Frank Special v. West Boca Medical Center , 39 Fla. L. Weekly Supp. 676 ( 2014 )


Menu:
  •           Supreme Court of Florida
    ____________
    No. SC11-2511
    ____________
    FRANK SPECIAL, et al.,
    Petitioners,
    vs.
    WEST BOCA MEDICAL CENTER, et al.,
    Respondents.
    [November 13, 2014]
    LABARGA, C.J.
    This case is before the Court for review of the decision of the Fourth District
    Court of Appeal in Special v. Baux, M.D., et al., 
    79 So. 3d 755
    (Fla. 4th DCA
    2011). In its decision, the district court ruled upon the following question, which
    the court certified to be 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?
    
    Id. at 771-72.
    We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As we
    explain below, we answer the certified question in the negative. We hold that the
    test for harmless error requires the beneficiary of the error 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 complained of contributed to the verdict. We begin by setting forth the facts
    and the procedural history of this case, and we then turn to our discussion of the
    proper harmless error test in civil appeals. We conclude with our discussion of the
    harmless error test as applied to the facts of this case. Because there is a
    reasonable possibility that certain errors by the trial court contributed to the
    verdict, we reverse the judgment of the district court and remand for a new trial.
    In order to avoid any possible confusion stemming from our multiple
    opinions, we further explain that a majority of this Court (Chief Justice Labarga
    and Justices Lewis, Quince, and Perry) concur as to the harmless error standard
    that we announce today. Moreover, a majority of this Court (Chief Justice Labarga
    and Justices Pariente, Lewis, Quince, and Perry) concur that Petitioner, Frank
    Special, is entitled to a new trial. While the separate opinions reach different
    conclusions about the three instances of harmless error argued as grounds for a
    new trial, as explained more fully below, the plurality opinion grants a new trial
    based on two harmful errors (the exclusion of testimony relating to the over-
    diagnosis of amniotic fluid embolus (AFE) and the exclusion of testimony
    regarding statements made to the medical examiner through her attorney).
    -2-
    FACTS AND PROCEDURAL HISTORY
    In 2003, Susan Special (Susan) died following the delivery of her son.
    Frank Special (Special), as the personal representative of his wife Susan’s estate,
    sued Dr. Ivo Baux and his related corporations (Baux), and West Boca Medical
    Center, Inc. (West Boca), for negligence. The Fourth District detailed the
    following events concerning the birth:
    Susan Special became pregnant at age 38. Five weeks before
    her due date, [Susan] underwent a cesarean delivery. She was
    wheeled into the operating room at the Center’s labor and delivery
    suite. Dr. Baux, the anesthesiologist, administered spinal anesthesia.
    A moment after the placenta was removed, Susan became
    unresponsive, her blood pressure fell precipitately, and she went into
    cardiopulmonary arrest. Dr. Baux and hospital staff attempted to
    revive her. She was temporarily resuscitated and transferred to the
    Intensive Care Unit, where another cardiopulmonary arrest occurred.
    Susan died five hours after the delivery.
    
    Id. at 757.
    Following Susan’s death, Special filed a lawsuit against defendants Baux
    and West Boca, which alleged that the defendants’ negligence caused Susan’s
    death. The lawsuit proceeded to trial, at which the cause of Susan’s death was the
    central issue. Special alleged that Baux and West Boca “were negligent in
    administering anesthesia, in monitoring [Susan’s] system and controlling her fluids
    during surgery, and in responding to her cardiopulmonary arrests.” 
    Id. Baux and
    West Boca defended against these claims and asserted that Susan’s death was
    -3-
    caused by an amniotic fluid embolus (AFE), which is an allergic reaction that
    develops when a mother’s blood mixes with amniotic fluid.
    The parties offered conflicting expert testimony concerning the cause of
    Susan’s death. Ultimately, the jury found that Baux and West Boca were not liable
    for Susan’s death, and the trial court entered judgment in favor of the defendants.
    Special appealed to the Fourth District Court of Appeal, which ultimately
    considered this case en banc in order “to reconsider other decisions of this court
    describing the harmless error test in civil cases.” 
    Id. at 757.
    The district court held
    that “[t]o 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.” 
    Id. at 771.
    The district court then
    applied the “more likely than not” harmless error test to the facts of Special and
    concluded that it was more likely than not that the alleged errors did not contribute
    to the verdict. 
    Id. at 772.
    Having concluded harmless error, the district court
    affirmed the trial court’s judgment in favor of Baux and West Boca.
    However, the district court certified to this Court a question of great public
    importance for the purpose of determining the proper test for harmless error in civil
    appeals. This Court accepted jurisdiction in order to consider the certified
    question. In addition to the question certified by the district court, before this
    Court, Special argues specific instances of harmful error: (1) the exclusion of the
    -4-
    proffered testimony of Dr. Gary Dildy, the defense AFE expert; and (2) the
    exclusion of evidence related to the alleged witness tampering of Dr. Barbara
    Wolf, the chief deputy medical examiner. We begin with our discussion of
    harmless error and the appropriate test for harmless error in civil appeals. We then
    evaluate the assertions of error in this case in light of the test that we announce
    today.
    ANALYSIS
    The Test for Harmless Error
    The purpose of the harmless error analysis is to “conserve judicial labor by
    holding harmless those errors which, in the context of [a] case, do not vitiate the
    right to a fair trial and, thus, do not require a new trial.” State v. DiGuilio, 
    491 So. 2d
    1129, 1135 (Fla. 1986). Although the harmless error analysis serves a clear
    purpose, over time, the test for determining whether error is indeed harmless has
    been fluid. As we discuss below, this Court has previously set forth the test for
    harmless error in criminal appeals; however, the question certified by the district
    court calls upon this Court to announce the correct test for harmless error in civil
    appeals. Because the certified question presents a pure question of law, our
    standard of review is de novo. See Jackson-Shaw Co. v. Jacksonville Aviation
    Auth., 
    8 So. 3d 1076
    , 1085 (Fla. 2008) (citing Macola v. Gov’t Emp. Ins. Co., 
    953 So. 2d 451
    , 454 (Fla. 2006)).
    -5-
    As we consider the proper test for determining harmless error in civil
    appeals, we are mindful of the harmless error rule contained in section 59.041,
    Florida Statutes (2003), which provides as follows:
    Harmless error; effect.—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.
    § 59.041, Fla. Stat. (2003).1 Under this rule, appellate courts must evaluate
    harmless error on a case-by-case basis. Moreover, within the context of each case,
    in order to determine whether “the error complained of has resulted in a
    miscarriage of justice,” the court’s analysis must include an examination of the
    entire record. What remains, however, with respect to civil appeals, is an
    interpretation of the language “resulted in a miscarriage of justice”—i.e., the
    determination of a test for harmless error. Over time, a number of approaches to
    harmless error have evolved. This evolution has resulted in the application of a
    variety of tests to determine harmless error.
    However, it is appropriate to begin our analysis of the proper test for
    harmless error in civil appeals with this Court’s decision in DiGuilio—a seminal
    1. The harmless error rule contained in section 59.041 was codified in 1911
    and has not substantively changed since that time.
    -6-
    decision in the line of cases interpreting harmless error in Florida, wherein this
    Court set forth the test for harmless error in criminal cases. In DiGuilio, the
    defendant was convicted of conspiracy to traffic in cocaine. 
    491 So. 2d
    at 1130.
    On appeal, his conviction was reversed by the district court because the prosecutor
    improperly “elicited testimony from a witness which could be interpreted by the
    jury as a comment on [the defendant’s] right to remain silent.” 
    Id. The district
    court certified a question of great public importance to this Court, asking this Court
    to determine whether comments on a defendant’s right to remain silent are subject
    to harmless error analysis, as opposed to a rule of per se reversal. 
    Id. This Court
    answered the certified question in the affirmative and held that while comments on
    a defendant’s right to remain silent amount to constitutional error, such comments
    “are subject to harmless error analysis. . . .” 
    Id. at 1137.
    Having held that the harmless error test applied to DiGuilio’s claim of error,
    this Court explained that in order to demonstrate harmless error, “the beneficiary of
    the error [has the burden] 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.” 
    Id. at 1135,
    1139 (citing Chapman v. California, 
    386 U.S. 18
    , 24 (1967)). Thus, as opposed to
    a result-oriented test that is strictly focused on the accuracy of the result or the
    weight of the evidence, the DiGuilio harmless error test focuses on the effect of the
    -7-
    error on both the trier-of-fact and the result. See Johnson v. State, 
    53 So. 3d 1003
    ,
    1007 (Fla. 2010) (emphasis added) (“The test for harmless error focuses on the
    effect of the error on the trier of fact.”); Burns v. State, 
    699 So. 2d 646
    , 652 (Fla.
    1997) (noting that reversal is required if the error contributed to the jury’s
    recommendation or the error contributed to the outcome). To emphasize the
    appellate court’s duty to focus on the effect of the error on the trier-of-fact, we
    explained that the harmless error test is not:
    a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a
    substantial evidence, a more probable than not, a clear and
    convincing, or even an overwhelming evidence test. Harmless error is
    not a device for the appellate court to substitute itself for the trier-of-
    fact by simply weighing the evidence.
    DiGuilio, 
    491 So. 2d
    at 1139. Moreover, a determination of whether an error is
    harmless should not be made in a vacuum. Rather, the
    [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.
    
    Id. at 1135.
    Thus, the appellate court must remain focused on the error itself in
    order to evaluate whether the beneficiary of the error has proven that there is no
    reasonable possibility that the error contributed to the verdict.
    -8-
    The Test for Harmless Error in Civil Appeals
    Although the test for harmless error as stated in DiGuilio applies to criminal
    appeals, we conclude that this test, with slight modification to accommodate the
    civil context, is also the appropriate test for harmless error in civil appeals. Thus,
    today, we announce the following test for determining harmless error in civil
    appeals:
    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.
    Thus, as in DiGuilio, the responsibility for proving harmless error remains
    with the beneficiary of the error, who must demonstrate that there is no reasonable
    possibility that the error contributed to the verdict. As the appellate court evaluates
    whether the beneficiary of the error has satisfied its burden, the court’s obligation
    is to focus on the effect of the error on the trier-of-fact and avoid engaging in an
    analysis that looks only to the result in order to determine harmless error. Could
    the admission of evidence that should have been excluded have contributed to the
    verdict? Could the exclusion of evidence that should have been admitted have
    contributed to the verdict? Unless the beneficiary of the error proves that there is
    no reasonable possibility that the error contributed to the verdict, the error is
    harmful.
