Philip Morris USA Inc. v. Michael Jordan Lipp, etc.

Third District Court of Appeal
State of Florida

Opinion filed March 27, 2024.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2214
Lower Tribunal No. 17-18509
________________

Philip Morris USA Inc.,
Appellant,

vs.

Michael Jordan Lipp, etc.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Peter R.
Lopez, Judge.

Arnold & Porter Kaye Scholer LLP, and David M. Menichetti
(Washington, DC); Shook, Hardy & Bacon L.L.P., and Michael Rayfield
and Scott A. Chesin (New York, NY), for appellant.

The Alvarez Law Firm, and Alex Alvarez, Michael Alvarez, Nicholas
Reyes and Philip Holden; David J. Sales, P.A., and David J. Sales
(Sarasota), for appellee.

Before EMAS, GORDO and BOKOR, JJ.
 BOKOR, J.

In this Engle1 progeny case, Philip Morris USA, Inc. (“PM USA”)

appeals from a final judgment entered in favor of Michael Jordan Lipp, as

personal representative of the Estate of Norma K. Lipp, following a jury trial.

We find merit in PM USA’s argument that the trial court erred in admitting

harmful hearsay statements. And we conclude that the beneficiary of these

improper statements can’t prove that the error didn’t contribute to the verdict.

Accordingly, we reverse.

BACKGROUND

For decades, Mrs. Lipp smoked filtered cigarettes, sometimes more

than a pack per day. In 1992, Mrs. Lipp was diagnosed with lung cancer.

She passed away the following year. In 2007, Mrs. Lipp’s son filed the

instant wrongful death lawsuit against PM USA on behalf of his mother’s

estate, asserting claims of strict liability, negligence, fraudulent concealment,

and conspiracy to conceal. The case went to trial in March 2020, but the trial

court declared a mistrial because of the COVID-19 pandemic. The case was

retried in August 2021.

1
Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006)
2
 At trial, the plaintiff called Mrs. Lipp’s sons, A.J. and Michael, as

witnesses. In relaying a conversation with his mother, A.J. testified:

Q. After she had her lung removed, okay, did she ever express
to you that she was upset?
A. Yeah.
Defense counsel: Objection. Hearsay.
....
Court: Overruled.
Q. Did she express it to you after her lung was removed?
Court: Overruled.
A. Okay. Yeah. After her surgery, she was very upset at the
tobacco companies specifically.
Defense Counsel: Objection. Hearsay.
Court: Overruled.
A. Because she 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.
(emphasis added).

Michael also provided the following testimony:

Q. Now, I want to ask you about another conversation you had
with your mom. After she was diagnosed with lung cancer, did
you ever have a conversation with your mom where she
appeared angry to you?
A. Yes.
Q. Okay. Did she tell you at that time why she was feeling angry?

3
 Defense counsel: Objection. Hearsay.
Court: Overruled.
A. So we talked about the trip to California. So we took that trip.
Q. Was this the last vacation the family took with her?
A. Yeah. It was — my mom kind of wanted to go on a last trip as
a family. But I didn’t know it was the last trip. She knew that.
And, you know, my brother, sister, my dad was around. There
was kind of — we were kind of in — I think it’s the hotel room,
just the two of us. We don’t get that much alone time. And we
talked, and she was angry. And she was angry she was dying.
She was angry at the tobacco companies.
Q. Did she tell you why she was angry at the tobacco
companies?
A. She said, “They lied to me.” She said—
Defense counsel: Objection. Hearsay.
Court: Overruled.
A. So she was mad that she was dying. She said, “Cigarette
companies lied to me. I wish I’d never smoked.” And then she
made me promise that I would never smoke.
(emphasis added). The plaintiff's counsel later highlighted the above

statements during closing arguments, telling the jury: “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.” The jury returned a verdict in favor of the

Estate and against PM USA, awarding the former a total of $43 million in

damages—$15 million in compensatory damages and $28 million in punitive

damages. After the trial court denied all of PM USA’s post-trial motions, this

appeal followed.

4
 ANALYSIS
On appeal, PM USA contends, among other things, that the trial court

erred in allowing inadmissible hearsay statements to be introduced. PM USA

maintains that Mrs. Lipp’s statements, presented through A.J. and Michael’s

testimonies, were backward-looking and not offered for the purpose of

showing Mrs. Lipp’s state of mind at the time of the conversation. We agree.

