The Third District Court of Appeal in Florida reversed and remanded a $43 million jury verdict against the tobacco giant Phillip Morris in a wrongful death and strict liability case brought by the estate of one, Norma K. Lipp, who had died of lung cancer after smoking PM USA’s filtered cigarettes for years.  The appellate court held that certain hearsay testimony was wrongfully admitted at trial.


Norma K. Lipp, a long-term smoker of PM USA’s filtered cigarettes, was diagnosed with lung cancer in 1992 and succumbed to the disease a year later. Her estate filed a wrongful death lawsuit alleging that PM USA’s fraudulent actions contributed to her death. 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.

Throughout the trial, key testimonies came from Norma Lipp’s sons, who shared their mother’s experiences and her belief in the misleading advertisements by PM USA. These advertisements claimed that filtered cigarettes were safer, a belief that Norma Lipp held until her diagnosis.

The jury returned a verdict in favor of the Estate and against PM USA, awarding $3.75 million in compensatory damages each to the husband and three children of Lipp as well as $28 million in punitive damages. The jury also found that Lipp was 15 percent responsible for her own injuries.

The Appeal

On appeal, PM USA contended that the trial court erred in allowing inadmissible hearsay statements to be introduced. PM USA maintained that Mrs. Lipp’s statements, presented through the testimonies of her two sons, A.J. and Michael, were backward-looking and not offered for the purpose of showing Mrs. Lipp’s state of mind at the time of the conversation.

The court reiterated that hearsay is defined as a statement made outside the court, presented as evidence to prove the truth of the matter asserted in the statement. The critical issue was whether the statements recounted by A.J. and Michael Lipp, regarding their mother’s beliefs and statements about the safety of filtered cigarettes, were admissible.

The court discussed the exception to hearsay rules that allows for the admissibility of a declarant’s then-existing state of mind, emotion, or physical sensation, including statements of intent, motive, or plan, when such evidence is offered to:

  • Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
  • Prove or explain acts or conduct of the declarant.

The appellate court found that the testimonies presented by the plaintiff’s sons were not admissible under the state of mind exception. The court determined these statements were backward-looking and aimed at proving facts remembered or believed (i.e., that the tobacco companies lied about the safety of filtered cigarettes), rather than demonstrating Norma Lipp’s state of mind at the time of the conversations.

The court differentiated between statements that express a then-existing state of mind, which are admissible, and after-the-fact statements of memory or belief intended to prove the fact remembered or believed, which are not admissible under the state of mind exception.

The Court concluded that the admission of these hearsay statements was erroneous and could not be considered harmless. The court emphasized that these inadmissible statements played a significant role in the jury’s decision-making process, leading to the reversal of the trial court’s judgment and the order for a new trial.

Dissenting Opinion by Judge Emas

Judge EMAS argued that the hearsay testimony identified by the majority as grounds for reversal was, in fact, cumulative to other substantial and admissible testimony presented at trial on the same issues. Therefore, he believed there was no reasonable possibility that the hearsay testimony contributed to the jury’s verdict, rendering any error in its admission harmless beyond a reasonable doubt.

The dissent highlighted the principle that a jury’s verdict should be affirmed on appeal if the admission of testimony, though erroneous, constitutes harmless error. Emphasizing the entirety of the trial record, Judge Emas opined that the error identified by the majority did not influence the jury’s decision, given the extensive admissible evidence supporting the plaintiff’s claims.

Emas also underscored the preclusive Engle findings and pretrial stipulations, which already established critical facts regarding the harmful effects of smoking and the deceptive practices of Philip Morris. According to the judge, these established facts, alongside the legitimate and unrebutted testimonies, diminished the significance of the hearsay statements in question. He also stressed upon the context in which the hearsay testimony was introduced, noting that similar, non-objectionable testimonies were provided by other witnesses, which were not hearsay and supported the plaintiff’s case.

The case will now be remanded for a third trial by jury.