    -9-
    We observe that this test is consistent with the harmless error rule codified in
    section 59.041, and the Legislature’s intent that relief be granted only in the event
    of “a miscarriage of justice.” An appellate court’s harmless error analysis is not
    limited to the result in a given case, but it necessarily concerns the process of
    arriving at that result. “A large word like justice, incorporated into a rule
    governing harmless error, compels an appellate court to concern itself not alone
    with a particular result but also with the very integrity of the judicial process.”
    Roger J. Traynor, The Riddle of Harmless Error 17 (1970). By focusing on the
    effect of the error on the trier-of-fact, the appellate court will evaluate harmless
    error in a manner that is consistent with section 59.041.
    Moreover, the application of the no reasonable possibility test for harmless
    error in civil appeals will serve multiple purposes. The test acts in a manner so as
    to conserve judicial resources while protecting the integrity of the process.
    Additionally, the test strikes the proper balance between the parties. While the
    party that seeks relief must still identify the error and raise the issue before the
    appellate court, this test properly places the burden of proving harmless error on
    the beneficiary of the error. Requiring the beneficiary of the error to demonstrate
    that there is no reasonable possibility that the error contributed to the verdict
    discourages efforts to introduce error into the proceedings. “Equity and logic
    demand that the burden of proving such an error harmless must be placed on the
    - 10 -
    party who improperly introduced the evidence. [Placing] the burden of proof on
    the party against whom the evidence is used . . . would simply encourage the
    introduction of improper evidence.” Gormley v. GTE Prod. Corp., 
    587 So. 2d 455
    ,
    459 (Fla. 1991).
    The no reasonable possibility test also strikes the appropriate balance
    between the need for finality and the integrity of the judicial process. The test
    recognizes that not all errors have a reasonable possibility of contributing to the
    verdict, but the test affords relief on account of errors that do. Further, the
    application of the no reasonable possibility test for harmless error will foster
    consistency in appellate courts’ analyses of harmless error. Having articulated the
    proper test for harmless error in civil appeals, we now apply the test to the facts of
    the present case.
    Evaluation of Harmless Error in this Case
    Special argues that the trial court committed harmful error when it excluded
    the proffered cross-examination of the defense AFE expert and when it excluded
    evidence related to two circumstances of alleged witness tampering. We discuss
    each of these arguments in turn. Consistent with the discussion that follows, we
    conclude that the exclusion of the cross-examination testimony and the exclusion
    of certain evidence of witness tampering were indeed harmful.
    - 11 -
    The Cross-Examination of Dr. Dildy
    The cause of Susan’s death was the key issue at trial. Baux and West Boca
    defended themselves against Special’s allegations of negligence on the grounds
    that Susan died as the result of AFE. Special contested the AFE diagnosis and
    attempted to demonstrate that West Boca had a practice of over-diagnosing AFE.
    To that end, Special argues that the trial court erred when it precluded counsel
    from cross-examining Dr. Gary Dildy, the defense AFE expert, concerning
    whether West Boca was over-diagnosing AFE.
    At trial, Dr. Dildy opined that Susan died of AFE. Dr. Dildy’s diagnosis
    was a diagnosis of exclusion, at which he arrived after ruling out other possible
    causes of death. On cross-examination, Dr. Dildy testified that approximately one
    in 20,000 births results in AFE, but the occurrence of AFE can range from one in
    8,000 to one in 80,000 births. Special sought to further cross-examine Dr. Dildy
    with a line of questioning that was intended to undermine the credibility of the
    testimony of those who diagnosed Susan as having died from AFE—including the
    testimony of Dr. Mark Adelman, the West Boca pulmonologist who diagnosed
    Susan with AFE after the emergency began. Dr. Adelman testified that the
    national average for AFE diagnoses can range from approximately one in 30,000
    births to one in 80,000 births, but he estimated that during the then-eighteen-year
    existence of the obstetrics department at West Boca, there were 20,000 births and
    - 12 -
    one to two AFE diagnoses per year. Special introduced an interrogatory response
    from West Boca that showed that contrary to Dr. Adelman’s estimate of 20,000
    births per year, the average number of births per year at West Boca was about
    2,200 births. Based on the national averages of AFE as testified to by
    Dr. Adelman and Dr. Dildy, Special sought to elicit an opinion from Dr. Dildy on
    whether AFE was being overdiagnosed at West Boca.
    The defense objected to this line of questioning. After receiving argument
    from the parties, the trial court sustained the defense objection. However, the trial
    court allowed Special to proffer the cross-examination of Dr. Dildy. In relevant
    part, Special proffered the following:
    SPECIAL: Dr. Dildy, if, in fact, there are one to two amniotic
    fluid emboluses diagnosed . . . at West Boca Medical Center every
    year, and there are, in fact, 2,200 births per year . . . what does that tell
    you about West Boca Medical Center?
    DILDY: Well, under those assumptions, there’s about one per
    thousand, that would be higher than the generally quoted rates in the
    literature. On the one hand, over a short period of time, it’s certainly
    possible that things can occur in clusters. Over the long term, if there
    were strong data to suggest that amniotic fluid embolism were
    occurring at that rate over a period—over many years, then I would
    probably have to say that it’s being overdiagnosed.
    SPECIAL: And, if, in fact, there’s evidence that over a 17- to
    18-year period, it’s consistently one to two amniotic fluid emboluses
    per year, diagnosed by the critical care doctor, Dr. Adelman, and there
    are 2,200 births approximately per year, over that same period of time,
    do you believe the term “amniotic fluid embolism,” at West Boca
    Medical Center, is being overused?
    - 13 -
    DILDY: If they were at that rate over a long period of time, I
    suspect there’s many cases where you have presumed amniotic fluid
    embolism, but the pattern may not be—in fact, even in our study we
    had a number of presumed cases we excluded. . . . But, I would say
    certainly there’s no question, there are cases of abnormal outcomes
    and disease states that are labeled as amniotic fluid embolism, where
    other people would argue it’s not.
    SPECIAL: If there is 1 in 2,000 births a year, that’s
    approximately ten times what you told us is a fair national average,
    correct?
    DILDY: Either ten times or five times, depending upon how
    you do the math, right?
    SPECIAL: The math that you gave us was, that you believe is a
    reasonable number, that 1 in 20,000 patients have AFE, correct?
    DILDY: That’s one number I offered. It could be 1 in 8,000.
    SPECIAL: It could be 1 in 80,000?
    DILDY: It could be 1 in 80,000.
    SPECIAL: So if there is one a year in West Boca Medical
    Center, that would be 1 in 2,000 as opposed to 1 in 20,000, that’s ten
    times the national average.
    DILDY: That would be a higher rate, correct.
    SPECIAL: If it’s 1 in 80,000, it would be 40 times the national
    average, right?
    DILDY: Correct.
    ***
    SPECIAL: . . . If there are two AFEs a year at West Boca
    Medical Center, and the national average is 1 in 80,000 say, okay, and
    - 14 -
    there’s 2 per 2,000 at West Boca Medical Center, just doing the math,
    that would be 80 times the national average?
    DILDY: Under those assumptions, right.
    SPECIAL: Under those assumptions, what would that tell you
    about AFE and West Boca Medical Center?
    DILDY: I would be very concerned that if this is actually a
    recorded incidence, as opposed to somebody’s recollection. Because
    if you ask me, what’s the incidence of this or that, I could give you a
    number which is going to be a pretty ballpark number. If that’s a
    documented incidence, I would be concerned that the rate is probably
    inflated.
    SPECIAL: And although you might be off here or there, you
    wouldn’t be off by 40, 80 times the national average, would you, at
    your hospital?
    DILDY: It just depends on how the question is asked. . . .
    SPECIAL: If you’re asked how many you diagnose a year and
    you say one to two, it shouldn’t be off by 30, 40 times, should it?
    DILDY: No, I would say in a place that does a little over 2,000
    deliveries a year, you could easily have one or two a year per couple
    of years or here or there, but you wouldn’t expect to have one or two
    per year long term, no. But this case here, we’re talking about, it
    doesn’t matter what all these other cases are, this case is this case, and
    this case is an amniotic fluid embolism.
    Following the proffer, the trial court restated its ruling that Special would not be
    allowed to cross-examine Dr. Dildy on the issue of over-diagnosis. On appeal,
    although the district court concluded that the trial court should have allowed the
    excluded testimony, the court also determined that the exclusion of Dr. Dildy’s
    testimony was harmless error under the “more likely than not” standard.
    - 15 -
    We agree with the district court that the trial court erred in excluding the
    testimony. The rules of evidence provided the trial court with no discretion to
    exclude the contested cross-examination. Section 90.403 of the Florida Statutes
    permits trial courts to exclude only evidence in which the “probative value is
    substantially outweighed by the danger of unfair prejudice, confusion of issues,
    misleading the jury, or needless presentation of cumulative evidence.” § 90.403,
    Fla. Stat. (2007). Florida courts do not have the authority to bar or limit adverse or
    relevant evidence such as Special attempted to present here. Because the trial
    court erred when it excluded Dr. Dildy’s testimony, we proceed to evaluate the
    error in light of the harmless error test we announce today. In doing so, we
    conclude that Baux and West Boca, as the beneficiaries of the error, have not
    demonstrated that there is no reasonable possibility that the exclusion of
    Dr. Dildy’s testimony contributed to the verdict.
    Was the Exclusion of Dr. Dildy’s Testimony Harmless Error?
    The essence of Special’s argument on this issue is as follows: the jury should
    have been allowed to hear Dr. Dildy’s opinion that if one to two out of 2,200 births
    each year at West Boca resulted in a diagnosis of AFE, West Boca was
    overdiagnosing AFE—thus drawing into question the credibility of the diagnosis
    of Susan. Special contends that the exclusion of this testimony was harmful error.
    We agree.
    - 16 -
    During the trial, Dr. Dildy reiterated his opinion that Susan died from AFE.
    Dr. Dildy also agreed that AFE was a diagnosis of exclusion, in other words, it is
    diagnosed only after other explanations are ruled out. As noted by the district
    court in this case, “[w]here the diagnosis is one of exclusion, the frequency with
    which one comes to that conclusion is a ‘material fact’ bearing upon the credibility
    of the diagnosis.” 
