Harmless Errors on Appeal: No Reasonable Possibility Test
Special v. West Boca Medical Center:
Harmless Error & The No Reasonable Possibility Test
In November 2014, the Florida Supreme Court clarified the standard for determining whether an error committed at the trial court level in a civil case constitutes a harmless error. This is important because harmless errors do not result in a reversal of a trial court or jury decision. Only harmful errors can result in a reversal.
In Special v. West Boca Medical Center, a divided Florida Supreme Court adopted the
“no reasonable possibility” test for harmless error. Under this test, error is harmless only if there is no reasonable possibility that the error contributed to the verdict. In other words, if the error contributed to the outcome, then reversal of the decision below is needed.
The “no reasonable possibility “ test focuses on both the trier of fact and the outcome of the case. It asks whether there is any reasonable possibility that the trier of fact was influenced by the error in determining the outcome of the case. If the answer is yes, then the error was not harmless and reversal is necessary.
In Special, he Court announced the standard for harmless error in civil cases as follows: “To test for harmless error, the beneficiary of the error has the burden 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 contributed to the verdict.”
The “no reasonable possibility” test for harmless error in civil cases established by the Court in Special is similar to the test applied to harmless error in criminal cases. Like it did in the seminal case of State v. DiGuilio, 491 So 2d 1129, 1135, 1139 (Fla. 1986), which set the harmless error test in criminal cases, the Special Court cited to the harmless error rule contained in section 59.041, Florida Statutes (2003), and citing DiGuilio at 1135, explained how this test is applied:
(a]pplication of [this] test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.
Thus, the application of the “no reasonable possibility” test does not take place in a vacuum. It requires a careful factual analysis of the issues of the case and of whether there was any possibility the alleged errors could have influenced the trier of fact’s determination of those issues.
The majority of the Court in Special, (Chief Justice Labarga, who authored the majority opinion, and Justices Lewis, Quince, and Perry) agreed on the “no reasonable possibility” harmless error standard. Likewise, a majority of the Court (those justices who agreed to the “no reasonable possibility “ test, joined by Justice Pariente) agreed that the Petitioner was entitled to a new trial.
Justice Pariente, concurring in part and dissenting in part, disagreed that the “no reasonable possibility” test should be applied in civil cases. She argued that because the constitutional interests and underlying burdens of proof are different in criminal than in civil cases, the harmless error test for civil cases also should be different. She proposed the “more likely than not” test adopted by the Fourth District Court of Appeal. In the “more likely than not” test, the party benefitting from the error in a civil case would have an easier time showing that the error was harmless and that the trial court determination should not be reversed. Under her proposed “more likely than not” test, the party benefitting from the error in a civil case would only need to show that it is more likely than not that the error did not influence the trier of fact or the verdict.
Applying her proposed standard, Judge Pariente nevertheless found that the trial court made several evidentiary errors and that those errors were not harmless. On that basis she agreed that the Petitioner was entitled to a new trial.
Each separate opinion in Special carefully reviews the trial court’s evidentiary rulings and determines if they were harmless error. The differing opinions and analysis of whether the trial court’s evidentiary rulings constituted reversible error serve to illustrate how difficult it can be to actually apply any harmless error standard to the facts of a particular case.
The “no reasonable possibility” standard established in Special may make it harder in civil cases to argue on appeal that trial court error was harmless. This could lead to more reversals of appeal. However, some skeptics have speculated it could lead to more cases being affirmed through PCAs, because of the already heavy workload of the appellate courts. Just outcomes will depend on all members of the legal profession, lawyers, and judges taking the time and making the effort to evaluate the “no reasonable possibility” standard as it applies to each and every appeal. This new standard may make it more difficult to establish that errors were harmless, but perhaps it may also help reduce overall errors, resulting in fewer meritorious appeals.
The “no reasonably possibility” harmless error test for civil cases, underscores the importance for civil litigators to know how each piece of evidence fits into the theory of the case and how it might influence the trier of fact and the verdict. If you know this going into the case, then you can explain the relevancy of your evidence at trial and you have already laid the foundation for your appeal, should you need to pursue one.