Leading the Court Into Error May No Longer Be So Harmless

Leading the Court Into Error May No Longer Be So Harmless

Judges and lawyers on each side of a case must now be more careful in how they try cases and that the evidence presented is presented fairly and fully.

The ruling of Florida’s Supreme Court in the case of Frank Special vs. West Boca Medical Center represents an enormous change in the law.

“The Florida Supreme Court changed the entire standard for reversible error for civil cases, reversing years of previous state law as to what constitutes a reversible error in a civil trial,” says Grossman Roth Attorney Gary M. Cohen.

Previously, if an attorney lost a case due to an error by the judge or defense counsel, the adversely affected attorney had the burden to prove that the error more likely than not caused the decision. If that burden, which was almost always impossible to meet, was not proven, then the error would be deemed harmless.

The Supreme Court’s ruling in Special has now appropriately shifted the burden of proving that any error was harmless to the party that caused it, instead of the party that is harmed by it. As the Court put it “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; the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” As Cohen puts it “Neither party should be in a position to lead a Court into error and then claim, without proof, no harm/no foul.”
Witness Intimidation.

An additional crucial ruling by the Florida Supreme Court in Special v. West Boca Medical Center regards witness tampering by the defense counsel. The Palm Beach County Assistant Medical Examiner found that Mrs. Special did not die of amniotic fluid embolus as contended by the defense. In a blatant attempt to intimidate the ME, the defense told her just before giving her deposition, that they had retained a “world-renowned authority” on AFE who found amniotic fluid embolus on every pathology slide.

The ME was told that she missed the diagnosis and would be ruining her reputation and destroying her career by disagreeing and standing by her original read. Despite this, the ME did stand by her read and testified there was absolutely no evidence of AFE on any of the slides. She was also reported to the Florida Department of Medicine based on that same supposed expert’s report. Later, that “renowned expert authority” was withdrawn.

At trial, the judge precluded any evidence of an attempt at witness intimidation to come before the jury. However, the Florida Supreme Court reversed the trial just and held “In this case, it is more probable then not that a third party with the ‘authority, consent, or knowledge’ of Defendant Baux, if not West Boca Medical Center as well, attempted to influence Dr. Wolf (the ME) and alter her testimony.” The Court, therefore, ruled that the testimony regarding this attempt at witness intimidation will come into evidence at the new trial.

Cohen agreed, saying “any attempt to threaten or intimidate a witness, and in this case, a public official is a disgraceful conduct that should not go unpunished.”


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