PHILIP MORRIS USA INC., and R.J. REYNOLDS TOBACCO CO. v. ROSE POLLARI, etc
228 So. 3d 115
Fla. Dist. Ct. App. 6th2017Background
- Paul Pollari (decedent) estate sued Philip Morris USA and R.J. Reynolds (Defendants) in an Engle-progeny tobacco wrongful-death/products-liability trial; jury returned a verdict for Plaintiff and judgment followed.
- Defendants moved pretrial to exclude Surgeon General Reports (2010, 2012, 2014) as hearsay; trial court denied the motion and the Reports were admitted and provided to the jury.
- Plaintiff repeatedly relied on excerpts from the Reports throughout opening, expert testimony, and closing; one expert (Dr. Proctor) was an editor of the 2014 Report and cited it on redirect.
- Defendants objected below and argued on appeal that the Reports were inadmissible hearsay not covered by public-records or adoptive-admission exceptions, and that use of the Reports improperly bolstered expert opinion.
- The Fourth District reviewed hearsay/exceptions de novo and concluded the Reports were hearsay, not admissible under Florida’s public-records exception or as adoptive admissions, and that use to bolster the expert was improper.
- The court found the admission and use of the Reports prejudicial (not harmless) and reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility: Were Surgeon General Reports hearsay? | Pollari: Reports were offered for notice, not truth, so not hearsay. | Defendants: Reports are out-of-court statements offered for their truth; they are hearsay. | Held: Reports are hearsay; used to prove factual propositions and therefore offered for truth. |
| Public-records exception (§90.803(8)) | Pollari: Reports qualify as public records/reports by Surgeon General. | Defendants: Reports compile outside sources/opinions and are not records of agency activities or first-hand observations. | Held: Reports do not fit Florida’s two categories (activities or matters observed) and are inadmissible under state public-records exception. |
| Adoptive admission (§90.803(18)(b)) — did defendants adopt Reports by linking/endorsing? | Pollari: Defendants’ websites linked to and told consumers to rely on Surgeon General, amounting to adoption. | Defendants: Hyperlinks and guidance are not assent; websites contained explicit disclaimers disclaiming endorsement. | Held: Mere linking or urging consumers to rely on Surgeon General does not manifest adoption; disclaimers rebut any adoption—no adoptive admission. |
| Bolstering expert testimony with Reports | Pollari: Used Report to counter impeachment and support expert. | Defendants: Use of Reports improperly bolstered expert and introduced extra-judicial opinions not subject to cross-exam. | Held: Impermissible bolstering—expert (an editor of Report) relied on substantive Report content on redirect; error requiring new trial. |
Key Cases Cited
- Engle v. Liggett Grp., 945 So.2d 1246 (Fla. 2006) (framework for Engle-progeny personal-injury tobacco cases)
- Lee v. Dep’t of Health & Rehab. Servs., 698 So.2d 1194 (Fla. 1997) (Florida public-records exception excludes records relying on outside sources or opinions)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (party introducing hearsay bears burden to show compliance with exceptions)
- Philip Morris, Inc. v. Janoff, 901 So.2d 141 (Fla. 3d DCA 2004) (expert testimony impermissibly bolstered by citing authoritative publications)
- Donshik v. Sherman, 861 So.2d 53 (Fla. 3d DCA 2003) (improper use of published study to bolster expert requires new trial)
- Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014) (appellate harmless-error standard for evidentiary errors)