Philip Morris USA, Inc. v. Pollari

228 So.3d 115

PHILIP MORRIS USA, INC., and R.J. Reynolds Tobacco Company, Appellants,

v.Rose POLLARI, as Personal Representative of the Estate of Paul Pollari, Appellee.

No. 4D16–334

District Court of Appeal of Florida, Fourth District.

[August 30, 2017]

Joseph H. Lang, Jr., of Carlton Fields Jorden Burt, P.A., Tampa, Lauren R. Goldman and Michael Rayfield of Mayer Brown LLP, New York, NY, for appellant/cross-appellee Philip Morris USA, Inc.

William L. Durham II, Val Leppert and Philip Green of King & Spalding LLP, Atlanta, GA, for appellant/cross-appellee R.J. Reynolds Tobacco Company.

Courtney Brewer and John S. Mills of The Mills Firm, P.A., Tallahassee, for appellee/cross-appellant.

Klingensmith, J.

Philip Morris USA, Inc. ("PM") and R.J. Reynolds Tobacco Co. ("RJR") (collectively, "Defendants") appeal the final judgment of an Engle¹ progeny case in favor of Rose Pollari ("Plaintiff"), as personal representative of the estate of her deceased husband, Paul Pollari. Though the parties raise numerous issues on appeal and cross-appeal,² we write only to address Defendants' argument that the trial court erred by admitting into evidence several Surgeon General's Reports on cigarettes (the "Reports"). On that issue, we agree and reverse.

Before trial, Defendants moved to exclude from evidence as inadmissible hearsay "Surgeon Generals' reports ... that have been published in the last 20 years," including the Reports from 2010, 2012, and 2014. Plaintiff did not dispute the Reports were hearsay, but argued they were admissible under the exceptions for public records and adoptive admissions. The trial court denied Defendants' motion, clearing the way for their later admission into evidence.

At trial, Plaintiff's counsel endorsed the Surgeon General as a leading medical authority "on cigarette smoking and health and nicotine addiction." Wide-ranging excerpts from the 2010, 2012, and 2014 Reports were admitted as evidence and made available to the jury during deliberations. The record is clear that Plaintiff's counsel relied on these Reports at every major stage of the trial for numerous propositions, and read various portions during opening statements, the presentation of expert witness testimony, and closing arguments.

In response to Defendants' appeal, Plaintiff makes three arguments to support the admissibility of the Reports: (1) the Reports were not hearsay because they were not offered for the truth of the matters asserted, but only to show notice; (2) the Reports qualified under the public records exception to hearsay; and (3) the Reports qualified as adoptive admissions by Defendants under an exception to hearsay. After careful consideration, this court has determined that each of these arguments lack merit, and the Reports should not have been admitted into evidence at trial.

"A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion," Jones v. State, 127 So.3d 622, 624 (Fla. 4th DCA 2013), but legal questions of whether evidence "falls within the statutory definition of hearsay," or "is admissible in evidence under an exception to the hearsay rule" are reviewed de novo. Smith v. State, 186 So.3d 1056, 1060 (Fla. 4th DCA 2016) (quoting Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014) ).

A. THE SURGEON GENERAL REPORTS WERE HEARSAY

In her answer brief, Plaintiff suggests the Reports were not hearsay because they were not offered to prove the truth of the matters asserted therein. This argument lacks merit.

Under the Florida Evidence Code, " ‘[h]earsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2015). Hearsay statements are "inadmissible at trial except as specifically provide[d] by statute." Reynolds v. State, 934 So.2d 1128, 1139 (Fla. 2006) ; see also § 90.802, Fla. Stat. (2015). Such statements can only be admitted into evidence if "offered in strict compliance with the requirements" of a statutory exception to the hearsay rule. Yisrael v. State, 993 So.2d 952, 957 (Fla. 2008). As the party introducing the Reports, Plaintiff had the burden to show that the Reports were not hearsay or were subject to a statutory exception. Id. at 956.