    Special, 79 So. 3d at 759
    (footnote omitted). By precluding the
    jury from considering Dr. Dildy’s testimony with regard to the over-diagnosis of
    AFE, Special was prevented from presenting evidence to demonstrate and further
    support the argument that physicians at West Boca were over-diagnosing AFE.
    The inability to address this issue through Dr. Dildy during cross-examination
    hindered Special’s efforts to undermine the credibility and weight of Baux and
    West Boca’s defense with regard to the cause of Susan’s death as well as the
    credibility of Dr. Dildy, who held steadfast to the AFE diagnosis. See 
    id. at 759-60
    (“The cross-examination was also relevant to Dr. Dildy’s direct examination where
    he testified to the incidence of AFE in births and its rarity.” (emphasis supplied)).
    We reject the Fourth District’s conclusion that the error was harmless
    because the excluded testimony was cumulative. The Fourth District stated:
    This issue was presented to the jury through the testimony of Dr.
    Adelman and in part from Dr. Dildy. This evidence allowed the
    plaintiff’s attorney in closing argument to hammer on the significance
    of the statistical abnormality.
    - 17 -
    
    Id. at 772.
    Because the battle of experts has become as much a part of a trial as the
    conflict that the litigation addresses, see Marsh v. Valyou, 
    977 So. 2d 543
    , 548
    (Fla. 2007) (quoting Berry v. CSX Transp., Inc., 
    709 So. 2d 552
    , 571 (Fla. 1st
    DCA 1998)); Emory v. Fla. Freedom Newspapers, 
    687 So. 2d 846
    , 847 (Fla. 4th
    DCA 1997); Secada v. Weinstein, 
    563 So. 2d 172
    , 172 (Fla. 3d DCA 1990);
    Langston v. King, 
    410 So. 2d 179
    , 180 (Fla. 4th DCA 1982), Special’s inability to
    critically address the issue of over-diagnosis with Dr. Dildy significantly
    handicapped his case. Also without merit is Baux and West Boca’s allegation that
    if the trial court erred in excluding this testimony, the error was harmless because
    Special was able to discuss this issue during closing argument. The commentary
    of counsel in closing is not evidence, nor may the jury consider the mere argument
    as evidence when it deliberates and renders a verdict. See Braddy v. State, 
    111 So. 3d
    810, 843 (Fla. 2012) (“The trial court properly instructed the jury that
    statements [offered] during closing argument did not constitute evidence to be
    considered in determining [the defendant’s] guilt.”), cert. denied, 
    134 S. Ct. 275
    (2013). Barring an entire line of cross-examination of an expert witness
    concerning critical facts and opinions directly related to the core issue of a case
    necessitates recognition that the responses of the expert witness here would have
    yielded powerful impeachment evidence. Dr. Dildy’s concession as to the
    inaccuracies and anomalies of Dr. Adelman’s AFE diagnoses would have
    - 18 -
    reasonably had a significant effect on the jury’s deliberations and decisions,
    particularly with regard to the cause of Susan’s death.
    Given the relevance and probative force of Dr. Dildy’s testimony, the
    exclusion of this cross-examination was in fact harmful. The jury should have
    been permitted to hear testimony on this factual issue and to weigh it against the
    statements and credibility of the testifying experts. To the extent that Baux and
    West Boca allege that Dr. Adelman’s numbers concerning the rate of AFE at the
    hospital were “grossly overestimated,” and thus should not serve as a basis for
    Special’s allegation of over-diagnosis, this was an issue for the jury to determine.
    There is more than a “reasonable possibility” that the trial court’s erroneous
    evidentiary ruling contributed to the verdict, and accordingly, a new trial is
    required. See DiGuilio, 
    491 So. 2d
    at 1135. Having concluded that the exclusion
    of Dr. Dildy’s testimony was harmful error, we now turn to the exclusion of
    evidence of alleged witness tampering.
    Witness Tampering
    Special also argues that the trial court erred when it excluded evidence
    relating to the defense’s alleged witness tampering of Dr. Barbara Wolf, the deputy
    chief medical examiner who performed the autopsy on Susan. Dr. Wolf concluded
    that the autopsy revealed no evidence of AFE and opined to a reasonable degree of
    medical certainty that Susan did not die of AFE. A part of the autopsy included
    - 19 -
    obtaining specimens that were used to create slides for microscopic examination in
    order to determine the presence of AFE.
    According to Special, the defense attempted to intimidate Dr. Wolf because
    she did not agree that AFE was the cause of Susan’s death. At trial, Dr. Wolf
    testified that while the majority of AFE-related deaths yield evidence of AFE in the
    autopsy, the autopsy of Susan revealed no evidence of AFE. Although the district
    court did not address this issue in its opinion, “. . . once this Court has jurisdiction
    of a cause, it has jurisdiction to consider all issues appropriately raised in the
    appellate process, as though the case had originally come to this Court on appeal.”
    Savoie v. State, 
    422 So. 2d 308
    , 312 (Fla. 1982). Although “[t]his authority to
    consider issues other than those upon which jurisdiction is based is discretionary
    with this Court and should be exercised only when these other issues have been
    properly briefed and argued and are dispositive of the case,” we do so here because
    of the serious nature of witness tampering allegations. 
    Id. Florida courts
    permit evidence of threats or witness intimidation if the
    threats are attributable to the opposing party. See Koon v. State, 
    513 So. 2d 1253
    ,
    1256 (Fla. 1987) (“It has been held that evidence of threats made against witnesses
    is inadmissible to prove guilt unless the threats are shown to be attributable to the
    defendant.”) (citing Duke v. State, 
    142 So. 886
    (Fla. 1932); Jones v. State, 
    385 So. 2d
    1042 (Fla. 1st DCA 1980); Coleman v. State, 
    335 So. 2d 364
    (Fla. 4th DCA
    - 20 -
    1976)); see also State v. Price, 
    491 So. 2d
    536, 536-37 (Fla. 1986) (“A third
    person’s attempt to influence a witness is inadmissible on the issue of the
    defendant’s guilt unless the defendant has authorized the third party’s action.”);
    Manuel v. State, 
    524 So. 2d 734
    , 735 (Fla. 1st DCA 1988) (noting that testimony
    concerning witness intimidation is admissible “provided the attempt was with the
    authority, consent, or knowledge of the defendant”).2 It is admissible because it is
    “evidence of a consciousness of guilt,” and there is nothing more sacred than
    judicial proceedings that are free from attempts to tamper with or intimidate
    witnesses. See Coronado v. State, 
    654 So. 2d 1267
    (Fla. 2d DCA 1995). Indeed,
    without a judicial proceeding free of intimidation and threats, there is no reason for
    the fact-finding process. The decision to permit evidence of unscrupulous conduct,
    however, is tempered by those “circumstances where testimony concerning third-
    party threats may . . . be deemed so prejudicial as to require its exclusion” despite
    2. In Lynch v. McGovern, 
    270 So. 2d 770
    , 772 (Fla. 4th DCA 1972)
    (quoting Wigmore on Evidence, Vol. 2 (3d ed.), section 278, at 120), the Fourth
    District stated:
    * * * it has always been understood—the inference, indeed, is
    one of the simplest in human experience—that a party’s falsehood or
    other fraud in the preparation and presentation of his cause, his
    fabrication or suppression of evidence by bribery or spoliation, and all
    similar conduct, is receivable against him as an indication of his
    consciousness that his case is a weak or unfounded one; and from that
    consciousness may be inferred the fact itself of the cause’s lack of
    truth and merit (emphasis added).
    - 21 -
    otherwise being admissible according to the evidentiary rules. See Koon, 
    513 So. 2d
    at 1256 (citing State v. Price, 
    491 So. 2d
    536 (Fla. 1986)).
    The trial court addressed the alleged intimidation as two separate issues:
    (1) whether sufficient evidence was presented to introduce into evidence the fact
    that a disciplinary proceeding had been filed against Dr. Wolf by the Florida
    Department of Health (DOH); and (2) whether the defense attempted to intimidate
    Dr. Wolf prior to her deposition. The trial court allowed Special to only proffer
    Dr. Wolf’s testimony on these issues. We evaluate each allegation in turn.
    Department of Health Complaint
    After the initiation of the lawsuit against Dr. Baux, a DOH complaint was
    initiated against him. To assist in the defense of Dr. Baux, his attorney, Eugene
    Ciotoli, hired Dr. Stephen Factor as an expert. Dr. Factor reviewed the slides from
    the autopsy, and contrary to Dr. Wolf’s conclusion, determined that the slides
    showed widespread proof of AFE.
    The record reveals that subsequently, a Dr. Katims, at DOH, recommended
    in a memorandum that
    we open a file on Barbara Wolf, M.D., the medical examiner who did
    the initial autopsy and specifically indicated that she found no
    evidence of amniotic fluid embolus. At the request of a defense
    attorney, another pathologist reviewed the tissue and apparently cut
    new sections and found evidence of widespread embolism from
    amniotic fluid. This is a serious error and we should open the file so
    that we may deal with it appropriately.
    - 22 -
    When DOH issued a formal complaint against Dr. Wolf, she hired counsel,
    William Pincus, to defend her.
    Special sought to introduce evidence of the DOH complaint against
    Dr. Wolf as evidence of witness tampering. However, the trial court concluded
    that there was an insufficient link between the defense and the filing of the
    complaint. The trial court precluded testimony “with respect to the [DOH]
    investigation . . . [because] I don’t believe there’s a sufficient evidentiary nexus to
    allow us to go there [and address witness intimidation] at this point. [Dr. Wolf]
    doesn’t know who filed [the complaint that led to the disciplinary proceeding], and
    we can surmise who may or may not have, but I don’t think we have enough to go
    there.” We agree.
    Dr. Factor’s observations were made during the course of his role in
    defending Dr. Baux’s DOH matter, and it appears that the defense attorney request
    referenced in the memorandum from Dr. Katims was a request that Dr. Factor
    review the slides in order to assist in defending Dr. Baux—not a request that DOH
    issue a complaint against Dr. Wolf. The evidence in the record demonstrates that
    DOH initiated its investigation of Dr. Wolf in light of Dr. Factor’s conclusions, not
    because of a specific request by the defense. Thus, we agree with the trial court’s
    conclusion that there was an insufficient factual basis to attribute the DOH
    - 23 -
    complaint against Dr. Wolf to Baux or West Boca. Thus, this evidence was
    properly excluded.