We review the trial court’s rulings on the admissibility of evidence for

an abuse of discretion, but the question of whether a statement is hearsay is

reviewed de novo. Cannon v. State, 180 So. 3d 1023, 1037 (Fla. 2015). 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.” § 90.801(1)(b), Fla. Stat. “However, the same

statement may be admissible to prove a variety of issues besides the truth

of the matter, such as the declarant's state of mind.” Everett v. State, 801

So. 2d 189, 191 (Fla. 4th DCA 2001). A declarant’s state of mind is defined

as follows:

(a) A statement of the declarant’s then-existing state of mind,
emotion, or physical sensation, including a statement of intent,
plan, motive, design, mental feeling, pain, or bodily health, when
such evidence is offered to:
1. Prove 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.
5
 2. Prove or explain acts of subsequent conduct of the declarant.

§ 90.803(3)(a), Fla. Stat. In essence, “statements of the declarant's then-

existing state of mind are admissible to prove or explain the declarant's

subsequent conduct or to prove the declarant's state of mind at the time that

the statement was made or at any other time, but only when such a state is

an issue in the action.” Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67,

75 (Fla. 3d DCA 2013). However, an exception applies for after-the-fact

statements. See § 90.803(3)(b)(1), Fla. Stat. (“[T]his subsection does not

make admissible . . . [a]n after-the-fact statement of memory or belief to

prove the fact remembered or believed . . . .”). In other words, “a hearsay

statement which recounts ‘observations made previously’ is by definition an

‘after-the fact statement of memory’ and expressly excluded from the state

of mind exception.” R.J. Reynolds Tobacco Co. v. Hamilton, 316 So. 3d 338,

342 (Fla. 4th DCA 2021) (quoting in part § 90.803(3)(b)(1), Fla. Stat.). So,

the question becomes, do Mrs. Lipp’s statements constitute state of mind, or

after-the-fact statements of memory, used to show that Mrs. Lipp relied on

the statements from the tobacco companies, and not another source?

In the underlying proceedings, the trial court permitted A.J. to testify,

over contemporaneous objection, that, after Mrs. Lipp’s lung was removed,

she recollected that the tobacco companies represented to her that filtered

6
cigarettes would “filter out the bad stuff and keep her safe.” It further

permitted Michael to testify over objection that, after his mother was

diagnosed with lung cancer in 1992, she told him that the cigarette

companies had previously lied to her. On appeal, PM USA properly

distinguishes Alexander, 123 So. 3d 67, from the instant case. 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. Id. at 71. As the court

concluded in Alexander, 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.” Id.

at 75; see also Philip Morris USA Inc. v. Holliman, 374 So. 3d 87, 93 n.9 (Fla.

3d DCA 2022) (“Holliman's out-of-court statement that ‘cigarettes was [sic]

not bad for you’ was admissible because it was offered to show Holliman's

material state of mind—his belief that smoking was not bad for him—and not

to prove that cigarettes were, indeed, not bad for health.”). Hamilton, 316

So. 3d 338, another case on which PM USA relies, is instructive. There, the

decedent’s statement to her son that she believed filtered cigarettes were

7
safe, because of tobacco companies’ advertising, was not admissible under

the state of mind exception. Id. at 340–42. Our sister court concluded that

said portion of the smoker’s statement didn’t disclose anything about her

state of mind. Instead, “it simply stated a fact: [the decedent] previously

heard filtered cigarettes were safe from advertising and not from some other

source.” Id. at 341. Thus, 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. Accordingly,

like in Hamilton, the statement was offered to prove an issue in the case,

namely, that Mrs. Lipp relied on the tobacco companies’ lies to her detriment.

Unlike Alexander and Holliman, where the statements were offered to

explain the decedents’ beliefs for their continued smoking, here the

statements weren’t offered to establish why Mrs. Lipp currently smoked

filtered cigarettes or her reasoning in continuing to do so. Rather, the

statements were “after-the fact statements of why [Mrs. Lipp] smoked in the

past.” Alexander, 123 So. 3d at 75. In other words, Mrs. Lipp’s statements

weren’t statements that explained her existing state of mind or subsequent

conduct, but statements about beliefs she no longer held concerning alleged

lies, which were told to her in the past. Further, and like Hamilton, Mrs. Lipp’s

