Philip Morris USA Inc. v. Lipp
3d DCA, 3/27/24
No. 3D21-2214, 2024 WL 1289644
Judge Bokor
Topics: Hearsay
Quick Take: A 2-1 panel reversed a judgment for the estate of a deceased smoker against tobacco company Philip Morris based on a hearsay violation. At trial, the deceased smoker’s son told the jury that his mother, the decedent, was “upset at the tobacco companies because they told her that filtered cigarettes – that filters would filter out the bad stuff and keep her safe and she knew once she got lung cancer and had her lung removed that the filter didn't keep her safe and didn't filter out the bad stuff” and that tobacco companies “lied to me.”
While statements of then-existing state of mind are admissible as a hearsay exception, statements after the fact about your recollections are not, so the statements were inadmissible hearsay. The majority found, without much analysis, that Plaintiff failed to show that the admission of the statements was harmless error. In dissent, Judge Emas agreed that the statements were improperly admitted, but pointed out reams of evidence that made the statements cumulative and harmless.
Full Take: The estate of a woman who was diagnosed with lung cancer in 1992 and died in 1993 sued Philip Morris USA, the tobacco company, in 2007 for strict liability, negligence, fraudulent concealment, and conspiracy to conceal.
At trial, over a hearsay objection, the deceased smoker’s son told the jury that his mother, the decedent, was “upset at the tobacco companies because they told her that filtered cigarettes – that filters would filter out the bad stuff and keep her safe and she knew once she got lung cancer and had her lung removed that the filter didn't keep her safe and didn't filter out the bad stuff.” In discussing a final family trip with his mother, he testified that she told him that she was angry at the tobacco companies because they “lied to me.”
The jury awarded $15 million in compensatory damages and $28 million in punitive damages.
On appeal, the issue is whether the trial court reversibly erred in admitting the son’s statements. A hearsay statement is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” But statements can be admissible to prove a variety of issues besides the truth of the matter, such as the declarant's state of mind.
The “declarant’s then-existing state of mind” hearsay exception applies where the statement regards the declarant’s state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health. Those statements can be admitted to prove (1) the declarant's state of mind, emotion, or physical sensation at that time or any other time when such state is an issue in the action; or to (2) prove or explain acts of subsequent conduct of the declarant. It has to describe the state of mind at the time the statement was made, though.
The exception does not allow “after-the-fact statements” of memory or belief to prove the fact remembered or believed.
The DCA distinguished Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67, 75 (Fla. 3d DCA 2013). There, the decedent's wife testified that she tried to persuade the decedent to stop smoking, and up until 1985, the decedent told her he believed filtered cigarettes were safe and that he did not believe the tobacco companies would make a product that would kill people. Those statements were not only material to the key issue in the case concerning the decedent's reliance on the tobacco industry, but also conveyed his subjective beliefs, which “were offered to prove his subsequent conduct and to explain his continued conduct of smoking.” Here, while Mrs. Lipp being mad may have been a state of mind, the statement wasn't offered for that purpose. The purpose was to show that the tobacco companies, and not some other source, lied to Mrs. Lipp and that she relied on that lie to continue smoking. The DCA saw this as evidence offered to prove an issue in the case, namely, that Mrs. Lipp relied on the tobacco companies’ lies to her detriment.
The court determined that the error was not harmless because the estate, as the beneficiary of the error, could not meet its burden to prove that the error complained of did not contribute to the verdict.
Here, the Plaintiff’s theory was that tobacco companies deceived Mrs. Lipp into believing that smoking filtered cigarettes was safer than smoking non-filtered cigarettes. The plaintiff advanced this theory through the testimonies of Mrs. Lipp's two sons, and primarily through Mrs. Lipp's hearsay statement that the tobacco companies lied to her. The centrality of this hearsay statement to the plaintiff's case was further reiterated during closing arguments. REVERSED AND REMANDED for new trial.
