A state appellate court reversed a multimillion-dollar verdict in a wrongful death case against a tobacco company. Florida’s Third District Court of Appeal held that the trial court erroneously admitted hearsay evidence about the decedent’s belief that filtered cigarettes were safe. In doing so, the appellate court addressed the admissibility of hearsay testimony and detailed when out-of-court statements qualify as “present sense” impressions. ABA Litigation Section leaders caution that attorneys must determine whether it is worth the risk to use hearsay statements at trial.
Morris v. Lipp involved a wrongful death action against Philip Morris USA Inc. It was filed on behalf of a woman who died of lung cancer following years of tobacco use. The suit asserted claims of strict liability, negligence, fraudulent concealment, and conspiracy to conceal.
During the trial, the decedent’s sons provided testimony recounting conversations with their mother. One of the decedent’s sons testified about his mother’s anger towards tobacco companies for misleading her about the safety of filtered cigarettes. According to the son, several times, the decedent said things like “Cigarette companies lied to me. I wish I’d never smoked.”
The defense objected to the statements as hearsay, but the trial court overruled the objection. During closing argument, the plaintiff’s counsel repeated the “alleged” hearsay statements. Counsel emphasized: “She was angry when she found out that she was lied to. She believed them, that filters were going to keep her safe, that it was safer.”
After a three-week trial, the jury delivered a verdict for the plaintiff for $43 million—$15 million in compensatory damages and $28 million in punitive damages.
Philip Morris appealed, focusing on the hearsay statements. The appellant argued that the statements, presented through the sons’ testimonies, were not “present sense impressions” but were backward-looking. And the statements were not offered to show the decedent’s state of mind at the time of the conversations. Thus, the appellant argued the hearsay statements were improperly admitted, and they significantly influenced the jury’s decision.
The appellate court agreed, citing case law to delineate the boundaries of hearsay and its exceptions. The court distinguished between admissible forward-looking statements that explain “the declarant’s subsequent conduct” or “prove the declarant’s state of mind at the time that the statement was made” and inadmissible backward-looking statements of memory intended to prove past facts.
The appellate court summarized the issue, explaining that the relevant question was: do the decedent’s “statements constitute state of mind, or after-the-fact statements of memory, used to show” that the decedent “relied on the statements from the tobacco companies, and not another source?”
Ultimately, the court concluded that the hearsay statements concerned why the decedent smoked in the past. “The purpose was to show that the tobacco companies, and not some other source, lied to” the decedent “and that she relied on that lie to continue smoking,” the court explained. In other words, her statements did not explain her existing state of mind or future conduct but represented beliefs that she held which were later considered false.
Although the court did not offer a bright-line rule when statements like these would result in reversal, it found that inadmissible hearsay statements made by the decedent’s sons and reiterated during closing arguments influenced the jury’s verdict. This led the court to conclude that the hearsay statements were not harmless errors. In the court’s view, the statements created “harmful mental images” that contributed to the verdict.
Considering this finding, the court reversed and remanded for a new trial. “While the consequence is unfortunate, parties proceed at their own peril when they choose to overstep and inject sympathy and prejudice into the minds of jurors, particularly in a case where legitimate and obvious sentiments may already exist,” the court counseled.
The dissent disagreed. According to the dissent, although the statements may have been hearsay, “this snippet of testimony was cumulative to other, substantial and admissible testimony introduced on the exact same issue.” Such testimony also covered whether Phillip Morris deceived the decedent into thinking that filtered cigarettes were safe.
In the dissent’s view, there was “no reasonable possibility that the hearsay testimony contributed to the jury’s verdict, and thus any error in its admission was harmless beyond a reasonable doubt.”
Litigation Section leaders’ opinions vary on whether they agree with the majority or the dissent. The hearsay statement was “presented in the most sympathetic inflammatory way it could be,” comments Josh Johanningmeier, Milwaukee, WI, Co-Chair of the Section’s Products Liability Litigation Committee. “If you have hearsay at trial, you need a really solid exception. Because if it is accepted by the court over objection, you’re putting your verdict at risk,” adds Johanningmeier.
“As a litigator, you’ve got to try to win the trial,” remarks Clifford F. Kinney, Charleston, WV, Co-Chair of the Section’s Products Liability Litigation Committee. “You do your best to protect yourself for appeal, but you can’t let that drive your efforts to try and win at the trial court level,” Kinney advises.