    Statements to Dr. Wolf
    Although we agree with the trial court’s exclusion of evidence relating to the
    DOH complaint, we conclude that the trial court erred when it excluded evidence
    of witness tampering in the form of statements made to Dr. Wolf through her
    attorney. Special was precluded from introducing Dr. Wolf’s testimony about the
    statements because the trial court concluded that while relevant, the evidence
    constituted double hearsay. As we explain, the jury was entitled to hear this
    evidence.
    About three months after the filing of the DOH complaint against Dr. Wolf,
    Dr. Wolf was deposed by the defense. According to Dr. Wolf, just before the
    deposition, her lawyer (William Pincus) told her of statements from Dr. Baux’s
    defense counsel (Eugene Ciotoli). Allegedly, Mr. Ciotoli suggested to Mr. Pincus
    that Dr. Wolf might not want to embarrass herself by maintaining that the autopsy
    showed no evidence of AFE and that a world-renowned AFE expert was going to
    contradict her opinion and testify that the slides on which she saw no evidence of
    AFE were actually replete with evidence of AFE. Dr. Wolf was handed
    photographs of the slides just before the deposition, which she reviewed, and
    ultimately determined that her opinion was the same, that there was no evidence of
    - 24 -
    AFE on the slides. At trial, Special proffered the following testimony from
    Dr. Wolf:
    SPECIAL: Please tell us what you were told and by who?
    DR. WOLF: I was informed by Mr. Pinkus [sic] that, as he phrased it,
    I would not want to embarrass myself according to the defense
    attorney, by disagreeing with Dr. Factor, who was identified to me as
    the defense expert involved in the Board of Medicine complaint.
    SPECIAL: And—
    DR. WOLF: I’m sorry.
    SPECIAL: Go ahead.
    DR. WOLF: I was also given a note. Mr. Ciotoli gave my lawyer,
    who was also present, who then gave to me a notebook containing a
    number of photographs that were identified as being photographs
    taken by Dr. Factor of the slides in this case that allegedly
    demonstrated the presence of amniotic fluid.
    SPECIAL: All right. How, did you—the information that you got
    regarding not wanting to go up against Dr. Factor, was that
    information provided to you by your lawyer that he got from the
    defense lawyer, is that how you understood it?
    DR. WOLF: Yes, it was.
    Dr. Wolf did not change her opinion that the autopsy did not reveal evidence of
    AFE, nor her conclusion that Susan did not die of AFE. But, she stated during her
    proffered testimony that she believed that the statements and related conduct were
    an attempt to get her to change her testimony:
    SPECIAL: Okay. What did you think after you looked at the pictures,
    after you heard what you had been told first, that it was supposedly on
    - 25 -
    these slides, and then you looked at these pictures and it wasn’t there.
    What did you think somebody was attempting to do to your
    testimony?
    DR. WOLF: By being offered that, being shown these photographs
    immediately before my deposition, I assumed that an attempt was
    being made to change my mind.
    SPECIAL: And you were not intimidated in that regard, were you?
    DR. WOLF: Certainly not.
    This relevant evidence was admissible. In Jost v. Ahmad, the Second
    District Court of Appeal addressed an allegation of witness tampering in a medical
    malpractice case. Jost, 
    730 So. 2d 708
    , 710 (Fla. 2d DCA 1998). The plaintiff’s
    treating physician testified that the hospital’s insurance carrier contacted the
    physician’s risk management officer, and the carrier attempted to pass along
    information to the physician suggesting that he should remember that his
    “testimony was to limit collateral damage.” 
    Id. at 709-10.
    The trial court denied
    the plaintiff’s request to question the physician about the communication before
    the jury. 
    Id. at 710.
    The Second District held that the trial court reversibly erred
    by excluding the communication because attempts at witness intimidation are
    “ ‘fundamentally unfair and pervert the truth-seeking function.’ ” 
    Id. at 711
    (quoting McCool v. Gehret, 
    657 A.2d 269
    (Del. 1995)). The district court
    explained that to determine whether the communication should be admitted, the
    “threshold question [wa]s whether the matter is relevant,” which “turns on the
    - 26 -
    meaning of the communication as it could be reasonably understood by [the
    targeted witness].” 
    Id. at 710.
    With this question in mind, the Second District
    concluded that the excluded testimony should have been admitted as both
    impeachment and substantive evidence. See 
    id. at 711.
    Evidence of this nature “need not lead inescapably towards a single
    conclusion to be relevant, it need only make certain facts more probable than not.”
    McQueeney v. Wilmington Trust Co., 
    779 F.2d 916
    , 921 (3d Cir. 1985). In this
    case, it is more probable than not that a third party with the “authority, consent, or
    knowledge” of Baux, if not West Boca as well, attempted to influence Dr. Wolf
    and alter her testimony. See 
    Manuel, 524 So. 2d at 735
    (citing Price, 
    491 So. 2d
    536). Neither Baux nor West Boca has provided this Court with a reason to
    conclude that some other person or party would have had a motive to harass
    Dr. Wolf as occurred here, and it is unlikely that some other person or party would
    have been privy to and interested in Dr. Wolf’s conclusions regarding the cause of
    Susan’s death. The circumstances strongly suggest that the defense or someone
    working on behalf of the defense was responsible for the events that occurred prior
    to Dr. Wolf’s deposition, and that party intended to and did exert pressure on
    Dr. Wolf in an effort to change her opinion.
    Special satisfied the requirements in Jost that the challenged testimony must
    be relevant and the communication reasonably understood by the targeted witness
    - 27 -
    as an attempt to intimidate. First, in its order, the trial court properly found
    Dr. Wolf’s testimony to be relevant. This testimony concerned the key issue in
    this case—the cause of Susan’s death. Second, although Dr. Wolf may not have
    changed her testimony nor been intimidated, she understood the intent of the
    events preceding her deposition to be an effort to alter her conclusion.
    Moreover, because the intimidating parties were acting as agents of Baux,
    the trial court’s hearsay concerns are eliminated. Compare 
    Jost, 730 So. 2d at 710
    (permitting admission of communications to the targeted doctor from the
    defendant’s insurance carrier, which is “akin to a communication from [the
    defendant] . . . [and not akin to] a communications from a third party with no direct
    interest in the outcome of the case.”), with Nagel v. State, 
    774 So. 2d 835
    , 838
    (Fla. 4th DCA 2000) (ruling that a police officer’s testimony was inadmissible
    because the state did not present evidence that the contested telephone call “was
    made with appellant’s authority, consent, or knowledge”). The trial court’s failure
    to admit testimony on this issue amounted to an abuse of discretion, and in light of
    the harmful error caused by the exclusion of this evidence, a new trial is required.
    CONCLUSION
    For the foregoing reasons, in a civil appeal, the test for harmless error
    requires the beneficiary of the error to prove that the error complained of did not
    contribute to the verdict. Alternatively stated, the beneficiary of the error must
    - 28 -
    prove that there is no reasonable possibility that the error complained of
    contributed to the verdict. We reverse the district court’s decision and remand for
    proceedings consistent with this opinion.
    It is so ordered.
    QUINCE and PERRY, JJ., concur.
    PARIENTE, J., concurs in part and dissents in part with an opinion.
    LEWIS, J., specially concurs in part and dissents in part with an opinion.
    POLSTON, J., dissents with an opinion in which CANADY, J., concurs.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
    IF FILED, DETERMINED.
    PARIENTE, J., concurring in part and dissenting in part.
    I join the majority in concluding that a new trial is warranted based on the
    erroneous and harmful exclusion of testimony regarding the overdiagnosis of
    amniotic fluid embolus (AFE) that the plaintiff sought to elicit during the cross-
    examination of the defense’s expert witness. I dissent, however, from the
    majority’s decision to adopt the same harmless error standard for civil cases as is
    used in criminal cases, despite the different burdens of proof and constitutional
    interests that are implicated in the civil and criminal contexts. I also disagree with
    the majority’s conclusion that the trial court erred in excluding evidence related to
    the alleged witness tampering of the deputy medical examiner.
    My primary disagreement is with the majority’s decision to adopt the
    criminal “no reasonable possibility” test for harmless error, which is grounded in
    - 29 -
    the “beyond a reasonable doubt” standard of proof that applies in criminal trials.
    Because a different standard applies in civil cases, and because the attributes of the
    two types of cases are very different, I would adopt the “more likely than not”
    standard set forth by the Fourth District Court of Appeal and require the
    beneficiary of the error in a civil case to show that it is more likely than not that the
    error did not influence the trier of fact and thereby contribute to the verdict.
    I begin by discussing my view concerning the appropriate standard for
    harmless error in civil cases and then proceed to address each of the specific
    instances of alleged error in turn.
    I. Harmless Error Standard in Civil Cases
    While I disagree with the ultimate standard adopted by the majority, I do
    agree with both the majority and the Fourth District in rejecting the outcome-
    determinative “but for” test for determining harmless error in civil cases in favor of
    an “effect on the trier-of-fact” approach, as embodied in the harmless error
    approach this Court adopted in State v. DiGuilio, 
    491 So. 2d
    1129, 1135 (Fla.
    1986). See majority op. at 8-9; Special v. Baux, 
    79 So. 3d 755
    , 770-71 (Fla. 4th
    DCA 2011). As this Court explained in DiGuilio, “harmless error analysis must
    not become a device whereby the appellate court substitutes itself for the jury.”
    DiGuilio, 
    491 So. 2d
    at 1136. Further, placing the burden of proof on the
    - 30 -
    beneficiary of the error, as the majority properly does, is consistent with our own
    precedent in civil cases:
    Equity and logic demand that the burden of proving such an error
    harmless must be placed on the party who improperly introduced the
    evidence. Putting the burden of proof on the party against whom the
    evidence is used, as the district court did, would simply encourage the
    introduction of improper evidence. The record in this case shows that
    the issue of liability was close. We cannot say that the jury’s verdict
    on liability was not improperly influenced by the evidence of the
    Gormleys’ insurance claim. The likelihood of improper influence on
    the liability issue was not rebutted by the one who introduced the
    evidence.
    Gormley v. GTE Prods. Corp., 
    587 So. 2d 455
    , 459 (Fla. 1991); see also Sheffield
    v. Superior Ins. Co., 
    800 So. 2d 197
    , 203 (Fla. 2001) (“The burden of proving that
    the admission of the collateral source evidence was harmless rests on [the
    beneficiary of the collateral source evidence].”).
