PHILIP MORRIS USA INC., and R.J. REYNOLDS TOBACCO CO. v. ROSE POLLARI, etc

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
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
[August 30, 2017]
Appeal 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).
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 Engle 1 progeny
case in favor of Rose Pollari (“Plaintiff”), as personal representative of the
estate of her deceased husband, Paul Pollari. Though the parties raise
1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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
2 Defendants argue the preclusive application of the Engle findings to Plaintiff’s
case violated due process principles, and that federal law impliedly preempted
Plaintiff’s strict liability and negligence claims that relied on the Engle findings.
As Defendants concede, precedent clearly rejects these arguments. See R.J.
Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 596–605 (Fla. 2017); Philip
Morris USA Inc. v. Douglas, 110 So. 3d 419, 436 (Fla. 2013); Philip Morris USA Inc.
v. McKeever, 207 So. 3d 907, 907 (Fla. 4th DCA 2017). On cross-appeal, Plaintiff
asserts the trial court should not have reduced the initially awarded amount of
compensatory damages based on the jury’s allocation of comparative fault, as the
jury found Defendants liable for intentional torts. Plaintiff acknowledges that
this court’s holding in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487, 496
(Fla. 4th DCA 2015), rev. granted, No. SC15-2233, 2016 WL 3127698 (Fla. May
26, 2016), required the damages reduction since the substance of the action was
“a products liability suit based on conduct grounded in negligence.” See also R.J.
Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221, 227 (Fla. 4th DCA 2017).
These issues are moot because we are remanding this matter for a new trial.
2
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.
3
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
4
“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
report” such observations (as the statute requires). See § 90.803(8), Fla.
Stat.; Yisrael, 993 So. 2d at 959.
5
The Lee case is dispositive of this issue. There, a party used as evidence
an investigative report prepared by a government employee containing
“statements of witnesses as well as [the employee’s] opinions and
conclusions.” 698 So. 2d at 1197. The Florida Supreme Court found that
this report was inadmissible “under the public record and reports
exception to the hearsay rule.” Id. at 1200. After addressing the two
categories of the public records exception, the court explained that “[i]n
adopting this exception, Florida specifically excluded a third type of record
that is admissible under the corresponding federal rule: that is, a record
setting forth factual findings resulting from an investigation made
pursuant to authority granted by law.” 698 So. 2d at 1201 (internal quotes
and citation omitted). The court explained that, consequent to that
specific exclusion, records relying “on information supplied by outside
sources or that contain evaluations or statements of opinion by a public
official are inadmissible,” and determined the government investigative
report was inadmissible under the “matters observed” category of Florida’s
public records exception due to its reliance on statements of non-
government witnesses. Id.; see also Carter v. State, 951 So. 2d 939, 943
(Fla. 4th DCA 2007) (holding that police report containing victim affidavit
was not admissible under public records exception); Reichenberg v. Davis,
846 So. 2d 1233, 1234 (Fla. 5th DCA 2003) (holding that agency reports
of government investigations containing witness interviews were not
admissible under public records exception because statements in reports
were not based upon personal knowledge of government agent).
This case also draws parallels with Wetherill v. University of Chicago,
518 F. Supp. 1387, 1390–91 (N.D. Ill. 1981). In Wetherill, the court
deemed untrustworthy a report about the effects of a drug published by
what is now the Department of Health and Human Services and prepared
by an “ad hoc task force” of government professionals and “a large group
of consultants” consisting of “both doctors and non-professionals, several
of whom were active in organized efforts to expose the allegedly harmful
effects of [the drug].” Id. Like the Surgeon General’s legal authority to
issue the Reports here, the creation of the ad hoc report in that case
derived from the Surgeon General’s statutory authority. Id. at 1388.
