Philip Morris USA Inc. v. Michael Jordan Lipp, as personal representative of the Estate of Norma K. Lipp

Summary

The Florida Third District Court of Appeal withdraws and replaces its prior opinion, denies rehearing, and reverses a $43 million judgment in an Engle progeny wrongful-death action against Philip Morris USA. The court holds that testimony recounting the decedent’s statements that tobacco companies lied to her constituted inadmissible after-the-fact hearsay rather than statements admissible under the state-of-mind exception. It further concludes that the Estate failed to establish harmless error and remands for a new trial.

Holdings

1. The testimony recounting Norma Lipp's statements after she had quit smoking, been diagnosed with lung cancer, and undergone lung-removal surgery constituted impermissible after-the-fact statements of memory or belief, not admissible statements of her then-existing state of mind.
2. The Estate failed to prove that there was no reasonable possibility that the erroneously admitted hearsay contributed to the verdict.

Questions Presented

1. Whether testimony recounting Norma Lipp's post-diagnosis and post-surgery statements that tobacco companies had lied to her and that filtered cigarettes were safe was inadmissible hearsay under the state-of-mind exception.
2. Whether the erroneous admission of the hearsay statements was harmless under Florida's civil harmless-error standard.
3. Whether the hearsay error required reversal and a new trial.

Disposition

reversed_and_remanded