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Florida Third DCA rules that trial court committed reversible error by allowing the plaintiff to testify that her physicians had told her that her lung cancer was caused by cigarette smoking

On March 20, 2019, in Phillip Morris USA v. Gloger, No. 3D18-341, the Florida Third DCA reversed a final judgment for an Engle-progeny tobacco plaintiff and remanded the caser for a new trial due to an evidentiary error made by the trial court.  Over the objection of the defendants., the trial court allowed the plaintiff to testify that two of her oncologists told her that her primary lung cancer was caused by smoking cigarettes.  Although the doctors did not testify a trial, the trial court concluded that these statements were not hearsay because the statements were being offered not for their truth (i.e., whether Mrs. Gloger had lung cancer), but to show the “effect on listener” (i.e., the emotional impact Mrs. Gloger’s diagnosis with cancer had on her husband).  The Third DCA concurred in this part of the trial court’s analysis but concluded that the trial court erred in not agreeing to the defendant’s request under Fla. R. Evid. 90.403 to have the witness directed to simply rephrase the term “lung cancer” to “cancer,” “terminal cancer” or “deadly cancer” and thereby minimize that chance that the jury would use the statements as evidence of causation. 

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