Nonetheless, the court held the report was inadmissible for numerous
reasons, including untrustworthiness. Id. at 1389–91. While several
factors independently contributed to the report’s lack of trustworthiness,
the court was “particularly troubled by the presence of interested parties
on the consulting staff” who had been “actively involved” in litigation
related to the drug. Id. at 1390–91. The Reports at issue here are similar
to the report deemed inadmissible in the Wetherill case, as they were not
6
the product of a “neutral fact-finding investigation.” 3 Id. at 1391. For that
reason, our supreme court has cautioned that “in appropriate cases, both
the business- and public-records exceptions are subject to
‘trustworthiness’ exclusions (i.e., if the records — despite their otherwise
admissible status — show a lack of trustworthiness, courts may deem the
records inadmissible).” Yisrael, 993 So. 2d at 961.
The Surgeon General’s Reports clearly fit only under that third category
found in the Federal Rules as records relying on information supplied by
outside sources and gathered during an investigation. Lee, 698 So. 2d at
1201. The United States Court of Appeals for the Eighth Circuit in Boerner
v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600 (8th Cir. 2005),
reached that same conclusion when it affirmed a district court’s admission
of several Surgeon General Reports on smoking as public records falling
under that third category. The Eighth Circuit concluded that even though
the reports included factual findings “made by independent scientists and
not on the basis of independent research by the Surgeon General,” they
were admissible because they were prepared by “a disinterested
governmental agency” pursuant to a legal obligation “to report new and
current information on smoking and health to the U.S. Congress.” Id. at
600–01 (citation omitted). However, as the Lee opinion instructs, while
such records may be admissible under the rules of the federal court
system, they are clearly inadmissible under the Florida Evidence Code.
698 So. 2d at 1201.
Therefore, given the inapplicability of the “activities” category to these
Reports, this court finds that they do not fall within either category of
Florida’s public records exception to hearsay. Likewise, the Reports were
also inadmissible under the “matters observed” category of the public
records exception because they were compilations of studies, research and
conclusions of various non-governmental authorities. Charles W.
Ehrhardt, Florida Evidence § 803.8 (2017 ed.) (“When the information in
the record is based on the personal knowledge of a person who is not a
public official or employee, it is not admissible under 90.803(8).”).
3 The Reports are part scientific, part policy statement, and part public health
advocacy. For example, in addition to reporting the results of scientific study in
the field, the 2014 Report included a chapter titled “A Vision for Ending the
Tobacco Epidemic,” which stated that “[t]his nation must create a society free of
tobacco-related death and disease.”
7
C. THE REPORTS WERE INADMISSIBLE AS ADOPTIVE ADMISSIONS
Here, we consider Plaintiff’s contention that third-party statements
incorporated not by the direct use of selected quotations but by hyperlink
to an entire document is sufficiently adoptive to permit an opposing party’s
use of quotes from that document as admissions under section
90.803(18)(b), Florida Statutes (2015). In arguing for the admission of the
Reports, Plaintiff cited portions of PM’s website that directed visitors to be
“guided by” the Surgeon General’s messages, stated that PM “support[s] a
single, consistent public health message on the role of smoking in the
development of disease in smokers, and on smoking and addiction,” and
provided a link to the Reports. Along the same lines, Plaintiff noted RJR’s
website also provided links to the Reports and stated that RJR “believes
that individuals should rely on conclusions of the U.S. Surgeon General
. . . when making decisions regarding smoking.”
In light of these statements and links, the crux of Plaintiff’s argument
is that Defendants effectively adopted the statements to which their
websites provided links. In essence, Plaintiff asks us to accept the
proposition that linking to third-party web content, thereby acting as a
conduit to that information, evinces an endorsement or agreement with
every statement and bit of information contained therein. On this record,
we decline to do so.
Section 90.803(18)(b) defines an adoptive admission as “[a] statement
that is offered against a party . . . of which the party has manifested an
adoption or belief in its truth.” Alternatively stated:
[W]hen an adverse party manifests a belief in or adopts the
statement of another person as his or her own, the statement
is treated as an adoptive admission under section
90.803(18)(b). An adoptive admission occurs either when
there is a direct expression by the adverse party assenting to
the statement of another or when the conduct of the adverse
party circumstantially indicates the party’s assent to the truth
of the statement.
