PHILIP MORRIS USA, INC., and R.J. REYNOLDS TOBACCO COMPANY, Appellants,
ROSE POLLARI, as Personal Representative of the Estate of PAUL POLLARI, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge;
L.T. Case No. 14001563 CA (19) and 08-80000 (19).
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,
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.
Morris USA, Inc. ("PM") and R.J. Reynolds Tobacco
Co. ("RJR") (collectively, "Defendants")
appeal the final judgment of an Engle 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,
 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.
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
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
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.
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)).
SURGEON GENERAL REPORTS WERE HEARSAY
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.
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.
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.
REPORTS WERE INADMISSIBLE AS PUBLIC RECORDS
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
§ 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
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).
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] ...