8
statements were offered to reinforce that the tobacco companies lied to her

in the past.2

Next, we examine whether the erroneous hearsay statements

constituted harmless error. “Errors in evidentiary rulings in civil cases are

subject to harmless error analysis.” Hamilton, 316 So. 3d at 342. “To test

for harmless error, the beneficiary of the error has the burden to prove that

2
Hamilton explains that the simple fact that the statement may contain a
portion of admissible, state-of-mind testimony doesn’t change its overall
character:

Plaintiff also argues that the statement was admissible because
“most states of mind are going to be based on knowledge gained
and observations made previously.” However, a hearsay
statement which recounts “observations made previously” is by
definition an “after-the fact statement of memory” and expressly
excluded from the state of mind exception. § 90.803(3)(b) 1.,
Fla. Stat. What Plaintiff is attempting to do is “piggyback” an
otherwise inadmissible backward-looking statement onto an
admissible statement. Doing so, however, both ignores and
undermines the rule against hearsay. See Shepard v. United
States, 290 U.S. 96, 105–06, 54 S.Ct. 22, 78 L.Ed. 196 (1933)
(noting that if the distinction between forward looking statements
and backward looking statements is ignored, “[t]here would be
an end, or nearly that, to the rule against hearsay”); Reed v.
State, 438 So. 2d 169, 172 (Fla. 1st DCA 1983) (Ervin, C.J.,
specially concurring) (“The reason for excluding after-the-fact
statements of memory is that ‘[i]f these statements were admitted
it would be easy for any individual to manufacture evidence to
prove facts that had occurred in the past.’ ” (quoting Charles W.
Ehrhardt, 1 Fla. Prac., Evidence § 803.3B (1977))).

Hamilton, 316 So. 3d at 342.
9
the error complained of did not contribute to the verdict.” Special v. W. Boca

Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). “[T]he 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.”

Mesa v. Citizens Prop. Ins. Corp., 358 So. 3d 452, 457 (Fla. 3d DCA 2023)

(quoting Special, 160 So. 3d at 1256).

Here, the central theory to the plaintiff’s case 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 re-

iterated during closing arguments: “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.” Considering the inadmissible hearsay statements from

both testimonies and the re-introduction of Mrs. Lipp’s statements during

closing argument, we cannot conclude that the error didn’t contribute to the

verdict. See Hamilton, 316 So. 3d at 342–43 (“[C]onsidering the strong

evidentiary value of Mrs. Hamilton's statement, it cannot be said there is no

reasonable possibility that the error contributed to the verdict.”). For the

10
foregoing reasons, we hold that the trial court reversibly erred in admitting

the inadmissible hearsay statements. 3 We therefore reverse and remand for

a new trial.

Reversed and remanded.

GORDO, J. concurs.

3
Because we conclude that the hearsay statements provide a basis for
reversal and new trial, we need not address the additional issues of jury
selection and the punitive damages award.
11
 Philip Morris USA Inc. v. Michael Jordan Lipp
Case No. 3D21-2214
GORDO, J., concurring.

The right to a fair and impartial jury trial is fundamental to our

constitutional republic. Appellate courts have a duty to preserve inviolate

this right and respect the jury’s verdict—so long as it is rightfully rendered.

See Shoma Coral Gables, LLC v. Gables Inv. Holdings, LLC, 48 Fla. L.

Weekly D1454 (Fla. 3d DCA July 26, 2023) (Gordo, J., concurring) (“In

Florida, where cases are properly submitted to a jury for a determination of

competing facts—judges do not—and cannot, act as the seventh juror and

override that finding unless no proper view of the evidence could sustain the

jury’s verdict.”); Salazar v. Gomez, 317 So. 3d 170, 174 (Fla. 3d DCA 2021)

(“[W]here the court heard no new evidence other than what was known prior

to trial and presented to the jury, where the moving party sought no relief

prior to or during trial and where the alleged inconsistencies were subject to

impeachment, cross-examination and jury deliberation, we are constrained

to conclude the trial court abused its discretion in overturning the verdict and

dismissing the case.”).

But here, the impact of the inadmissible hearsay statements on this

verdict cannot be ignored. The plaintiff built his case around the claim that

the defendant deceived Mrs. Lipp into believing that filtered cigarettes were

12
safer, and he was able to advance this theory not through a “snippet” of

cumulative testimony as the dissent posits, but through lengthy and highly

prejudicial inadmissible hearsay statements made by two separate

witnesses—Mrs. Lipp’s sons. Knowing that this testimony could evoke

sympathy in the minds of the jurors, experienced trial lawyers used 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. The

latter exchange, set in the hotel room on this fateful vacation, spotlighted

some of the last shared moments between the plaintiff and his mother.