Jones, 127 So. 3d at 624 (emphases added) (internal quotes and citations
omitted) (holding that age disclosed on a driver’s license constituted an
admission where the party swore to the truth of the statements made in
the license application); see Twilegar v. State, 42 So. 3d 177, 198 (Fla.
2010) (finding that jailhouse phone call was admissible as adoptive
admission where inmate “was a knowing and active participant in the
8
recorded conversations and . . . had ample opportunity to refute or
contradict any of the statements that were adverse to his interests;
instead, he acquiesced in the statements”); State v. Palmore, 510 So. 2d
1152, 1153 (Fla. 3d DCA 1987) (“Palmore expressly manifested his belief
in the truth of the statements contained in the motion to dismiss, thereby
adopting those statements as his own.”); Saudi Arabian Airlines Corp. v.
Dunn, 438 So. 2d 116, 119 (Fla. 1st DCA 1983) (ruling that company’s use
of employee’s previous deposition testimony to support its summary
judgment motion constituted an adoptive admission); see also State v.
Anderson, 210 Ariz. 327, 339, 111 P.3d 369, 381 (2005) (en banc)
(“Adoption occurs when a defendant affirmatively agrees to statements
made in his presence, or expounds on the statements by adding his own
‘explanations and comments.’ ” (citation omitted)).
Under section 90.803(18)(b), certain statements made or adopted by an
opposing party are admissible and may be offered against that party. As
discussed in greater detail below, Plaintiff relies on the theory of “adoption
by use,” whereby a party’s use of or reliance on the hearsay statement of
another may constitute an “adoption” of the statement’s truth within the
meaning of the rule. See, e.g., White Indus., Inc. v. Cessna Aircraft Co.,
611 F. Supp. 1049, 1062–63 (W.D. Mo. 1985) (discussing the “adoption by
use” theory under Federal Rule of Evidence 801(d)(2)(B)). 4
Unlike other hearsay exceptions, an admission does not require a
guarantee of trustworthiness; because section 90.803(18)(b) concerns
either a party’s own statement or a statement that may be attributed to a
party, a policy of fairness permits those statements to be used against that
party. Ring Power Corp. v. Condado-Perez, 42 Fla. L. Weekly D1426,
D1428 (Fla. 2d DCA June 21, 2017); see Fed. R. Evid. 801(d)(2) advisory
committee’s notes (“Admissions by a party-opponent are excluded from the
category of hearsay on the theory that their admissibility in evidence is the
result of the adversary system rather than satisfaction of the conditions of
the hearsay rule.”). Since “a party can hardly complain that he had no
opportunity to cross-examine himself at the time the admissions were
made . . . the fundamental reason for excluding this hearsay evidence is
not present.” Metro. Dade Cty. v. Yearby, 580 So. 2d 186, 188 (Fla. 3d
DCA 1991); see also Globe v. State, 877 So. 2d 663, 673 (Fla. 2004)
(“[S]tatements admitted as adoptive admissions do not implicate the
Confrontation Clause.”).
4Federal Rule of Evidence 801(d)(2)(B) on adoptive admissions is identical to the
Florida Evidence Code under section 90.803(18)(b).
9
Numerous cases have held that statements found on websites are
hearsay, and must be viewed as such when considering whether they
should be admitted into evidence. See, e.g., United States v. Jackson, 208
F.3d 633, 637 (7th Cir. 2000) (“The web postings were not statements
made by declarants testifying at trial, and they were being offered to prove
the truth of the matter asserted. That means they were hearsay.”).
Generally, a party’s website content may be considered as its own
statement and thus used as evidence against it, see, e.g., Van Westrienen
v. Americontinental Collection Corp., 94 F. Supp. 2d 1087, 1109 (D. Or.
2000), but a finding of adoptive approval of a third party’s statement must
be decided in light of the circumstances surrounding the statement’s use.
Shemman v. Am. S.S. Co., 280 N.W.2d 852, 860 (Mich. Ct. App. 1979).