JUDGE GORDO concurred specially, using his concurrence mostly to go after Plaintiff’s lawyers, as it makes no other legal points aside from stating that admission of the hearsay statement could not meet the harmless error test. Judge Gordo wrote that the Plaintiff made its case “through lengthy and highly prejudicial inadmissible hearsay statements made by two separate witnesses—Mrs. Lipp's sons.” Judge Gordo condemned the “experienced trial lawyers” for using “these improper and highly prejudicial statements to paint a detailed picture—one that graphically illustrated two independent, emotional conversations between a dying mother and her loving sons. Each of these conversations took place in a tragic setting—one after the devastating removal of Mrs. Lipp's lung, the other on what would be the family's final trip together.” He opined that the statements “became a focus of the trial and [were] clearly and repeatedly used by counsel to inflame the jury.”
JUDGE EMAS DISSENTED. He agreed that the statements were hearsay, but he would have found the error to be harmless. He thought that the testimony was cumulative to other “substantial and admissible testimony introduced on the exact same issue,” so there was no reasonable possibility that the hearsay testimony contributed to the jury's verdict. Judge Emas notes that it was in 2014 that the Supreme Court of Florida, in Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014), extended the DiGuilio harmless error test for criminal appeals to civil cases as well. Judge Emas noted that the trial lasted two weeks, and the transcript was more than 3,000 pages.
This was an Engle progeny tobacco case, meaning that Plaintiff was entitled to rely on, and the jury was required to accept, certain preclusive Engle findings, including the following: smoking cigarettes causes lung cancer; nicotine in cigarettes is addictive; Philip Morris placed cigarettes on the market that were defective and unreasonably dangerous; Philip Morris was negligent; Philip Morris concealed or omitted material information not otherwise known or available, knowing that the material was false and misleading, or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both; Philip Morris entered into an agreement to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.
The judge instructed the jurors that they could not deny or question these findings, and that these findings carry the same weight as if the jurors had reached these determinations on their own. The parties also stipulated that the decedent had lung cancer, died of lung cancer, and that cigarettes manufactured by Defendant caused her lung cancer.
Plaintiff presented substantial and largely unrebutted evidence that Philip Morris engaged in a campaign to make smokers believe that cigarettes weren't injurious to their health, and that the production and sale of filtered cigarettes was a part of the plan to reassure smokers by fooling them into believing that filtered cigarettes would be cleaner and safer. Plaintiff provided expert testimony and other evidence that in fact filtered cigarettes were no safer than unfiltered cigarettes, that Philip Morris knew this from its own research, but, nonetheless, told the public that filtered cigarettes were safer. Plaintiff's expert testified that Philip Morris knew smokers were switching to filtered cigarettes because they thought they were safe and that this was the entire point of marketing filtered cigarettes beginning in 1954. Internal memos introduced at trial showed this.
Judge Emas agreed that the statements in question weren’t admissible. But the testimony was not the only evidence presented by Plaintiff to the jury on this issue of why Norma continued to smoke cigarettes. Several witnesses testified at trial that Norma told the—at a time when she was still smoking cigarettes—that the reason she continued to smoke was because she believed the filtered cigarettes were safer, and that her belief was based on what she had been told by the cigarette companies. This testimony was not hearsay, and was properly admitted in order to establish Norma's then-existing state of mind, rather than an after-the-fact statement of memory or belief to prove the fact remembered or believed. She believed that what she read in magazines or articles showing that there was no proof that cigarette smoking caused cancer and that the filters in cigarettes would take out the “bad stuff.” She learned during her cancer treatment that this was untrue, and she expressed anger contemporaneously, not just after the fact. The Engle facts, the stipulations, and this testimony made the hearsay cumulative, so it could have had no reasonable effect on the verdict. He would have affirmed. (NOTE: Working only with the information in the majority and dissent, it appears that Philip Morri’s only victory here is going to be paying the costs and fees of a second trial in addition to whatever damages the second jury imposes. Sometimes winning a battle is not the best strategy).