These same lawyers later highlighted this inflammatory testimony during

closing argument, specifically emphasizing Mrs. Lipp’s indignant anger and

blame towards the defendant. While the dissent makes a valiant attempt to

minimize the improper hearsay to a “few lines of testimony” and “one

sentence” during closing argument, it is inescapable that this testimony—

and the harmful mental images it created—became a focus of the trial and

was clearly and repeatedly used by counsel to inflame the jury. See R.J.

Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674, 683 (Fla. 1st DCA

13
2017) (reversing for a new trial “[o]n such a record, so replete with improper

arguments and comments clearly intended to stir the passions of the jury”).

But see Nolley v. State, 237 So. 3d 469, 476 (Fla. 1st DCA 2018) (finding

the error did not rise to the level of fundamental error because “[t]he

erroneous testimony was brief” and “did not become the focus of the trial”).

Our caselaw is clear that where there is error, the proponent of the

error must dispel all notions that the error contributed to the verdict. See

Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (“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.”). It is clear to me from the tone and

tenor of this improper testimony, the impassioned closing argument and this

verdict being the largest ever awarded in any similar tobacco case in the

country—that the plaintiff has not carried his burden of proving that this error

did not contribute to the verdict. See Samuels v. Torres, 29 So. 3d 1193,

1196 (Fla. 5th DCA 2010) (“No citation of authority is necessary for the well-

established principle that all parties are entitled to a fair trial. To that end,

the law imposes upon a jury the duty to impartially determine the facts and

decide the issues in each case based on the evidence presented and the

14
applicable law. Fidelity to that duty prohibits a jury from being swayed by

sympathy for any party when rendering its verdict. A soft heart infused with

pity proclaims sympathy, not facts based on evidence, and there are no rules

of law that guide its direction.”) (footnote omitted) (emphasis added); Murphy

v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (recognizing the

prejudicial effect of statements that “inflame the minds and passions of the

jurors” (quoting Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985)));

Chambers v. State, 924 So. 2d 975, 978-79 (Fla. 2d DCA 2006) (recognizing

that inflammatory statements that invoked the “sympathy or anger of the jury”

may have improperly “influenced the jury to reach a more severe verdict than

it would have otherwise rendered”).

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. See R.J. Reynolds Tobacco Co. v. Calloway,

201 So. 3d 753, 765 (Fla. 4th DCA 2016) (cautioning counsel to be vigilant

in crafting arguments that fall within the confines of permissibility and stating

that “[a]ttorneys who engage in such [improper] tactics in the future do so at

their own peril, and the peril of their clients, by risking the reversal of their

cases on appeal”).

15
 Philip Morris USA Inc. v. Lipp
3D21-2214

EMAS, J., dissenting.

Although I agree with the majority’s determination that a portion of

Michael and A.J. Lipp’s testimony regarding statements made by their

mother may have constituted hearsay, see Maj. Op. at *8, I dissent because

this snippet of testimony was cumulative to other, substantial and admissible

testimony introduced on the exact same issue. There is 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.

Accordingly, we must affirm.

The Harmless Error Test

The jury’s verdict in a civil action should be affirmed on appeal where

the admission of testimony, though erroneous, constitutes harmless error.

Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014). Although the

harmless error test was first applied only to criminal appeals, see State v.

DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986) (applying the harmless error rule

to affirm a criminal conviction for conspiracy to traffic in cocaine,

notwithstanding the prosecution’s improper questioning and elicitation of

testimony regarding the defendant’s invocation of his right to remain silent

16
during police questioning), the Florida Supreme Court in 2014 adopted the

DiGuilio harmless error test for civil appeals as well:

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.

Special, 160 So. 3d at 1256.

The harmless error test generally applies even to errors of a

constitutional magnitude, 4 and in the criminal context the test is intended to

“preserve[] the accused's constitutional right to a fair trial by requiring the

state to show beyond a reasonable doubt that the specific comment(s) did

4
See, e.g., State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986) (noting that
“constitutional errors, with rare exceptions, are subject to harmless error
analysis,” and applying the harmless error rule to affirm a criminal conviction
for conspiracy to traffic in cocaine, notwithstanding the prosecution’s
improper questioning and elicitation of testimony regarding the defendant’s
invocation of his right to remain silent during police questioning); Goodwin v.
State, 751 So. 2d 537, 540 (Fla. 1999) (“[B]efore a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)).
17
not contribute to the verdict. At the same time, it preserves the public and

state interest in finality of verdicts which are free of any harmful error.”

