HEARSAY “STATE OF MIND” EXCEPTION DOES NOT COVER BACKWARD-LOOKING RELIANCE STATEMENTS; HARMFUL ERROR TEST APPLIED STRICTLY IN ENGLE PROGENY TRIAL

Philip Morris USA Inc. v. Lipp, 50 Fla. L. Weekly D2365 (Fla. 3d DCA Oct. 29, 2025):

The personal representative of a smoker’s estate obtained a $43 million verdict against Philip Morris after a retrial, including $28 million in punitive damages. The decedent’s sons were allowed to testify over repeated hearsay objections, that after their mother’s lung was removed and after her cancer diagnosis, she was angry at the tobacco companies saying that “they lied to me,” that she believed filtered cigarettes would keep her safe, and that she wished she had never smoked. Plaintiff’s counsel emphasized those statements in closing to demonstrate that the decedent had personally relied on the companies’ misrepresentations about filtered cigarettes.

The Third District held those statements were inadmissible hearsay. It rejected the plaintiff’s argument that the testimony fit the “then existing state of mind” exception in section 90.803(3)(a), pointing out the statutory limitation in section 90.803(3)(b). That section states that after-the-fact statements of memory or belief are not admissible to prove the fact remembered or believed. Evidence comes in if the statement expresses a then-existing state of mind, emotion, or physical sensation and is offered to prove that present state or to explain subsequent conduct when state of mind is actually at issue. It is not admissible if it recounts past events or prior reliance to prove those earlier facts.

The court explained that the sons’ testimony was not about why their mother was currently smoking, but about why she smoked in the past and how she later felt once the truth about filtered cigarettes was revealed. Those were classic backward-looking memory statements offered to prove past reliance and causation and thus fell squarely within the statutory exclusion in section 90.803(3)(b).

Applying the Special v. West Boca Medical Center test for harmless error, the court reiterated that the beneficiary of an error has the burden to prove there is no reasonable possibility that the error contributed to the verdict. The focus is on the effect of the error on the factfinder, not just whether there was ample other evidence to support the result. The Third District emphasized that even cumulative-seeming evidence can be harmful if it has unique evidentiary or emotional impact.

Here, the improperly admitted statements went directly to the key disputed element of fraudulent concealment and conspiracy and were repeatedly delivered in highly emotional contexts (post-surgery, “last trip” with a dying mother). Counsel framed them “powerfully” in closing argument, leading to the jury’s consideration of punitive damages, and rendering the error harmful.