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A divided appeals court Wednesday overturned a $43 million verdict against the cigarette maker Philip Morris USA Inc. in a lawsuit involving the death of a longtime smoker.
A panel of the 3rd District Court of Appeal, in a 2-1 decision, said the trial included improper hearsay testimony from sons of the late smoker, Norma K. Lipp. The panel ordered a new trial.
The majority decision said Lipp smoked filtered cigarettes for decades, was diagnosed with lung cancer in 1992 and died a year later. Her son, Michael, as representative of her estate, later filed a wrongful death lawsuit against Philip Morris.
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The case was one of thousands of what are known as “Engle progeny” lawsuits, which stem from a 2006 Florida Supreme Court ruling that established critical findings about the health dangers of smoking and misrepresentation by cigarette makers.
A jury sided with Lipp’s estate and awarded $15 million in compensatory damages and $28 million in punitive damages. But Wednesday’s majority decision agreed with Philip Morris’ position that hearsay testimony by Lipp’s sons, Michael and A.J., was improperly admitted in the trial and used in a closing argument.
The decision, written by Judge Alexander Bokor and joined by Judge Monica Gordo, said the improper testimony was about Norma Lipp expressing anger over tobacco-industry deceptions about the safety of filtered cigarettes.
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“Here, the central theory to the plaintiff’s case was that tobacco companies deceived Mrs. Lipp into believing that smoking filtered cigarettes was safer than smoking non-filtered cigarettes,” Bokor wrote. “The plaintiff advanced this theory through the testimonies of Mrs. Lipp’s two sons, and primarily through Mrs. Lipp’s hearsay statement that the tobacco companies lied to her.”
But Judge Kevin Emas dissented, arguing that the hearsay statements were only one part of the case.
Emas wrote that it is “clear that the erroneously admitted evidence is merely cumulative to the other substantial and admissible testimony introduced at trial on the same question, and could not reasonably have had any impact on the disputed issues at trial.”
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