DiGuilio, 491 So. 2d at 1136. The same can be said when applying the

harmless error rule on appellate review of verdicts in civil cases. As the

Court noted in Special, 160 So. 3d at 1257:

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.

Factors to Consider in Assessing Harmless Error

In applying the harmless error test, we must consider the entire record,

not in a vacuum, but in the context in which the testimony was introduced.

We must also consider whether the erroneously admitted testimony is

cumulative to other evidence properly presented, and the relevance of the

erroneously admitted testimony to the disputed issues at trial. See, e.g.,

Special, 160 So. 3d at 1256 (“[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

18
impermissible evidence which might have possibly influenced the jury

verdict.”) (quoting DiGuilio, 491 So. 2d at 1135).

As applied to the instant case, it is clear that the erroneously admitted

evidence is merely cumulative to the other substantial and admissible

testimony introduced at trial on the same question, and could not reasonably

have had any impact on the disputed issues at trial. Under such

circumstances, we must affirm. See, e.g., Sutton v. State, 909 So. 2d 292

(Fla. 3d DCA 2004) (affirming murder conviction and holding that trial court’s

errors—admitting hearsay testimony regarding defendant’s change in

appearance shortly following the murder, and then permitting prosecutor to

argue in closing that this improper testimony evidenced defendant’s

consciousness of guilt—was harmless error, in light of the fact it was

cumulative to other testimony regarding defendant’s change in appearance,

other evidence of consciousness of guilt, and given that defendant’s main

defense was alibi); Andrews v. Tew By and Through Tew, 512 So. 2d 276

(Fla. 2d DCA 1987) (reversing order granting new trial, and holding that, even

if admission of the expert’s testimony was error, the error was harmless given

that it was “merely cumulative” of other testimony presented during the trial);

Rodgers v. State, 948 So. 2d 655 (Fla. 2006) (affirming sentence of death

for first-degree murder, and holding that trial court’s violation of defendant’s

19
constitutional right of confrontation under Crawford v. Washington, 541 U.S.

36 (2004), was harmless, given that the evidence erroneously admitted was

merely cumulative to, and corroborative of, other evidence admitted at trial);

Kaczmar v. State, 104 So. 3d 990 (Fla. 2012) (affirming first-degree murder

conviction and sentence of death, and holding that violation of spousal

privilege—by which trial court permitted defendant’s wife to testify to

communications in which the defendant asked her to get $300 to use in

framing defendant's friend for the murder—was harmless beyond a

reasonable doubt because this improperly admitted testimony was merely

cumulative to other admissible testimony by the wife, relating to her own

actions as opposed to communications with the defendant).

The Engle Findings, the Stipulated Facts, and the Evidence
Presented on the Issues in Dispute

It is worth noting that the trial in this case lasted more than two weeks,

resulting in a transcript of more than 3,600 pages. 5 In addition, once it was

established that Norma Lipp was a member of the Engle class,6 Plaintiff was

5
In fact, this trial was the second trial of this case; the first two-week trial
resulted in a mistrial due to the COVID-19 pandemic. Thus, a reversal of the
jury verdict in this case would mean the Lipp family would endure a third trial
in the case against Philip Morris for the death of their wife and mother, a
death that was admittedly caused by her smoking of the company’s product.
6
As the trial court instructed the jury, in order to establish Norma Lipp was a
member of the Engle class, Plaintiff had to prove “prove by the greater weight
of the evidence that Norma Lipp was addicted to cigarettes containing
20
entitled to rely on, and the jury was required to accept, certain preclusive

Engle findings. As such, the trial court delivered the following instruction to

the jury:

If you find that Norma Lipp was a member of the "Engle" class,
the following "Engle" findings must be applied in this case.

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.

(Emphasis added).

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.

nicotine and, if so, that such addiction was a legal cause of her lung cancer
and death.” See Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
21
 Additionally, the parties stipulated to certain facts, further narrowing

the disputed issues at trial. For example, the jury was instructed:

Members of the jury, the parties have agreed to certain facts. You
must accept these facts as true. There is no dispute that the
decedent, Norma Lipp, had lung cancer. There is no dispute in
this case that the cigarettes Ms. Lipp smoked, including the
cigarettes manufactured by Philip Morris USA Incorporated,
were the medical cause of her lung cancer and death.

