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Florida Fourth DCA reverses $10 million judgment for plaintiff in Engle-progeny tobacco case, finding that trial court erred in admitting decedent smoker’s hearsay statement that she had heard “from the advertising” that filtered cigarettes were safe

On February 10. 2021, in R.J. Reynolds Tobacco Company v. Hamilton, No. 4D19-2699, the Florida Fourth DCA reversed a $10.6 million judgment for the plaintiff in a Engle-progeny tobacco case and remanded the care for a new trial after concluding that the trial court committed reversible error in admitting the decedent smoker’s out-of-court statementthat if her husband was going to smoke, he should smoke filtered cigarettes because they were “safe” based on information she got from advertisements. The plaintiff successfully argued at trial that the statement was admissible under the state of mind exception to the hearsay rule, Fla. Stat. § 90.803(3)(a), Fla. Stat., citing Lorillard Tobacco Co. v. Alexander, 123 So. 3d 67 (Fla. 3d DCA 2013). The Fourth DCA disagreed, noting that while the portion of the decedent’s statement that filtered cigarettes were safe was admissible as that statement was not offered to prove the truth of the matter asserted—that filtered cigarettes were in fact safe—but rather to show Mrs. Hamilton’s then-existing state of mind, the portion of her statement that she heard filtered cigarettes were safe “from the advertising” did not disclose anything about her state of mind and was not admissible under the state of mind exception. The Fourth DCA noted that the hearsay statement recounted observations made previously and was therefore an “after-the fact statement of memory” and expressly excluded from the state of mind exception. The Fourth DCA concluded that the error was not harmless because the statement constituted the strongest piece of evidence that the decedent had detrimentally relied on an act or statement made in furtherance of RJR’s agreement to conceal or omit material information concerning the health effects or addictive nature of cigarettes.