In Special v. Baux, et al (4D08-2511), the Fourth District released an en banc opinion regarding the harmless error test in civil actions. The en banc court stated:
In considering that issue, we take up this case en banc to reconsider other decisions of this court describing the harmless error test in civil cases. We hold that our cases using an outcome determinative, “but-for” test for harmless error are contrary to the Florida Supreme Court’s interpretation of the harmless error statute. We recede from those cases and adopt the following standard for harmless error in civil cases: To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.
The opinion was written by Judge Gross and Chief Judge May, Judge Warner, Judge Polen, Judge Stevenson, Judge Taylor and Judge Ciklin concurred. Judge Damoorgian concurred specially with an opinion in which Chief Judge May Concurred. Judge Conner concurred in result only in an opinion in which Judge Levine concurred. Judge Hazouri and Judge Gerber were recused.
The court also certified the following question to the Florida Supreme Court as one of great public importance:
In A Civil Appeal, Shall Error Be Held Harmless Where It Is Mort Likely Than Not That The Error Did Not Contribute To The Judgment?