    However, because of the differing burdens of proof and constitutional rights
    at stake, I disagree with the majority’s adoption of the identical standard for
    harmless error in civil cases as applies in criminal cases. By adopting the test for
    harmless error that applies to criminal cases without even referencing the different
    burdens and interests that apply in the civil context, the majority favors form over
    substance and offers no compelling explanation as to why the “no reasonable
    possibility” language from DiGuilio, which is rooted in the “beyond a reasonable
    doubt” burden of proof, should be used in civil cases. As stated by the Fourth
    - 31 -
    District, the harmless error test for civil cases “should acknowledge the particular
    attributes of those cases.” 
    Special, 79 So. 3d at 770
    .
    Indeed, the most obvious attribute of civil cases that distinguishes them from
    their criminal counterparts is the “preponderance of the evidence” burden of proof
    that applies instead of the “beyond a reasonable doubt” standard that is the
    hallmark of criminal prosecutions. Although the harmless error test articulated by
    this Court in DiGuilio is based on the “beyond a reasonable doubt” standard that
    applies in the criminal context, DiGuilio, 
    491 So. 2d
    at 1138, the majority omits
    any discussion of the completely different “preponderance of the evidence”
    standard that applies in the civil context—despite adopting the identical harmless
    error test.
    Specifically, instead of acknowledging this important difference, the
    majority simply transplants the “no reasonable possibility” language from the
    criminal harmless error test into the civil test it adopts, while eliminating the
    “beyond a reasonable doubt” portion of the test articulated in DiGuilio. Although
    unstated, the majority would presumably substitute the phrase “more likely than
    not” in place of “beyond a reasonable doubt,” and thus the test would require the
    beneficiary of the error to prove “more likely than not” that the error did not
    contribute to the verdict, or alternatively stated, that there is “no reasonable
    - 32 -
    possibility” that the error contributed to the verdict. Because this test does not
    account for the different burdens of proof, it simply makes no sense.
    While it is of course true that trial level burdens of proof and appellate
    standards of legal error are different concepts, I respectfully disagree with Justice
    Lewis’s assertion in his separate opinion that “[t]he level of a factual burden of
    proof at trial has nothing to do with the standards for appellate legal error.”
    Specially concurring in part & dissenting in part op. at 48 (Lewis, J.). As the
    majority itself makes clear, the harmless error test seeks to determine the effect a
    particular error had on the trier of fact and is not a device for an appellate court to
    improperly substitute its judgment for that of the jury. See majority op. at 8
    (“Harmless error is not a device for the appellate court to substitute itself for the
    trier-of-fact by simply weighing the evidence.” (quoting DiGuilio, 
    491 So. 2d
    at
    1139)). In other words, the harmless error test asks the appellate court to put itself
    in the shoes of the jury and analyze how the error affected the jury, taking into
    consideration the permissible evidence upon which the jury could have
    legitimately relied and the impermissible evidence that may have influenced the
    jury’s verdict.
    In my view, the only way to properly assess how an error would have
    affected the jury is to apply an appellate standard that accounts for the burden of
    proof the jury was required to apply at trial. Such an approach does not
    - 33 -
    “commingle[] and confuse[]” trial level burdens with appellate standards.
    Specially concurring in part & dissenting in part op. at 48 (Lewis, J.). Instead, it
    appropriately acknowledges the proper role of an appellate court performing a
    harmless error test and recognizes that assessing the impact of an error on the
    jury—as the majority itself concludes to be the correct approach—requires the test
    applied by the appellate court to account for the burden applied by the jury.
    Section 59.041, Florida Statutes (2003), provides that a court may not set
    aside a judgment or grant a new trial in any case, whether civil or criminal, unless
    “the error complained of has resulted in a miscarriage of justice.” As the majority
    appropriately recognizes, “[u]nder this rule, appellate courts must evaluate
    harmless error on a case-by-case basis” and determine what constitutes a
    “miscarriage of justice” based on the record and factors present in each particular
    case. Majority op. at 6.
    In his separate opinion, Justice Lewis suggests that the Legislature’s use of
    the same “miscarriage of justice” language for both criminal and civil cases
    “specifically and unambiguously” indicates that the Legislature intended the same
    harmless error test to apply in both contexts. Specially concurring in part &
    dissenting in part op. at 48 (Lewis, J.). However, it is the test this Court adopted in
    DiGuilio that gives meaning to the phrase “miscarriage of justice” in criminal
    cases—while respecting the Legislature’s authority to enact harmless error
    - 34 -
    statutes—and that sets forth a framework for applying the standard on a case-by-
    case basis. In fact, this point was recognized by the Fourth District, which
    explained that “the trigger for reversible error is the occurrence of a ‘miscarriage of
    justice’; how the courts have defined this term has determined the scope of the
    statute’s application.” 
    Special, 79 So. 3d at 761
    .
    Any analysis that is specific to each case must account for the particular
    attributes and distinctive features of that case. In other words, while “miscarriage
    of justice” is the standard that the Legislature has chosen to apply to all cases, what
    constitutes a “miscarriage of justice” in one case is not the same as what
    constitutes a “miscarriage of justice” in another. It is up to the judiciary to develop
    a framework for assessing and analyzing this determination in individual cases. If
    the statute clearly and unambiguously set forth the specific test for courts to apply
    to determine whether an error is harmless in an individual case, courts would not
    have struggled for more than a century to interpret the statute, and this Court would
    not now be called upon to provide a framework for analyzing what constitutes a
    “miscarriage of justice” in civil cases.
    Instead of adopting the identical test for the sake of consistency between
    cases that arise in contexts that are completely different, I would adopt the well-
    reasoned opinion of the Fourth District as to the appropriate standard for harmless
    error in civil cases. Sitting en banc, the Fourth District cogently articulated why
    - 35 -
    the proper test should require the beneficiary of the error to prove “more likely
    than not that the error did not influence the trier of fact and thereby contribute to
    the verdict.” 
    Special, 79 So. 3d at 771
    .
    In my view, the Fourth District persuasively explained why a different
    standard for reversal is well-suited to civil cases:
    In formulating a harmless error test in civil cases, it is important
    to recognize that DiGuilio derived its formulation from the elevated
    burden of proof in criminal cases:
    The harmless error test . . . 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.
    DiGuilio, 
    491 So. 2d
    at 1135 (emphasis added) (citation omitted).
    This elevated test acknowledges (1) the higher burden of proof in
    criminal cases, which amplifies the potential effect of an evidentiary
    error on the trier of fact, and (2) the special concern for the legitimacy
    of criminal convictions expressed in the constitutional and statutory
    protections accorded to criminal defendants. A harmless error test for
    civil cases should acknowledge the particular attributes of those cases.
    
    Id. at 770.
    In other words, as DiGuilio makes clear, the “no reasonable possibility”
    language in the criminal harmless error test cannot be divorced from the “beyond a
    reasonable doubt” language, since the two phrases are simply alternative
    formulations of the same test, which is rooted in the “particular attributes” of
    criminal prosecutions. See Chapman v. California, 
    386 U.S. 18
    , 24 (1967) (“There
    is little, if any, difference between our statement in [a prior case] about ‘whether
    - 36 -
    there is a reasonable possibility that the evidence complained of might have
    contributed to the conviction’ and requiring the beneficiary of a constitutional error
    to prove beyond a reasonable doubt that the error complained of did not contribute
    to the verdict obtained.”); see also Black’s Law Dictionary 1457 (10th ed. 2009)
    (defining “reasonable doubt” as “the belief that there is a real possibility that a
    defendant is not guilty”).
    When the Court is required to address harmless error in criminal cases, it is
    always the State that has obtained a conviction against a defendant based in some
    measure on an erroneous legal ruling at trial. Therefore, the strictest formulation
    of the harmless error test, as set forth in DiGuilio, is consistent with the State’s
    responsibility to ensure that convictions are secured without the assistance of
    harmful errors, which is an important public policy concern. See DiGuilio, 
    491 So. 2d
    at 1138-39.
    By contrast, an error in a civil case could result in potential harm to either a
    plaintiff or a defendant. Thus, the use of the same standard for harmless error as
    applies to the burden of proof in civil cases—that a particular occurrence was
    “more likely than not”—vindicates the concerns that the majority refers to as
    “conserv[ing] judicial resources while protecting the integrity of the process.”
    Majority op. at 10. It also “strikes the proper balance between the parties.” 
    Id. In fact,
    a harmless error test based on the “preponderance of the evidence” standard
    - 37 -
    actually strikes a better and more appropriate balance because it takes into account
    how each of the parties in a civil case may be affected by an erroneous legal ruling.
    As stated by the Ninth Circuit Court of Appeals regarding why that circuit
    applies a different harmless error standard for civil and criminal cases:
    The purpose of a harmless error standard is to enable an
    appellate court to gauge the probability that the trier of fact was
    affected by the error. Perhaps the most important factor to consider in
    fashioning such a standard is the nature of the particular fact-finding
    process to which the standard is to be applied. Accordingly, a crucial
    first step in determining how we should gauge the probability that an
    error was harmless is recognizing the distinction between civil and
    criminal trials. This distinction has two facets, each of which reflects
    the differing burdens of proof in civil and criminal cases. First, the
    lower burden of proof in civil cases implies a larger margin of error.
    The danger of the harmless error doctrine is that an appellate court
    may usurp the jury’s function, by merely deleting improper evidence
    from the record and assessing the sufficiency of the evidence to
    support the verdict below. This danger has less practical importance
    where, as in most civil cases, the jury verdict merely rests on a more
    probable than not standard of proof.
    The second facet of the distinction between errors in civil and
    criminal trials involves the differing degrees of certainty owed to civil
    and criminal litigants. Whereas a criminal defendant must be found
    guilty beyond a reasonable doubt, a civil litigant merely has a right to
    a jury verdict that more probably than not corresponds to the truth.
    The civil litigant’s lessened entitlement to veracity continues
    when the litigant becomes an appellant. We conclude that a proper
    harmless error standard for civil cases should reflect the burden of
    proof. Just as the verdict in a civil case need only be more probably
    than not true, so an error in a civil trial need only be more probably
    than not harmless. In other words, when an appellate court ponders
    the probable effect of an error on a civil trial, it need only find that the
    jury’s verdict is more probably than not untainted by the error.
