Florida’s Third District Court of Appeal has reversed an award of $43 million in damages and remanded for a new trial a lawsuit filed against cigarette maker Philip Morris USA Inc.
The plaintiffs in the case, the relatives of a 55-year-old smoker who died from lung cancer, argued Philip Morris was at fault for Norma K. Lipp’s diagnosis and, later, her death.
The Third District, in its Oct. 29 decision, held that the Miami-Dade County Circuit Court “reversibly erred” in admitting inadmissible hearsay statements.
Judge Alexander Bokor wrote the 21-page decision. Judge Monica Gordo concurred. Judge Kevin Emas dissented.
“Context matters,” Bokor wrote. “Because of the emotional appeal of these backwards-looking hearsay statements, grounded in such tragic circumstances, Lipp cannot demonstrate no ‘reasonable possibility’ that the hearsay statements did not ‘contribute to the verdict.’”
According to the ruling, Lipp smoked filtered cigarettes, sometimes more than a pack per day. In 1992, she was diagnosed with lung cancer and died the following year.
In 2007, Lipp’s son filed a wrongful death lawsuit against Philip Morris on behalf of his mother’s estate. He asserted 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.
At trial, the estate called Lipp’s sons, A.J. and Michael, as witnesses. The estate’s counsel highlighted their 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 for the estate and against Philip Morris, awarding the estate 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 Philip Morris’ post-trial motions, the company filed its appeal with the Third District.
The cigarette maker argued on appeal, among other things, that the trial court erred in allowing inadmissible hearsay statements to be introduced.
Philip Morris maintains that Lipp’s statements, presented through A.J. and Michael’s testimonies, were “backward-looking” and not offered for the purpose of showing her state of mind at the time of the conversation.
The appeals court determined that the challenged statements constitute impermissible hearsay. It also found that the estate – as the beneficiary of the statements – failed to demonstrate harmless error.
“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 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,” Bokor wrote. “Both statements from the two sons contained testimony that goes to a central issue of the case – Mrs. Lipp’s reliance on the tobacco companies’ lies regarding the safety of filtered cigarettes.”
The appeals court explained that the challenged statements from Lipp’s sons weren’t offered to establish why Lipp currently smoked filtered cigarettes or her reasoning in continuing to do so.
“By the time she made those statements, she had quit smoking,” Bokor noted. “Rather, the statements were ‘after-the-fact statements of why [Mrs. Lipp] smoked in the past.’”
In the appeals court’s decision, Bokor said it “rings true” that a person might blame her cancer diagnosis and surgery on the lies of a tobacco company after those lies are publicly revealed.
“It may ring less true to a jury that she would offer nearly spontaneous professions of faith in those lies to her family before the lies are exposed and before her cancer diagnosis and surgery (the permissible, unobjected-to present sense expression statements),” he wrote, noting that “this isn’t to say that the jury wouldn’t have come to the same verdict without the hearsay statements.”
But the hearsay statements also had a different narrative resonance, Bokor pointed out.
“Because of the trial court’s error in admitting this hearsay, the movant introduced emotionally charged imagery about Mrs. Lipp’s recollections and thoughts, not at the time she was smoking, but in her hospital bed after both her cancer diagnosis and surgery and during one final trip with her beloved sons,” he wrote.
“There is nothing cumulative about that portion of the testimony, and the beneficiary of the error can’t show the absence of at least a ‘reasonable possibility’ that the emotional appeal of such impermissible and inflammatory statements didn’t contribute to the verdict, including the punitive damages award.”
The case stems from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against tobacco companies.
The state Supreme Court later decertified the class, but allowed Engle progeny cases to be tried individually.
Arnold & Porter Kaye Scholer LLP and Shook Hardy & Bacon LLP are among the firms representing Philip Morris. The Alvarez Law Firm is representing Lipp’s estate.