Consistent with both the Florida and Federal rules, it is not enough
that an opposing party “merely repeats” the underlying hearsay; indeed,
the party must make use of the hearsay in a manner that “manifest[s] a
belief in [its] trustworthiness,” or otherwise reflects the party’s
incorporation of the substance of the hearsay into a statement that the
party itself either made or authorized. See Sea-Land Serv., Inc. v. Lozen
Int’l, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (determining that an
employee’s forwarded e-mail originating from a third party was admissible
since it was prefaced with language manifesting a belief in the veracity of
the original e-mail’s content); Schering Corp. v. Pfizer Inc., 189 F.3d 218,
238–39 (2d Cir. 1999) (holding that survey results were adoptive
admissions where an employee of defendant wrote a report summarizing
the results of a survey of physicians and drawing conclusions about the
types of messages being communicated to physicians by company
representatives); Wagstaff v. Protective Apparel Corp., 760 F.2d 1074, 1078
(10th Cir. 1985) (finding that newspaper articles were admissible under
rule 801(d)(2)(B) where the defendant reprinted and distributed articles
that made representations about the defendant’s financial condition
because “[b]y reprinting the newspaper articles and distributing them to
persons with whom defendants were doing business, defendants
unequivocally manifested their adoption of the inflated statements made
in the newspaper articles”); Grundberg v. Upjohn Co., 137 F.R.D. 365, 370
(D. Utah 1991) (holding that a party adopted clinical reports by non-party
physicians when it used the reports to help secure FDA approval of new
drug). Thus, a website link alone cannot be construed as either an
admission, tacit approval or acceptance of the content of the linked
information or third-party statement. To prove that a website link to third-
party sources amounts to an adoptive admission, a proponent must show
that the opposing party also “manifested an adoption or belief in the truth”
of the statements in those links. § 90.803(18)(b), Fla. Stat.
10
Simply providing a hyperlink on a website to a document or source does
not constitute an express manifestation of an adoption or belief in the
statements and opinions contained within them. Janus Capital Grp., Inc.
v. First Derivative Traders, 564 U.S. 135, 148 n.12 (2011) (reasoning that
defendant was not subject to liability for securities fraud by providing link
to fraudulent prospectus on its website since “[m]erely hosting a document
on a [website] does not indicate that the hosting entity adopts the
document as its own statement or exercises control over its content”). The
fact that a party links to or posts on its website material from another
source, or otherwise hosts or references third-party documents on its
website does not by itself constitute a clear demonstration of intent to
adopt. See Fenner v. Suthers, 194 F. Supp. 2d 1146, 1149 (D. Colo. 2002)
(holding that material from websites was inadmissible because proponent
failed to explain whether the source “sponsors, endorses, collects, or
simply provides the information on the [websites]”); Aikens v. Cty. of
Ventura, No. B221992, 2011 WL 2811458, at *5 (Cal. Ct. App. June 30,
2011) (ruling that county’s posting of a study performed by federal
government did not constitute an adoptive admission of the truth of the
contents of the study, as “[t]he mere posting of a document on a party’s
website does not manifest the party’s ‘adoption’ of the document or ‘his
belief in its truth’ ”). 5
The act of “adoption” in this case did not occur when Defendants simply
provided a link to the Reports as a means for consumers to obtain a
balance of information for making informed choices about product usage.
When doing so, a party does not vouch for the veracity of the linked
information any more than a sender of a text or e-mail containing an
attached news article, e-mail, or some other document necessarily
endorses or adopts all the attachment’s contents (without otherwise
manifesting an adoption or belief in the truth thereof). Compare Janus
Capital Grp., Inc., 564 U.S. at 148 n.12, with United States v. Safavian,
435 F. Supp. 2d 36, 43–44 (D.D.C. 2006) (finding that “[t]he context and
content of certain e-mails demonstrate clearly that Mr. Safavian
manifested an adoption or belief in the truth of the statements of other
people as he forwarded their e-mails,” while “[o]ther e-mails forwarded by
5 This analysis, however, does not restrict the ability to use such posts or links
to prove notice, possession, or knowledge. See, e.g., United States v. Cameron,
762 F. Supp. 2d 152, 162 (D. Me. 2011) (explaining that possession of child
pornography on a party’s computer could be an admission of committing the
crime of possession), aff’d in part, rev’d in part on other grounds, 699 F.3d 621(1st Cir. 2012).