    - 38 -
    Haddad v. Lockheed Cal. Corp., 
    720 F.2d 1454
    , 1458-59 (9th Cir. 1983) (emphasis
    added) (citations omitted). The Tenth Circuit Court of Appeals has also aptly
    explained why “absent some countervailing policy . . . the harmless error standard
    should mirror the standard applied at trial,” since logic requires the stringency of
    the test for judging error on appeal to be the same as the stringency of the standard
    applied at trial. U.S. Indus., Inc. v. Touche Ross & Co., 
    854 F.2d 1223
    , 1252 n.39
    (10th Cir. 1988).
    Although Justice Lewis in his separate opinion relies on McQueeney v.
    Wilmington Trust Co., 
    779 F.2d 916
    (3d Cir. 1985), for the proposition that the
    same standard should apply in both contexts, the Third Circuit Court of Appeals
    has adopted “a moderately stringent, though not unreasonably high, standard in
    civil as well as criminal cases”—unlike the most stringent test for harmless error
    that this Court adopted in DiGuilio for criminal cases. 
    Id. at 927;
    see also Gov’t of
    Virgin Islands v. Toto, 
    529 F.2d 278
    , 284 (3d Cir. 1976) (explaining that the Third
    Circuit follows the “middle ground” or “highly probable” test for harmless error).
    The harmless error test adopted by the Third Circuit is simply not the standard in
    Florida, and the considerations identified by the Third Circuit as a basis for
    applying the same test are therefore less persuasive. See Roger J. Traynor, The
    Riddle of Harmless Error 35 (1970) (explaining that an appellate court has three
    options in choosing a harmless error standard: (1) more probable than not; (2)
    - 39 -
    highly probable; or (3) almost certain); 
    McQueeney, 779 F.2d at 924
    (stating that
    “beyond a reasonable doubt” is “a more stringent standard than ‘high
    probability,’ ” as followed in the Third Circuit).
    The Third Circuit has stated, as a basis for adopting the same test for
    harmless error in civil and criminal cases, that “broad institutional concerns
    militate against increasing the number of errors deemed harmless.” 
    McQueeney, 779 F.2d at 927
    . This Court, however, already follows that policy in applying the
    most stringent of possible harmless error standards for criminal cases, where the
    defendant’s constitutional liberty interest is always at stake. Unlike in Florida, the
    Third Circuit’s test for harmless error in the criminal context is not based on the
    “beyond a reasonable doubt” standard. To apply a lower standard for civil cases
    than an already less stringent standard that applies to criminal cases would lead to
    the kind of potential for an increased number of errors that is simply not an issue in
    Florida.
    For all these reasons, I would adopt the Fourth District’s cogent articulation
    of the proper test for harmless error in civil cases. Under this approach,
    harmless error occurs in a civil case when it is more likely than not
    that the error did not contribute to the judgment. 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.
    
    Special, 79 So. 3d at 771
    .
    - 40 -
    II. The Alleged Errors
    Having set forth what I believe to be the appropriate test for harmless error
    in civil cases, I now address the two specific instances of alleged error in this case.
    In short, I agree with the majority’s conclusion as to the first, but disagree as to the
    second.
    A. Exclusion of Cross-Examination Concerning AFE
    Although I disagree with this Court’s adoption of the same test for harmless
    error in civil cases as the Court applies in criminal cases, I agree with the majority
    that the error in restricting the cross-examination of the defense expert regarding
    the overdiagnosis of AFE was not harmless error, regardless of which standard is
    applied. Because the focus of the entire case revolved around whether Susan
    Special’s death was caused by medical malpractice or AFE, the limitation on the
    cross-examination and the acknowledgment by the defense’s own expert
    concerning the possibility of overdiagnosis of AFE cannot be said to amount to
    harmless error. That is, Baux and West Boca have not demonstrated that it is more
    likely than not that the exclusion of this testimony did not contribute to the jury’s
    verdict finding the defendants not liable. This testimony directly called into
    question the credibility of the AFE diagnosis in this case, particularly because AFE
    is a diagnosis of exclusion, and unduly restricted Special’s ability to undermine the
    defense expert’s testimony in the minds of the jurors.
    - 41 -
    Further, I agree that the ability of trial counsel to argue about overdiagnosis
    in closing is not a substitute for having the defense’s own expert acknowledge the
    overdiagnosis of AFE, where the competing expert opinions were the focal point of
    this medical malpractice case. See Linn v. Fossum, 
    946 So. 2d 1032
    , 1041 (Fla.
    2006) (“We conclude that the trial court erred in allowing Dr. Weaver-Osterholtz
    to testify that she consulted with colleagues and that this error was not harmless
    because the competing expert opinions on the proper standard of care were the
    focal point of this medical malpractice trial.”); see also Donshik v. Sherman, 
    861 So. 2d 53
    , 56 (Fla. 3d DCA 2003) (“Where, as here, the competing expert
    opinions, on both sides, were the focal point of the trial, we cannot deem the error
    in the introduction of the ACAS report to be harmless.”).
    Accordingly, because the trial court’s error in restricting the cross-
    examination of the defense expert was not harmless, a new trial is warranted.
    B. Exclusion of Testimony Concerning Alleged Witness Tampering
    Lastly, based on the record before the trial court, I disagree with the majority
    that there was any error in disallowing testimony of the deputy medical examiner,
    Dr. Barbara Wolf, on what the plaintiff alleged to be “witness tampering.” I
    deplore, as does this Court, any threats or attempts at intimidation attributable to
    the adverse party. The key, however, is that the proper predicate must be laid to
    show that it was the adverse party or its agent that made the threats or attempted to
    - 42 -
    intimidate a witness. To allow a party to argue witness intimidation where there is
    insufficient evidence demonstrating that this is what occurred is incredibly
    prejudicial to the party being accused of the improper conduct. See Penalver v.
    State, 
    926 So. 2d 1118
    , 1129-30 (Fla. 2006). The majority, in fact, recognizes this
    critical point in correctly concluding that there was an insufficient factual basis to
    attribute the Department of Health complaint against Dr. Wolf to the defendants
    and that this evidence was therefore properly excluded.
    However, as to the pre-deposition comments allegedly made to Dr. Wolf by
    her attorney, neither Dr. Wolf’s attorney nor Baux’s defense attorney, the original
    declarant, testified as to what was said. Therefore, as the trial court properly
    recognized, the double hearsay issue with these alleged statements presents a
    threshold problem for their admission.
    Moreover, simply being provided with photographs of slides taken by
    another expert, Dr. Factor, does not, in itself, amount to witness intimidation.
    There would have been nothing wrong with the plaintiff asking Dr. Wolf at trial if
    her attorney showed her photographs of slides taken by Dr. Factor before her
    deposition and whether that changed her opinion regarding her conclusion about
    the cause of death. That is a far cry, though, from allowing the plaintiff to argue to
    the jury that agents of the defense attempted to intimidate the witness and that
    those actions are evidence of their culpability.
    - 43 -
    It may be that in a new trial, a more specific nexus can be established with
    the defendants’ alleged actions to pressure Dr. Wolf to change her testimony,
    including testimony from either of the two attorneys who engaged in the alleged
    conversation. The current record, however, is devoid of anything but hearsay and
    attenuated connections, with speculation having to fill the missing pieces. While I
    do not object to the further development of facts on this issue on remand, I would
    affirm the trial court’s decision to exclude the evidence based on the facts as
    presented.
    III. Conclusion
    In sum, I concur in the majority’s conclusion that a new trial is warranted
    based on the trial court’s error, which was not harmless, in excluding cross-
    examination testimony from the defense expert concerning the overdiagnosis of
    AFE. I dissent, however, from the majority’s adoption of the identical standard for
    harmless error in civil cases as applies in the criminal context. This decision, in
    my view, fails to account for the important differences that exist between civil and
    criminal trials.
    LEWIS, J., specially concurring in part and dissenting in part.
    I concur with the well-reasoned and intellectually direct majority opinion as
    it accepts and adopts the standard for review that the beneficiary of the error must
    establish that there is no reasonable possibility that the error contributed to the
    - 44 -
    verdict to uphold application of harmless error. I also concur with the common
    sense and logical majority opinion and conclude that the failure of the trial court to
    permit the jury to hear testimony from Dr. Dildy concerning the extremely high
    rate of amniotic fluid embolus (AFE) diagnoses at West Boca constitutes harmful
    error that merits a new trial. I write separately only because I believe that
    additional justifications not mentioned by the majority explain why the harmless
    error test adopted today is appropriate in all civil appeals. Further, contrary to the
    majority in one limited area, I would permit the full exploration and further
    development of both allegations of witness intimidation in connection with the new
    trial proceedings.
    The Harmless Error Standard
    I agree with the majority’s conclusion that the “no reasonable possibility”
    harmless error standard preserves judicial resources, protects the integrity of the
    judicial process, and strikes the appropriate balance between parties. Equity and
    logic demand that the burden of proving an error to be harmless must be placed on
    the party who improperly introduced the evidence. Placing the burden on the party
    that introduced the error serves not only to penalize the offending party, but also
    discourages future efforts to introduce error into proceedings. If we were to place
    the burden of proof on the party against whom the evidence is used, we would
    simply encourage the introduction of improper evidence. Gormley v. GTE Prod.
    - 45 -
    Corp., 
    587 So. 2d 455
    , 459 (Fla. 1991); see also Sheffield v. Superior Ins. Co., 
    800 So. 2d 197
    , 203 (Fla. 2001) (“[W]hen a trial lawyer leads a judge into an obvious
    error . . . cries of harmless error on appeal are likely to fall on deaf ears.”) (quoting
    Mattek v. White, 
    695 So. 2d 942
    , 944 (Fla. 4th DCA 1997)).
    However, I also believe that DiGuilio’s pervasiveness in harmless error
    assessments underscores why this Court should not depart from it by adopting a
    different standard for civil proceedings. See State v. DiGuilio, 
    491 So. 2d
    1129,
    1135 (Fla. 1986). Developing a different standard would only foster inconsistency
    and confusion in Florida law. See McQueeney v. Wilmington Trust Co., 
    779 F.2d 916
    , 927 (3d Cir. 1985) (discussing the varying standards of review in civil cases,
    and why creating a different test for harmless error in the civil versus criminal
    context would only add unnecessary confusion and complication for the courts).
    Furthermore, by applying the DiGuilio test in the civil context, we signal to
    litigating parties that our courts will not review allegations of error lightly, nor
    perpetuate such errors by affording them less scrutiny than the “reasonable
    possibility of affecting the verdict” standard provides. Further, by applying the
    DiGuilio test, we endorse a public policy that discourages any increase in the
    number of errors that our courts deems harmless. See 
    McQueeney, 779 F.2d at 927
    (“[B]road institutional concerns militate against increasing the number of
    errors deemed harmless.”).