The Reports were hearsay because they consisted of multiple levels of out-of-court statements by several declarants who did not testify at trial, and were offered to prove their truth. § 90.801(1)(a), Fla. Stat. (2015). The trial transcript shows that at all stages of the trial, Plaintiff made various factual declarations by directly citing content from the Reports. Any assertion that they were not used at trial as proof of the truth of various statements in the Reports is belied by the record.

B. THE REPORTS WERE INADMISSIBLE AS PUBLIC RECORDS

An exception to the general rule prohibiting the admission of hearsay evidence allows for the admission of certain categories of public records and reports. Under this exception, a court can admit:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, ... unless the sources of information or other circumstances show their lack of trustworthiness.

§ 90.803(8), Fla. Stat. (2015) ; see also Lee v. Dep't of Health & Rehab. Servs., 698 So.2d 1194, 1201 (Fla. 1997) (stating that "[u]nder this provision, two types of public records and reports are admissible into evidence: (1) records setting forth ‘the activities of the office or agency’; and (2) records of a public office or agency which set forth ‘matters observed pursuant to duty imposed by law as to which matters there was a duty to report’ " (quoting Charles W. Ehrhardt, Florida Evidence§ 803.8 (1996 ed.))). Again, "[i]f evidence is to be admitted under one of the exceptions to the hearsay rule, it must be offered in strict compliance with the requirements of the particular exception." Coates v. State, 217 So.3d 1048, 1050 (Fla. 4th DCA 2017) (quoting Yisrael, 993 So.2d at 957 )).

The Reports do not fall under the first category of the exception because they were not records or reports of "the activities" of the Surgeon General's Office or other government agency. As this court has previously explained, "[t]he exception for ‘the activities of the office or agency’ is generally understood to include factual reports focused on the essential functions of the office or agency." Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076, 1082 (Fla. 4th DCA 2012). To meet this exception, proffered documents may do no more than "simply set forth the activities of the government agency." Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So.3d 897, 900 (Fla. 5th DCA 2012). The types of records or reports admissible under this category include such things as "records showing the receipts and disbursements of a governmental department or official reports of a statistical nature." Benjamin, 93 So.3d at 1082 (listing cases where such examples qualified).

In Benjamin, this court deemed admissible a Food and Drug Administration ("FDA") advisory that was "an official report providing information of a statistical nature regarding certain medications" as public "records setting forth the activities of the office or agency" since "[i]t set[ ] forth the activities of the agency pursuant to the FDA's statutory duty to take appropriate action to ensure drug safety." Id. at 1083. This is markedly distinguishable from the instant case because the Reports at issue here contained more than just statistics insofar as they "rel[ied] on information supplied by outside [non-government] sources," and "contain[ed] evaluations or statements of opinion by a public official." Lee, 698 So.2d at 1201.

In line with our decision in Benjamin, other cases have also established that the first category of the exception, known as the "activities" category, is intended to encompass only those public records of a factual nature involving the core functions of a government agency, not advocacy reports or compilations and reviews of outside research or contributions. Compare Darragh, 95 So.3d at 900 (holding that printouts of government website allowing users to estimate potential military benefits based upon users' assumptions about the future were inadmissible under section 90.803(8), as they "d[id] not simply set forth the activities of a government agency"), with Gatlin v. State, 618 So.2d 765, 766 (Fla. 2d DCA 1993) (finding that state's affidavit detailing costs of prosecution fell within first category of the public records exception).

The Reports also do not fall within the second category of the public records exception, as they were not "based upon a public official's first-hand observation of an event." Yisrael, 993 So.2d at 959. The Office of the Surgeon General of the United States reports on the health effects of smoking cigarettes on a biennial basis. Compiled with input by various members of the scientific and academic community, the Reports are collections of statements and opinions by numerous authors. Because the majority of the Reports' contributors and editors were not public officials, the Reports at best could be said to represent a collaborative effort by both government and non-government persons. That said, no public official, including the Surgeon General, had personal knowledge of the information provided in the Reports. Likewise, most if not all the Reports' authors did not directly observe the testing of the tobacco products referenced or the other matters covered, and instead relied on surveys of relevant literature to draw conclusions therefrom. Hence, there is no basis to conclude that any of the Reports' non-government contributors directly observed the matters that were the subjects of the Reports, or much less had a "duty to...