TRIAL COURT ERRED IN ADMITTING HARMFUL HEARSAY TESTIMONY FROM THE DECEDENT’S SONS IN A TOBACCO TRIAL

Philip Morris v. Jordan, 49 Fla. L. Weekly D670 (Fla. 3rd DCA Mar. 27, 2024):

The decedent’s children filed a wrongful death suit after she died from lung cancer. During trial and over objection, one of the sons relayed a conversation he had had with his mother, where she expressed how angry and upset she was with the defendant tobacco company. As he relayed, she was upset because the company had long represented that smoking filtered cigarettes would filter out the” bad stuff” and keep her safe. The son also testified that she was angry both because the tobacco company had lied to her, and because she was dying.

On appeal, the defendant asserted those statements were inadmissible hearsay, because they were backward-looking, and not offered for the purpose of showing the decedent’s state of mind.

Section 90.803(3)(a) says that statements of a 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 at issue in the action. There is an exception for after-the-fact statements, but only if those statements recount observations made previously.

The court explained that the statements made here were not offered to establish why the decedent was smoking filtered cigarettes or her reasoning for continuing to do so. Instead, they were “after-the-fact” statements about why she had smoked in the past; not statements to explain her existing state of mind or subsequent conduct.

After finding that the statements were impermissible hearsay, the court then concluded that the error in admitting them was not harmless. The test for harmless error requires that the beneficiary of the error prove that there is no reasonable possibility that the error complained of did not contribute to the verdict.

In this case, where the central theory was that the tobacco companies deceived the plaintiff into believing that smoking filtered cigarettes was safer than smoking non-filtered cigarettes, made the hearsay statement central to the plaintiff’s case (reiterated in closing arguments) and the plaintiff could not show that there was no reasonable possibility that the testimony did not contribute to the verdict.