(Emphasis added).

At trial, 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, 7 that Philip Morris knew

this from its own research, but, nonetheless, told the public that filtered

cigarettes were safer. Plaintiff’s expert, Dr. Proctor, testified that Philip

Morris knew smokers were switching to filtered cigarettes because they

thought they were safe—that this was in fact the entire point of marketing

7
Dr. Proctor testified at trial that the illusion that filtered cigarettes are safer
is “entirely fake. . . . They’re not even filters . . in any sense of the word. . . .
[and] cancer rates kept going up even after filters.”
22
filtered cigarettes beginning in 1954. Dr. Proctor gave specific examples

culled from Philip Morris documents, including an internal memo that

specifically showed Philip Morris “knew that the so-called high filtration

cigarettes were no different.” Dr. Proctor testified that Philip Morris’ head of

research, in a 1961 internal document, reported that “present technology

does not permit selective filtration of particulate smoke.” Nevertheless, in a

letter to the United States Surgeon General two years later, Philip Morris

reported that cigarettes were not dangerous and also, that “it is possible, of

course, to modify the chemical composition of cigarette smoke by the use of

filters.” These documents were admitted into evidence at trial and submitted

to the jury for its consideration on the issue of whether Philip Morris marketed

their filtered cigarettes as “safer” while knowing the opposite was true.

The Erroneously Admitted Testimony

It is in this context—considering the stipulated facts and preclusive

Engle findings, as well as substantial evidence of Philip Morris’ knowledge

and conduct—that we review the testimony which the majority relies upon to

reverse the jury verdict in this two-week trial. It consists of a few lines of

testimony from Norma’s two sons, A.J. and Michael, and one sentence by

Plaintiff’s counsel during closing.

Specifically, Norma’s son A.J. testified:

23
 Q. After she had her lung removed, okay, did she ever
express to you that she was upset?
...

A. Okay. Yeah. After her surgery, she was very upset at
the tobacco companies specifically.
...

A. Because she 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.

(Emphasis added to highlight the objectionable portion raised by Philip

Morris on appeal.)

Norma’s other son, Michael, testified that after his mother was

diagnosed with lung cancer, she told him why she was angry at the cigarette

companies:

Q. Did she tell you why she was angry at the tobacco
companies?

A. She said, “They lied to me.” She said—

Defense counsel: Objection. Hearsay.

Court: Overruled.

A. So she was mad that she was dying. She said,
“Cigarette companies lied to me. I wish I’d never
smoked.” And then she made me promise that I would
never smoke.

24
(Emphasis added to highlight the objectionable portion raised by Philip

Morris on appeal).

Plaintiff's counsel later referred to the above testimony during closing

arguments, telling the jury: “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.” (Emphasis added.)

This is the testimony and comment by counsel relied upon by the

majority to reverse the jury’s verdict. And although this testimony is hearsay

because of when Norma made these statements to her sons, see §

90.803(3)((b), Fla. Stat. (2021) (while statements are admissible to prove

one’s then-existing state of mind, “[a]n after-the-fact statement of memory or

belief to prove the fact remembered or believed” is inadmissible), this

hearsay testimony, in the context of the other testimony and evidence

presented to the jury, was at most cumulative. This point is most clearly

established by the nearly identical (and unobjected to) testimony presented

to the jury through Norma’s sons and husband.

Nearly Identical Testimony Was Properly Presented to the Jury,
Rendering the Erroneously Admitted Testimony Cumulative

The evidentiary impediment to the admissibility of the above-described

testimony of Norma’s sons, A.J. and Michael, was a temporal one. Norma’s

statements, as testified to by A.J. and Michael, were hearsay only because
25
she made them after she had already quit (or nearly quit) smoking, and

therefore her state of mind at that point in time was not relevant to the issues

in dispute. Norma’s out-of-court statements were admissible to prove her

then-existing state of mind, but only “when such a state is at issue in the

action.” § 90.803(3)(b), Fla. Stat. (2021). This is, of course, a somewhat

nuanced evidentiary distinction, but nevertheless a valid basis to

characterize the above-described testimony of A.J. and Michael as hearsay.

And if this was the only evidence presented to the jury to prove Norma’s state

of mind about why she was continuing to smoke cigarettes, I would be

joining, rather than dissenting from, the majority opinion.