11
Mr. Safavian do not clearly demonstrate his adoption of the contents, and
therefore are not admitted under Rule 801(d)(2)(B)”).
Defendants argue that the Reports could not be adoptive admissions
because Defendants had not, and as a practical matter could not,
independently verify or agree with all the statements contained therein. 6
Although this is certainly true, that is not the test for admissibility under
section 90.803(18)(b). The adoption of a third-party statement does not
require personal knowledge of the statement’s veracity. Pillsbury Co. v.
Cleaver-Brooks Div. of Aqua-Chem, Inc., 646 F.2d 1216, 1218 n.2 (8th Cir.
1981). All that is required to find an adoption of another’s statement is
some form of agreement, or in other situations, silence under
circumstances where the statement “was so accusatory in nature that . . .
silence may be inferred to have been assent to its truth.” State v.
Hernandez, 875 So. 2d 1271, 1274 (Fla. 3d DCA 2004).
Although the use of a specific disclaimer certainly evinces the intent
that referenced third-party statements should not be perceived as adoptive
admissions, the absence of one does not constitute silence sufficient to
create a binding admission. Regardless, Defendants affirmatively
disclaimed any acceptance or reliance on the Reports so as to preclude the
application of section 90.803(18)(b). For example, PM’s disclaimer on their
website states as follows:
The Altria Corporate Websites may include links to other
sites, some of them operated by other Altria Group companies
and some of them operated by third parties. These links are
provided as a convenience to you and as an additional avenue
of access to the information contained therein. We have not
necessarily reviewed all of the information on other third party
sites and are not responsible for the content of any other third
party sites or any products or services that may be offered
through other third party sites. Third-party sites may contain
information with which we do or do not agree. Inclusion of links
to other sites should not be viewed as our endorsement of the
content of linked sites. We are not responsible for any losses,
6 While only excerpts from the Reports were admitted at trial, we note that some
of the Reports linked on Defendants’ websites contained nearly a thousand pages
of text. The 2014 Report, for example, was 943 pages with 87 authors listed,
including numerous scientists who were neither public officials nor employed by
the U.S. Government or any of its agencies.
12
damages or other liabilities incurred as a result of your use of
any linked third party sites. 7
(Emphasis added). Similarly, RJR’s disclaimer on their website states,
“[t]he links on this page are provided as a convenience, but R.J. Reynolds
Tobacco Company is not responsible for the content on the linked
websites. The statements and views available on those sites do not
necessarily represent the views of R.J. Reynolds or its management.” 8
Plaintiff alleges that Defendants’ adoption arises not just from mere
linking, but also from advising consumers that they should be “guided by”
and “rely on” the linked Reports. Such language does not equate to an
expression of intent to adopt the statements as their own, especially when
considered in conjunction with the more specific disclaimers in place on
their websites. These disclaimers show that Defendants unambiguously
repudiated any endorsement or ratification of the content of the sources
to which they linked. It cannot be said that Defendants intended to adopt
these third-party statements while simultaneously disclaiming their intent
to do so. Stating that consumers should “rely on” or be “guided by” what
the Surgeon General says about smoking and health issues is a far cry
from “manifest[ing] an adoption or belief in [the] truth” of the specific
statements in the Reports. See § 90.803(18)(b), Fla. Stat. Nothing else
found on Defendants’ websites “manifested an adoption or belief in [the]
truth” of any statements in the linked Reports, and Defendants did not
otherwise manifest assent thereto. Id. Here, there was no “direct
expression” by Defendants assenting to the truth of the specific,
prejudicial excerpts from the Reports that Plaintiff presented to the jury.
To the contrary, Defendants explicitly clarified on their websites that they
did not necessarily agree with the positions contained in the documents
linked.
The internet remains “one large catalyst for rumor, innuendo, and
misinformation,” lacking effective formal mechanisms of authentication.
