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Florida Fourth DCA rules that Surgeon Generals' Reports on dangers of tobacco use were hearsay not admissible as public records or as adoptive admissions by defendant tobacco company

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