However, this testimony was not the only evidence presented by

Plaintiff to the jury on this issue of why Norma continued to smoke cigarettes.

Indeed, several witnesses testified at trial that Norma told them (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.

For example:

26
 Norma’s two sons, A.J. and Michael, each testified that Norma told

them, at a time when she was still smoking cigarettes, that she did so

because the filtered cigarettes she was smoking were safer. A.J. testified

that he asked his mother about this after he heard in high school that

smoking could be bad for her: “When I told her, she said, AJ, I only smoke

cigarettes that have filters. . . . She said that she continued to smoke because

she only smoked cigarettes that had filters, and she makes sure that she . .

. only smokes filtered cigarettes, and that the filters will filter out the bad stuff

and keep her safe.” Similarly, Michael testified that his mother told him he

needn’t worry about her continuing to smoke because she believed filtered

cigarettes were safe.

Norma’s husband, Jules, testified that his wife Norma “believed that

what she read in the magazines or she showed me the articles showing that

there was no proof that cigarette smoking caused cancer. And . . . she would

show me the advertisements showing that the filters in cigarettes would take

out the bad stuff.”

Jules also testified (without objection) that when Norma was diagnosed

with cancer and while she was still smoking, she learned that these

advertisements—showing that the filters would “take out the bad stuff”—

were not true, and that she was upset when she found this out because “she

27
believed the magazine articles that said that smoking – there’s no proof that

smoking caused cancer, and also that the filters in cigarettes would take out

the bad stuff.” Jules also testified that Norma told him that, had she known

earlier, “[s]he never would have become addicted.”

This properly presented testimony, taken together with the preclusive

Engle findings, the pretrial stipulations, and the substantial expert testimony

presented by Plaintiff to show Philip Morris lied to and deceived Norma about

the safety of filtered cigarettes, rendered the fragments of inadmissible

hearsay, relied upon by the majority for reversal, merely cumulative.

As the Florida Supreme Court recognized, the test first announced for

criminal appeals in DiGuilio, and later adopted for civil appeals in Special,

“will foster consistency in appellate courts’ analyses of harmless error.”

Special, 160 So. 3d at 1257. Consistent analysis and application of the

harmless error test to the instant case leads inescapably to one conclusion:

there is no reasonable possibility the cumulative testimony admitted at trial

contributed to the verdict in this case, and thus the erroneous admission of

that testimony was harmless beyond a reasonable doubt. Special, 160 So.

3d at 1254-55 (“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’”)

28
(quoting DiGuilio, 491 So. 2d at 1135); Torres-Arboledo v. State, 524 So. 2d

403, 408 (Fla. 1988) (holding that where improperly admitted hearsay

testimony is merely cumulative to other properly admitted testimony, the

admission of the hearsay testimony was harmless beyond a reasonable

doubt and did not warrant a new trial); Floyd v. State, 850 So. 2d 383 (Fla.

2002) (same); Casica v. State, 24 So. 3d 1236 (Fla. 4th DCA 2009) (same);

Miles v. State, 839 So. 2d 814 (Fla. 4th DCA 2003) (same). 8

I therefore would affirm the jury’s verdict and the final judgment, and

must respectfully dissent.

8
Though not contained in the majority’s analysis, to the extent that counsel’s
reiteration in closing that “they lied to me” might somehow be viewed as
independently improper, it must be remembered that the jury was called
upon to determine by its verdict whether Plaintiff had proven, by clear and
convincing evidence, entitlement to punitive damages and, if so, in what
amount. See R.J. Reynolds Tobacco Co. v. Schleider, 273 So. 3d 63, 68
(Fla. 3d DCA 2018) (“Arguments inappropriate in a simple negligence case
may be appropriate concerning record evidence of a party's intentional
misconduct in the context of a claim for punitive damages. To give an
obvious example, it is generally reversible error in a simple tort case seeking
compensatory damages to ask a jury to ‘send a message’ and punish or
penalize the defendant. See, e.g., Erie Ins. Co. v. Bushy, 394 So.2d 228,
229 (Fla. 5th DCA 1981). Here, however, the jury was instructed to consider
whether R.J. Reynolds committed intentional misconduct, meaning
‘Reynolds had actual knowledge of the wrong of the conduct and the high
probability that injury would result and, despite that knowledge intentionally
pursued that course of conduct,’ in which event the jury was directed to
consider the propriety of punitive damages ‘as a punishment to Reynolds
and as a deterrent to others.’”)
29