On August 30, 2017, in
Phillip Morris USA v. Pollari, No. 4D16-334, the Florida Fourth DCA reversed a final judgment against
the tobacco defendant following trial, finding that various Surgeon Generals’
Reports addressing the dangers of tobacco use that were introduced into
evidence by the plaintiff constituted inadmissible hearsay evidence and
resulted in prejudicial error. On appeal, the plaintiff argued (1) that
the reports were not hearsay because they were not offered for the truth
of the matters asserted, but only to show notice to the defendant; (2)
the reports qualified under the public records exception to hearsay; and
(3) the reports qualified as adoptive admissions. The Fourth DCA rejected
all three arguments. The Fourth DCA noted that the trial transcript showed
that at all stages of the trial the plaintiff made various factual declarations
by directly citing content from the reports, thereby undercutting the
“notice” argument. The Court additionally noted that the public
records exception to the Florida hearsay rule has not been held to encompass
advocacy reports or compilations and reviews of outside research or contributions.
Finally, the Court concluded that the reports could not qualify as adoptive
admissions simply because the defendant had hyperlinked to them on its
website, because this did not constitute an express manifestation of an
adoption or belief in the statements and opinions contained in the reports