7 Terms of Use, Altria (September 2015), http://www.altria.com/Pages/Terms-of-
Use.aspx. It was undisputed that the PM website contained a similar disclaimer
at all times material to this cause of action, although its wording may have varied
insignificantly over time.
8 Making Decisions Regarding Tobacco Use, R.J. Reynolds Tobacco Company,
http://www.rjrt.com/tobacco-use-health/public-health-information/ (last
visited August 3, 2017). As previously stated, though the current wording of this
disclaimer may not be the same as it was at the time of this cause of action, any
difference in the wording is not significant to our conclusion.
13
St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774–75
(S.D. Tex. 1999). Despite advances in technology and the ability to fact-
check more readily, separating fact from fiction nonetheless remains a
daunting task for the average consumer of internet information. With that
comes the inherent risk that inaccurate information can appear legitimate,
and may inadvertently be perpetuated despite the best of intentions.
Understanding that reality, holding a purveyor of web content accountable
for providing its viewers access to a broad range of information would open
a “Pandora’s Box” where they could be legally bound by almost any
statement or content found on a linked webpage or document — including
unfiltered visitor comments, third-party advertising, or additional links to
other sources — all without regard to whether that content is disputed,
controversial, or conflicting. This would serve no purpose other than to
chill the dissemination of information by deterring website owners or
operators from incorporating any third-party content for fear of tying
themselves to the yoke of those sources. 9
Defendants’ use of hyperlinks to the Reports was neither a direct nor
indirect expression of assent, and did not represent their “intended
assertion of the truth of the information therein.” White Indus., Inc., 611
F. Supp. at 1062. Further, Defendants posted clear disclaimers as to any
agreement therewith, made no statements of express agreement with the
contents of the linked documents, and did not otherwise use selected
quotes from the Reports for their own purposes. Accordingly, we find that
the linked Reports on Defendants’ websites do not qualify as adoptive
admissions under section 90.803(18).
D. THE EXPERT’S REFERENCES TO THE REPORTS WERE IMPROPER
One of Plaintiff’s experts at trial was Dr. Robert Proctor, who was one
of the editors of the 2014 Report. Using other published sources for
impeachment purposes, Defendants cross-examined Dr. Proctor on
whether the public health community was divided about the dangers of
filtered cigarettes compared to unfiltered cigarettes. On redirect
examination, Plaintiff attempted to counter the impeachment by inquiring
about the 2014 Report’s conclusions (the trial court had already
improperly permitted the Report to be received into evidence). RJR
9Additionally, a website owner may not be in control or aware of what changes,
edits or updates are made to its linked content. Because third-party content is
controlled by third parties, what may have initially been a link to “approved”
content might later become something quite different from what was intended to
be conveyed.
14
objected to improper bolstering, asking how the Report fit “within the
scope of cross-examination”; Plaintiff responded that the Report was
relevant because it “deals with the subject of filters and whether filters
were actually safer.” The trial court overruled the objection. Thereafter,
Dr. Proctor testified about the 2014 Report’s conclusion that filtered
cigarettes increased the risk of adenocarcinoma (a type of lung cancer) by
causing smokers to inhale more deeply, and by ventilating in a way that
“increases certain poisonous compounds.” On appeal, Defendants argue
that Plaintiff should not have been permitted to use the 2014 Report to
bolster the testimony of her expert witness. On this point, we also agree
with Defendants.
It is well established that “experts cannot bolster or corroborate their
opinions with the opinions of other experts who do not testify,” as “[s]uch
testimony improperly permits one expert to become a conduit for the
opinion of another expert who is not subject to cross-examination.”
Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997) (holding that
any probative value of bolstered testimony is “substantially outweighed by
the danger of unfair prejudice, confusion of issues, [or] misleading the
jury” (quoting § 90.403, Fla. Stat.)); accord Tolbert v. State, 114 So. 3d 291,
294 (Fla. 4th DCA 2013) (“Although an expert may rely on hearsay in
reaching the expert’s opinion, an expert’s testimony may not merely be
used as a conduit for the introduction of the otherwise inadmissible
evidence.” (internal quotes and citation omitted)); see also Liberatore v.