    - 46 -
    In DiGuilio, we addressed the relevant statutory authority, and explained
    why section 924.33, Florida Statutes (1981), applied as opposed to section 59.041.
    See 
    491 So. 2d
    at 1133-34. Section 924.33 provides:
    No judgment shall be reversed unless the appellate court is of the
    opinion, after an examination of all the appeal papers, that error was
    committed that injuriously affected the substantial rights of the
    appellant. It shall not be presumed that error injuriously affected the
    substantial rights of the appellant.
    This section is part of chapter 924, which is titled “Criminal Appeals and
    Collateral Review.” § 924.33, Fla. Stat. (2003). The DiGuilio Court stated that
    section 924.33 applied because that statute: (1) applies to all judgments regardless
    of the type of error involved; and (2) explicitly provides that there shall be no
    presumption that errors are reversible unless it can be shown that they are harmful.
    See 
    491 So. 2d
    at 1133-34. Although section 59.041 did not apply in DiGuilio, the
    differences between this section and section 924.33 are not such as to render
    DiGuilio’s analysis inapposite. Section 59.041 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.
    - 47 -
    § 59.041, Fla. Stat. (2003) (emphasis supplied). The plain language of this section
    demonstrates that the Legislature has specifically and unambiguously elected not
    to apply a different harmless error standard in criminal and civil cases.3
    Justice Pariente, in her concurring in part and dissenting in part opinion,
    criticizes the majority for “favoring form over substance” and adopting a harmless
    error standard in civil cases that is inconsistent with the clear legislative directive
    articulated in section 59.041. She claims that the majority has ignored critical
    factors, such as the differing burdens of proof and other “particular attributes” that
    distinguish civil from criminal cases, and contends that the DiGuilio standard is
    inapplicable in civil cases. Justice Pariente simply comingles and confuses trial
    level burdens of proof and trial level “particular attributes” with appellate
    standards of legal error. The level of a factual burden of proof during trial has
    nothing to do with the standards for appellate legal error. In criticizing the
    majority’s analysis, Justice Pariente has also neglected to consider the deference
    this Court has traditionally afforded the Legislature for policy decisions that have
    been made regarding the harmless error standard. In fact, we specifically
    3. Section 90.104, Florida Statutes (2009), is also applicable to the instant
    case. It addresses rulings on evidence and provides that
    (1) A court may predicate error, set aside or reverse a judgment,
    or grant a new trial on the basis of admitted or excluded evidence
    when a substantial right of the party is adversely affected . . . [and the
    issue is preserved].
    - 48 -
    recognized in DiGuilio that the “authority of the legislature to enact harmless error
    statutes is unquestioned.” 
    491 So. 2d
    at 1134.
    Here, the Legislature has established through section 59.041 the public
    policy that appellate courts shall not reverse trial court judgments “in any cause,
    civil or criminal,” unless the error complained of has resulted in a miscarriage of
    justice. It certainly cannot be disputed that the Legislature was unaware when it
    made this policy decision that the trial level burden of proof differs in civil and
    criminal cases, or that other “particular attributes” differentiate the two types of
    cases. However, because Justice Pariente considers the Legislature’s policy
    determinations to be inconsistent with her view, she basically ignores them
    altogether. Justice Pariente relies upon the “particular attributes” approach to
    conclude that the “more likely than not” standard developed by the Fourth District
    is appropriate in all civil cases. This approach, however, not only disregards our
    holding in DiGuilio that recognized the Legislature retains broad authority to
    regulate the application of harmless error statutes, but also completely ignores the
    plain language of section 59.041. In so doing, Justice Pariente has essentially
    concluded that section 59.041 is irrelevant and should not impact the determination
    of the appellate standard for legal error that should apply in civil cases. While
    Justice Pariente and other lower court judges may not agree with the statutes, it is
    inappropriate for them to suggest that their personal views of the applicable
    - 49 -
    harmless error standard should trump the standard contained in the statutory
    structure. Justice Pariente advances a dual standard for civil and criminal cases
    contrary to the single standard established in the Florida Statutes.
    Additional Harmful Error
    I disagree only with the majority’s determination that the trial court did not
    err when it precluded Special from further exploring and presenting evidence that
    strongly suggested that Baux and West Boca attempted to intimidate the key fact
    witness, medical examiner Dr. Wolf, regarding the Department of Health (DOH)
    complaint. The decision to preclude Dr. Wolf’s testimony on this important
    subject amounted to an abuse of discretion and was not harmless error. With a
    remand for a new trial, I would permit further exploration and development of
    material facts on this issue.
    Standard of Review
    A trial court’s decision to admit evidence is reviewed under the abuse of
    discretion standard. See Braddy v. State, 
    111 So. 3d
    810, 858 (Fla. 2012), cert.
    denied, 
    134 S. Ct. 275
    (2013); Simmons v. State, 
    934 So. 2d 1100
    , 1116 (Fla.
    2006) (“A trial court has wide discretion concerning the admissibility of evidence
    and the range of subjects about which an expert can testify.”). A court’s discretion,
    however, is circumscribed by the rules of evidence, see Johnston v. State, 
    863 So. 2d
    271, 278 (Fla. 2003), and a ruling on the admissibility of evidence will
    - 50 -
    constitute an abuse of discretion if it is based “on an erroneous view of the law or
    on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx
    Corp., 
    496 U.S. 384
    , 405 (1990); Johnson v. State, 
    969 So. 2d 938
    , 949 (Fla.
    2007).
    Here, the precluded testimony concerned whether there had been an extra-
    judicial attempt to intimidate and discredit Dr. Wolf, the medical examiner,
    because she disagreed as to the cause of Susan’s death—the dispositive issue in
    this case. Dr. Wolf, as the governmental expert charged with investigating deaths,
    expressed the opinion that Susan did not die from AFE. Because there is a very
    real and reasonable view that the failure to admit testimony on this issue also
    contributed to the verdict, I disagree with the majority’s conclusion that the
    decision to preclude evidence on this testimony was harmless and not an abuse of
    discretion.
    Analysis
    Florida courts permit evidence of threats or witness intimidation if the
    threats are attributable to the opposing party. See Koon v. State, 
    513 So. 2d 1253
    ,
    1256 (Fla. 1987) (“It has been held that evidence of threats made against witnesses
    is inadmissible to prove guilt unless the threats are shown to be attributable to the
    defendant.” (citing Duke v. State, 
    142 So. 886
    (Fla. 1932); Jones v. State, 
    385 So. 2d
    1042 (Fla. 1st DCA 1980); Coleman v. State, 
    335 So. 2d 364
    (Fla. 4th DCA
    - 51 -
    1976))); see also State v. Price, 
    491 So. 2d
    536, 536-37 (Fla. 1986) (“A third
    person’s attempt to influence a witness is inadmissible on the issue of the
    defendant’s guilt unless the defendant has authorized the third party’s action.”);
    Manuel v. State, 
    524 So. 2d 734
    , 735 (Fla. 1st DCA 1988) (noting that testimony
    concerning witness intimidation is admissible, “provided the attempt was with the
    authority, consent, or knowledge of the defendant”).4 It is admissible because it is
    “evidence of a consciousness of guilt,” see Coronado v. State, 
    654 So. 2d 1267
    ,
    1269 (Fla. 2d DCA 1995),5 and there is nothing more sacred than judicial
    4. In Lynch v. McGovern, 
    270 So. 2d 770
    , 772 (Fla. 4th DCA 1972)
    (quoting Wigmore on Evidence, Vol. 2 (3d ed.), section 278, at 120), the Fourth
    District stated:
    * * * it has always been understood—the inference, indeed, is one of
    the simplest in human experience—that a party’s falsehood or other
    fraud in the preparation and presentation of his cause, his fabrication
    or suppression of evidence by bribery or spoliation, and all similar
    conduct, is receivable against him as an indication of his
    consciousness that his case is a weak or unfounded one; and from that
    consciousness may be inferred the fact itself of the cause’s lack of
    truth and merit (emphasis added).
    5. See also Edward W. Cleary, McCormick on Evidence, § 273, at 660 (2d
    ed. 1972) (footnotes omitted):
    [W]rongdoing by the party in connection with his case, amounting to
    an obstruction of justice[,] is also commonly regarded as an admission
    by conduct. By resorting to wrongful devices he is said to give
    ground for believing that he thinks his case is weak and not to be won
    by fair means. Accordingly, a party’s false statement about the matter
    in litigation, whether before suit or on the stand, his fabrication of
    false documents, his undue pressure, by bribery or intimidation or
    - 52 -
    proceedings that are free from attempts to tamper with or intimidate witnesses.
    Indeed, without a judicial proceeding free of intimidation and threats, there is no
    reason for the fact-finding process. The decision to permit evidence of
    unscrupulous conduct, however, is tempered by those “circumstances where
    testimony concerning third-party threats may . . . be deemed so prejudicial as to
    require its exclusion” despite otherwise being admissible according to the
    evidentiary rules. See Koon, 
    513 So. 2d
    at 1256 (citing Price, 
    491 So. 2d
    at 536).
    In Jost v. Ahmad, the Second District Court of Appeal addressed an
    allegation of witness tampering in a medical malpractice case. 
    730 So. 2d 708
    , 710
    (Fla. 2d DCA 1999). The plaintiff’s treating physician testified that the hospital’s
    insurance carrier contacted the physician’s risk management officer, and the carrier
    attempted to pass along information to the physician suggesting that he should
    remember that his “testimony was to limit collateral damage.” 
    Id. at 709-10.
    The
    trial court denied the plaintiff’s request to question the physician about the
    communication before the jury. 
    Id. at 710.
    The Second District held that the trial
    court reversibly erred by excluding the communication because attempts at witness
    intimidation are “fundamentally unfair and pervert the truth-seeking function.” 
    Id. at 711
    (quoting McCool v. Gehret, 
    657 A.2d 269
    , 276 (Del. 1995)). The same rule
    other means, to influence a witness to testify for him . . . all these are
    instances of this type of admission by conduct.
    - 53 -
    applies here. The district court explained that to determine whether the
    communication should be admitted, the “threshold question [wa]s whether the
    matter is relevant,” which “turns on the meaning of the communication as it could
    be reasonably understood by [the targeted witness].” 
    Id. at 710.
