marq. L. Rev. 433, 435-37 (2009).
12 People v. St. Clair, 56 Cal. 406 (Cal. 1880).
13 See Fairfax, A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 Marq. L. Rev. at 436-37 (2009).
14 See id. at 437-41.
15 See Report of the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation, 33 A.B.A. Rep. 542 (1908).
16 28 U.S.C. §2111 (2012) (“On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”).
17 Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”);
Fed. R. Civ. P. 61 (“Unless justice requires otherwise, no error in admitting or excluding evidence — or any other error by the court or a party — is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”).
18 Kotteakos v. United States, 328 U.S. 750, 759-60 (1946).
19 Chapman, 386 U.S. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963) (internal quotation marks omitted)).
20 Id. at 24.
21 See Wadsworth v. State, 201 So. 2d 836, 842 (Fla. 4th DCA 1967) (Willson, J., dissenting) (discussing the history of the Orthodox Rule and the Exchequer Rule in Florida law), rev’d, 210 So. 2d 4 (Fla. 1968).
22 Act of May 26, 1911, ch. 6223, 1911 Fla. Laws 193.
23 Fla. Stat. §59.041 (2015).
24 Traynor, The Riddle of Harmless Error at 15.
25 Henderson v. State, 113 So. 689, 698 (1927).
26 See, e.g., Cornelius v. State, 49 So. 2d 332, 335 (Fla. 1950); Banks v. State, 156 So. 905, 906 (1934).
27 See, e.g., Rance v. Hutchinson, 179 So. 777, 780 (1938); E.O. Roper, Inc. v. Wilson & Toomer Fertilizer Co., 156 So. 883, 884 (1934).
28 DiGuilio, 491 So. 2d at 1138.
29 But see Roy D. Wasson, The Appellate Process: The Riddling of the DiGuilio Harmless Error Standard: Whether Error “Contributed” to the Verdict, 5
Barry L. Rev. 57 (2005) (arguing that the DiGuilio standard has been inconsistently applied and “riddled” with holes).
30 DiGuilio, 491 So. 2d at 1139.
31 See, e.g., Pascale v. Fed. Exp. Corp., 656 So. 2d 1351, 1353 (Fla. 4th DCA 1995); Aristek Communities, Inc. v. Fuller, 453 So. 2d 547, 548 (Fla. 4th DCA 1984). These cases stem from the Fourth District’s decision in Anthony v. Douglas, 201 So. 2d 917 (Fla. 4th DCA 1967). Anthony, in turn, relied on two cases for its unduly restrictive standard. The first, Cornelius v. State, 49 So. 2d 332 (Fla. 1950), was a criminal case decided before DiGuilio, and the second, Banco Nacional de Cuba v. Steckel, 134 So. 2d 23 (Fla. 3d DCA 1961), did not articulate any standard for harmless error.
32 See, e.g., Nat’l Union Fire Ins. Co. v. Blackmon, 754 So. 2d 840 (Fla. 1st DCA 2000); Katos v. Cushing, 601 So. 2d 612, 613 (Fla. 3d DCA 1992). This standard seems to have developed from a “tentative suggestion” in a footnote in Marks v. Delcastillo, 386 So. 2d 1259, 1267, n.15 (Fla. 3d DCA 1980), which later courts misinterpreted as blackletter law.
33 See, e.g., Fla. Inst. for Neurological Rehab., Inc. v. Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006); Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979). This standard may derive from a California Supreme Court decision, People v. Watson, 299 P.2d 243, 254 (Cal. 1956), interpreting an almost identical harmless error provision in the California Constitution. Compare Cal. Const. art. VI, §13 with Fla. Stat. §59.041 (2015).
34 Kotteakos v. United States, 328 U.S. 750, 764 (1946).
35 Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988 (1973).
36 Id. at 991.
37 Id. at 997.
38 Id. at 1020-21.
39 Haddad, 720 F.2d at 1459.
40 McQueeney, 779 F.2d at 926-27.
41 Id. at 927.
42 Special, 160 So. 3d at 1253.
43 Id. at 1257.
44 Id.
45 Id. at 1260.
46 Id. at 1260-61.
47 Id. at 1261-65.
48 Id. at 1265-70 (Pariente, J., concurring in part and dissenting in part). Justice Pariente also disagreed that the trial court erred by excluding evidence regarding defense counsel’s comments to Dr. Wolf. Id. at 1271-72.
49 Id. at 1267-70.
50 Id. at 1272-78 (Lewis, J., specially concurring in part and dissenting in part). Justice Lewis parted with the majority in that he thought the trial court was wrong to exclude evidence as to both instances of alleged witness tampering. Id. at 1276-78.
51 Id. at 1272.
52 Id. at 1273.
53 Id. at 1278-79 (Polston, J., dissenting).
54 Hurtado, 2015 WL 1727851 at *1 (internal quotation marks omitted).
Judge Robert M. Gross has served on the Fourth District Court of Appeal, in West Palm Beach, since 1995.
David R. Maass is an associate at Alley, Maass, Rogers & Lindsay, P.A., in Palm Beach.