Kaufman, 835 So. 2d 404, 407 (Fla. 4th DCA 2003) (listing cases
prohibiting bolstering of expert testimony on direct examination). The use
of articles, journals or treatises as substantive evidence has long been held
improper under Florida law “because the opposing party cannot cross-
examine and impeach the source of the hearsay.” Darragh, 95 So. 3d at
901 (quoting Duss v. Garcia, 80 So. 3d 358, 364 (Fla. 1st DCA 2012)). In
the same way, allowing an expert to bolster his or her testimony is strictly
forbidden because it “deprives the opposing party of the opportunity to
cross-examine the non-testifying experts.” Miller v. State, 127 So. 3d 580,
586 (Fla. 4th DCA 2012).
Florida’s rule prohibiting the bolstering of expert opinions with
authoritative publications derives from section 90.706, Florida Statutes
(2015), which allows the use of a publication on cross-examination of an
expert witness if the expert recognizes it as authoritative. State Dep’t of
Corr. v. Junod, 217 So. 3d 200, 208 (Fla. 1st DCA 2017). Because section
90.706 only provides for the use of such treatises or publications on cross-
examination, the statute “does not allow statements in a learned treatise
to be used as substantive evidence since the treatise is hearsay if it is
15
offered as substantive evidence.” Green v. Goldberg, 630 So. 2d 606, 609
(Fla. 4th DCA 1993). Such authoritative sources “cannot be used to
bolster the credibility of an expert or to supplement an opinion of the
expert which has already been formed.” Erwin v. Todd, 699 So. 2d 275,
278 (Fla. 5th DCA 1997); see Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla.
2006) (“This is consistent with the general rule that it is improper on direct
examination to introduce evidence to support the credibility of a witness.”).
“[T]he mere mention of [a publication] provides credibility to the expert’s
opinion not available to the opposing expert.” Cordoba v. Rodriguez, 939
So. 2d 319, 322 (Fla. 4th DCA 2006).
Expert witnesses may properly rely upon hearsay in arriving at an
opinion so long as “the hearsay is of the type reasonably relied upon by
experts in the field.” Vega v. State Farm Mut. Auto., 45 So. 3d 43, 45 (Fla.
5th DCA 2010) (explaining that facts or data used to support the opinion
expressed “need not be admissible in evidence if they are of the type
reasonably relied upon by experts in the subject”); accord Tolbert, 114 So.
3d at 294. Still, experts may not bolster their testimony by testifying about
the substantive content of published materials. See Linn, 946 So. 2d at1038–39 (“Usually, experts can testify that they formed their opinions in
reliance on sources that contain inadmissible information without also
conveying the substance of the inadmissible information.”).
In Philip Morris, Inc. v. Janoff, 901 So. 2d 141, 143 (Fla. 3d DCA 2004),
the defendants asked their expert witness on redirect examination whether
various “authoritative textbooks and journals” supported the plaintiff’s
theory of causation, which was contrary to that witness’s medical opinion
on causation. The expert testified that those materials did not support the
plaintiff’s causation theory. Id. The trial court found that this constituted
impermissible bolstering and ordered a new trial. Id. at 142. The Third
District Court of Appeal affirmed, reasoning that defense counsel’s “listing
the litany of authoritative sources” that lacked support for the plaintiff’s
causation theory “was solely to bolster the defense expert’s opinion by
showing that his opinion must be correct because it was supported by the
lack of articles stating otherwise.” Id. at 145; see also In re S.E., 946 So.
2d 620, 622 (Fla. 2d DCA 2007) (reversing for new trial where expert
“improperly bolstered his opinion by testifying regarding the contents of
three articles published in the Journal of Neurosurgery”); 5 Star Builders,
Inc., of W.P.B. v. Leone, 916 So. 2d 1010, 1012 (Fla. 4th DCA 2006)
(ordering new trial where third-party hearsay documents “served only to
substantiate [the witness’s] testimony and bolster her own credibility”).