    With this question
    in mind, the Second District concluded that the excluded testimony should have
    been admitted as both impeachment and substantive evidence. See 
    id. at 711.
    Here, during trial, Special asserted that he should be permitted to present
    evidence that individuals, on behalf of Baux and West Boca, attempted to
    intimidate Dr. Wolf into changing her expert opinion that AFE was not the cause
    of Susan’s death. According to Dr. Wolf’s attorney Bill Pincus, Baux’s attorney
    had told him that “the Defendants had hired a ‘nationally-renowned’ expert in the
    field of amniotic fluid embolism (‘AFE’) who had found ‘pervasive evidence’ of
    AFE in the tissue samples taken from the Decedent” and “suggested that Dr. Wolf
    may not want to ‘embarrass herself’ by seeking to defend her earlier conclusions
    (of no evidence of AFE) . . . .” Prior to this conversation, and it is arguable
    although not fully developed “at the request of a defense attorney,” a complaint
    had even been filed with DOH against Dr. Wolf, which jeopardized her medical
    license. Dr. Wolf learned of this complaint immediately prior to her deposition
    with defense counsel, during which she had to discuss and defend her conclusion
    - 54 -
    that AFE was not the cause of Susan’s death. Full evidence concerning this
    attempted intimidation should be disclosed and explored.
    The trial court addressed the alleged intimidation as two separate issues: (1)
    whether sufficient evidence was presented to introduce into evidence the fact that a
    disciplinary proceeding had been filed against Dr. Wolf by DOH; and (2) whether
    individuals had attempted to intimidate Dr. Wolf prior to her deposition. The trial
    court only allowed Special to proffer Dr. Wolf’s testimony on these issues.
    Although the trial court found the testimony addressing witness tampering with
    regard to activities occurring prior to Dr. Wolf’s deposition to be relevant, it ruled
    that testimony on this issue was inadmissible because it constituted double hearsay.
    The trial court also precluded testimony “with respect to the [DOH] investigation .
    . . [because] I don’t believe there’s a sufficient evidentiary nexus to allow us to go
    there [and address witness intimidation] at this point. [Dr. Wolf] doesn’t know
    who filed [the complaint that led to the disciplinary proceeding], and we can
    surmise who may or may not have, but I don’t think we have enough to go there.”
    The trial court’s concern regarding the evidentiary nexus between Dr.
    Wolf’s testimony and the apparent witness intimidation is misplaced. It is clear
    that a third party with the “authority, consent, or knowledge” of Baux, if not West
    Boca as well, attempted to influence Dr. Wolf and alter her testimony. See
    
    Manuel, 524 So. 2d at 735
    . No other persons or party would have been privy to,
    - 55 -
    and interested in, Dr. Wolf’s conclusions regarding the cause of Susan’s death.
    Who else would have asked Dr. Wolf to reconsider her earlier conclusions? Who
    else would have initiated a complaint with DOH against Dr. Wolf? Who else
    would have had a personal interest in her testimony? The answers to these
    questions indicate that the defense or someone working on behalf of the defense
    was responsible for the events that occurred prior to Dr. Wolf’s deposition, and
    that party intended to, and did, exert pressure on Dr. Wolf in an effort to change
    her opinion. In any event, the evidence should be explored and the truth exposed.
    With regard to the dictates of Jost—that the challenged testimony must be
    relevant and the communication reasonably understood by the targeted witness as
    an attempt to intimidate—Special appears to have satisfied this standard. First, in
    its order, the trial court found this testimony to be relevant. Additionally, this
    testimony concerned the key issue in this case—the cause of Susan’s death.
    Second, although Dr. Wolf may have neither changed her testimony nor been
    intimidated, she understood the intent of the events preceding her deposition to be
    an effort to alter her conclusion. Accordingly, the trial court should have stayed
    the proceedings and addressed the problem and allegations of intimidation at the
    time they were brought to the court’s attention. Judicial proceedings must be free
    from improper efforts to intimidate witnesses and, when that issue arises, courts
    must be prepared to respond and react lest we allow justice to be undermined. The
    - 56 -
    trial court’s failure to do so, and thereby ensure that the trial was not tainted by
    extraneous influences, was not a harmless error. The trial court’s failure to admit
    testimony on this issue amounted to an abuse of discretion.
    To the extent that Baux and West Boca allege that this evidence of
    intimidation is too attenuated to be admitted, I note that evidence of this nature
    “need not lead inescapably towards a single conclusion to be relevant, it need only
    make certain facts more probable than not.” See 
    McQueeney, 779 F.2d at 921
    .
    Here, Special provided sufficient support for the trial court to rule the testimony
    admissible and deserving of the jury’s consideration. Consequently, this testimony
    should have been admitted as substantive evidence of Baux and West Boca’s lack
    of faith in their defense that AFE caused Susan’s death. Most certainly, if further
    evidence is available, it must be considered in connection with a new trial.
    Moreover, if in fact these activities were concerted efforts to intimidate Dr.
    Wolf, it is appropriate to conclude that they derived from parties who acted with
    the “authority, consent, or knowledge” of Baux, if not West Boca as well. See
    
    Manuel, 524 So. 2d at 735
    . Neither Baux nor West Boca has provided this Court
    with a reason to conclude that some other person or party would have had a motive
    to harass Dr. Wolf as occurred here. Additionally, because the intimidating parties
    were acting as agents of Baux, the trial court’s hearsay concerns are eliminated.
    Compare 
    Jost, 730 So. 2d at 710
    (permitting admission of communications to the
    - 57 -
    targeted doctor from the defendant’s insurance carrier, which is “akin to a
    communication from [the defendant] . . . [and not akin to] a communications from
    a third party with no direct interest in the outcome of the case”), with Nagel v.
    State, 
    774 So. 2d 835
    , 838 (Fla. 4th DCA 2000) (ruling that a police officer’s
    testimony was inadmissible because the state did not present evidence that the
    contested telephone call “was made with appellant’s authority, consent, or
    knowledge”).
    Based on the relevance of the testimony to both the very core issue of the
    litigation (the AFE diagnosis), and demonstrated efforts to change or silence
    contradictory evidence concerning the cause of Susan’s death, I would conclude
    that the erroneous rulings by the trial court amounted to harmful error. The
    evidence of witness tampering was relevant to the theory of causation espoused
    and should have been admitted as substantive evidence to discredit those involved
    in the efforts. The failure of the trial court to admit this testimony constituted an
    abuse of discretion and this Court should not conclude that there is no reasonable
    possibility that these errors did not affect the deliberations of the jury and its
    determination that Baux and West Boca were not responsible for Susan’s death.
    See DiGuilio, 
    491 So. 2d
    at 1135.
    - 58 -
    In conclusion, I would remand this case for a new trial because without the
    evidence excluded here, the fairness and integrity of this litigation has been
    compromised.
    POLSTON, J., dissenting.
    I agree with Justice Pariente’s dissent from the majority’s decision to adopt
    the same harmless error standard for both the criminal and civil contexts even
    though criminal and civil cases are subject to different burdens of proof. The
    Fourth District Court of Appeal properly 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.” Special v. Baux, M.D., et al., 
    79 So. 3d 755
    , 771 (Fla. 4th DCA 2011).
    I also agree with Justice Pariente’s conclusion that the trial court did not err in
    excluding the pre-deposition comments allegedly made to Dr. Wolf as inadmissible
    hearsay. However, unlike Justice Pariente and the majority, I do not believe that a
    new trial is warranted in this case because the improper restriction of Dr. Dildy’s
    cross-examination testimony was harmless.
    Reviewing the entire record, it is more likely than not that the trial court’s
    restriction of Dr. Dildy’s cross-examination did not contribute to the judgment.
    The proffered cross-examination is cumulative of other evidence actually presented
    to the jury regarding the possibility of overdiagnosis of AFE at West Boca
    because, during Dr. Adelman’s testimony, “Special was able to elicit national
    - 59 -
    statistics showing incidence of AFE diagnosis at West Boca was about 15 times the
    rate elsewhere.” 
    Id. at 757.
    Moreover and importantly, the proffered cross-
    examination would have added very little (if any) support to Special’s position,
    especially considering that Dr. Dildy’s proffered testimony strongly emphasized
    that a possible statistical anomaly in all AFE cases at West Boca would not matter
    here because this case in particular was a case of AFE. As the Fourth District
    explained,
    [t]he ultimate purpose of the proposed cross-examination was to call
    into question the hospital’s AFE diagnosis by suggesting that the
    hospital diagnosed that condition about 15 times more than the rate
    elsewhere. This issue was presented to the jury through the testimony
    of Dr. Adelman and in part from Dr. Dildy. This evidence allowed
    the plaintiff’s attorney in closing argument to hammer on the
    significance of the statistical abnormality. During the proffer of Dr.
    Dildy, he said that if the incidence of AFE at the hospital were
    accurate, he would be concerned that AFE was being over-diagnosed.
    Yet, even when confronted with the statistics documenting this
    possibility, he persisted in his opinion that Susan presented a special
    case of AFE. He testified, “But this case here, we’re talking about, it
    doesn’t matter what all these other cases are, this is this case, and this
    case is an amniotic fluid embolism.”
    
    Id. at 772
    (emphasis added).
    Accordingly, because I disagree with the majority’s adoption and application
    of the criminal harmless error standard in this civil case, I respectfully dissent.
    CANADY, J., concurs.
    Application for Review of the Decision of the District Court of Appeal - Certified
    Great Public Importance
    - 60 -
    Fourth District - Case No. 4D08-2511
    (Palm Beach County)
    Gary Mitchell Cohen and Andrew Bryan Yaffa of Grossman Roth, P.A., Boca
    Raton, Florida, and Philip Mead Burlington and Andrew A. Harris of Burlington &
    Rockenbach, P.A., West Palm Beach, Florida,
    for Petitioners
    Michael Keith Mittelmark, Megan Kathleen Zavoina and Kabir Asrani of
    Michaud, Mittelmark, Marowitz & Asrani, PLLC, Boca Raton, Florida, on behalf
    of West Boca Medical Center; Irene Marie Porter, Mark Hicks, and Shannon Kain
    of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida, and Eugene L. Ciotoli of
    Bobo Ciotoli Bocchino Newman Corsini White & Buigas, P.A., North Palm
    Beach, Florida, on behalf of Ivo Baux, M.D., PA., and Pinnacle Anesthesia, P.L.,
    for Respondents
    - 61 -