16
Here, Plaintiff impermissibly bolstered Dr. Proctor’s testimony with the
2014 Report by asking on redirect examination whether he agreed with
various excerpts from the Report. The expert’s reference to the Report
“served only to impermissibly bolster [his] credibility . . . and diminish the
credibility of the defense expert’s opinions.” Donshik v. Sherman, 861 So.
2d 53, 56 (Fla. 3d DCA 2003).
The facts of Donshik are analogous. There, the Third District remanded
the case for a new trial because the plaintiff used a study published in a
medical journal to bolster their experts’ opinions, even though one of those
experts “was the chair of the executive committee and publication
committee for this study.” 861 So. 2d at 55 n.2. This is comparable to
Dr. Proctor’s role as an editor of the 2014 Report that was used to bolster
his testimony. Since Dr. Proctor helped to edit the Report, the conclusions
invoked therefrom during his redirect examination were not just those of
other contributors that were consistent with his opinions at trial. As a
result, Plaintiff was improperly permitted to bolster her expert’s testimony
with the substance of an inadmissible government report that directly
incorporated the expert’s own opinions and work product. As this court
has previously noted, “[a]n expert bolstering his own opinion by
inadmissible evidence deprives the parties of a fair trial” and is error.
Cordoba, 939 So. 2d at 323.
E. THE ADMISSION AND USE OF THE REPORTS WERE NOT HARMLESS
An error in the admission of evidence requires a new trial unless “the
beneficiary of the error [can] prove that there is no reasonable possibility
that the error complained of contributed to the verdict.” Special v. W. Boca
Med. Ctr., 160 So. 3d 1251, 1253 (Fla. 2014). As we have explained, the
trial court erroneously admitted the Reports into evidence, allowing
Plaintiff to unfairly buttress her factual contentions concerning the history
of the tobacco industry and the safety of smoking using the imprimatur of
the Surgeon General of the United States. Further, by bolstering the
opinion testimony of Dr. Proctor with substantive content from the 2014
Report, Plaintiff improperly enhanced the expert’s credibility with the jury.
This court has held that such improper bolstering can be so prejudicial as
to rise to the level of fundamental error and require a new trial. Cordoba,
939 So. 2d at 323.
The Reports did not constitute original research performed by the Office
of the Surgeon General; rather, they summarized and compiled a mix of
information, opinion and advocacy from outside sources. As such, the
Reports “represent[] a classic example of hearsay,” being “nothing more
17
than . . . written statement[s] of the declarant[s]” who drafted the various
contributions. Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216,
1220 (Fla. 1st DCA 1983) (holding that the state-issued Florida Handbook
for Drivers was inadmissible hearsay). Admitting the Reports at trial
effectively presented the jury with the opinions and conclusions of
numerous extra-judicial experts whom Defendants could not cross-
examine. See Darragh, 95 So. 3d at 901.
“Because the battle of experts has become as much a part of a trial as
the conflict that the litigation addresses,” Special, 160 So. 3d at 1260, the
cumulative harmful effect of these errors prejudiced Defendants by
depriving them of a fair trial. See R.J. Reynolds v. Calloway, 201 So. 3d
753, 762 (Fla. 4th DCA 2016) (“[I]n evaluating whether the errors were
harmless, we may consider the cumulative effect of preserved and
unpreserved error.” (internal quotes and citation omitted)). As the Donshik
court held regarding an improperly admitted report, “[w]here, as here, the
competing expert opinions, on both sides, were the focal point of the trial,
we cannot deem the error in the introduction of the [Reports] . . . to be
harmless.” 861 So. 2d at 56.
Considering the extensive use of these Reports at trial, Plaintiff cannot
meet her burden to show that their admission into evidence and use of the
Reports by Plaintiff’s counsel was harmless error. See Special, 160 So. 3d
at 1256. For the foregoing reasons, we reverse and remand for a new trial.
Reversed and Remanded for New Trial.
CIKLIN, J., and METZGER, ELIZABETH A., Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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