       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 20, 2019.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                                No. 3D18-341
                         Lower Tribunal No. 11-23377
                             ________________


                      Philip Morris USA, Inc., et al.,
                                   Appellants,

                                        vs.

                            Kenneth Gloger, etc.,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta,
Georgia), for appellant R.J. Reynolds Tobacco Company; Shook, Hardy & Bacon
LLP, and Laura K. Whitmore (Tampa); Arnold & Porter Kaye Scholer LLP, and
Keri L. Arnold and Geoffrey J. Michael (Washington, DC), for appellant Philip
Morris USA Inc.

     Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander, Linda
A. Wells, Brian C. Tackenberg and Emily Cabrera, for appellee.


Before EMAS, C.J., and SCALES and HENDON, JJ.

      SCALES, J.
         In this Engle1 progeny wrongful death action, Phillip Morris USA Inc. and

R.J. Reynolds Tobacco Company, the defendants below (collectively, the “tobacco

defendants”), appeal a final judgment entered pursuant to a jury verdict in favor of

the plaintiff below, Kenneth Gloger, as personal representative of the estate of his

wife, Irene Gloger. The tobacco defendants challenge various aspects of the trial

conducted below, one of which merits discussion and warrants reversal.

Specifically, because we conclude that the trial court abused its discretion in

permitting Mr. Gloger to testify, without limitation, that Mrs. Gloger’s initial,

treating physicians (both oncologists, who did not testify at trial) told the Glogers

that Mrs. Gloger had primary lung cancer caused by smoking cigarettes, we

reverse the final judgment and remand the case for a new trial.2

         I.    RELEVANT FACTS AND PROCEDURAL BACKGROUND

         In July 2011, Kenneth Gloger, as personal representative for the estate of his

deceased wife, Irene Gloger, filed the instant wrongful death action against the

tobacco defendants and others in the Miami-Dade County Circuit Court. The

second amended complaint alleged, in relevant part, that: (i) Mrs. Gloger had

contracted lung cancer as a result of smoking cigarettes manufactured, advertised,

marketed, and sold by the tobacco defendants; (ii) Mrs. Gloger’s death, on

1   Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2 Given our resolution of this matter, we need not, and do not, reach any of the
other issues raised on appeal.

                                            2
November 22, 1996, was a direct and proximate result of her addiction to smoking

the tobacco defendants’ cigarettes; and (iii) the Glogers and their children have

Engle class member status. The tobacco defendants specifically denied these

allegations.

         The lower court ordered that trial be conducted in two phases. In phase 1,

the jury verdict form asked the jury to decide: (i) whether Mrs. Gloger was

addicted to cigarettes containing nicotine, and if so, was such addiction a legal

cause of lung cancer and death; (ii) whether smoking cigarettes manufactured by

the tobacco defendants was a legal cause of Mrs. Gloger’s lung cancer and death;

(iii) the percentage of fault between Mrs. Gloger and the tobacco defendants; (iv)

whether concealment or omission of material information concerning the health

effects or addictive nature of smoking cigarettes sold by the tobacco defendants

was a legal cause of Mrs. Gloger’s lung cancer and death; and (v) whether the

furtherance of the tobacco defendants’ agreement with other tobacco companies to

conceal or omit material information concerning the health effects or addictive

nature of smoking cigarettes was a legal cause of Mrs. Gloger’s lung cancer and

death.     Based on these findings, the jury was asked to award compensatory

damages and to determine whether an award of punitive damages was warranted.

In phase 2, the jury verdict form asked the jury to determine the amount of punitive

damages to award against the tobacco defendants.



                                          3
      Prior to trial, on October 6, 2017, the tobacco defendants filed a motion in

limine seeking to exclude, as hearsay, any out-of-court statements made to the

Glogers by non-testifying doctors about the origin and progression of Mrs.

Gloger’s cancer. Specifically, the tobacco defendants sought to preclude Mr.

Gloger from testifying that the two oncologists (Drs. Sinkovics and Altemose)

who, in 1995 and early 1996, initially treated Mrs. Gloger for her cancer, told the

Glogers that Mrs. Gloger had lung cancer caused by smoking cigarettes.

      At a subsequent hearing, the trial court ruled on the tobacco defendants’

motion in limine, finding that the oncologists’ statements to the Glogers 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 Mr. Gloger). The

trial court held that the subject statements were relevant to support Mr. Gloger’s

damages claims for pain and suffering; specifically, the statements demonstrated

“when the damages started to flow.”

      When defense counsel requested that the trial court give a limiting

instruction to the jury that the oncologists’ statements be considered only for the

“explicit purpose of the effect on the listener to Mr. Gloger for his damages,” the

trial court initially denied the request, explaining:

      THE COURT: [Mr. Gloger is] going to claim that he’s suffering
      because someone told him his wife is dying of cancer. And if it was


                                            4
      lung cancer, fine. The issue still remains, is it lung cancer. Just
      because – there’s going to be evidence going both ways as to whether
      her lung cancer was the cause of her death. You’ll be able to argue
      that if the jury – I’m not going to instruct them. But you can certainly
      argue that. . . . I’m sorry [Mr. Gloger] began to suffer, but that doctor
      that told him that was wrong. You’re going to find that he [sic] didn’t
      die of lung cancer and, therefore, his suffering – we feel bad for him,
      but – Just like every other case, you have to prove that someone
      wasn’t hurt because of what my client did.

(Emphasis added).

      At a later hearing, defense counsel again challenged the introduction of the

oncologists’ statements at trial, suggesting that Mr. Gloger be limited to testifying

that Drs. Sinkovics and Altemose told the Glogers that Mrs. Gloger had “cancer,

that it was termina[l] cancer, deadly cancer, however the Court finds is fair and

appropriate under the circumstances.” Citing to section 90.403 of the Florida

Statutes, defense counsel argued that limiting Mr. Gloger’s testimony in this

fashion eliminated the prejudice to the tobacco defendants “under a 403 analysis”

without diminishing the impact the cancer diagnosis had on Mr. Gloger when he

heard it. Defense counsel emphasized, “[T]hat, to us, is a solution to the problem

of letting in back-door testimony about lung cancer from witnesses that are not

going to be testifying in the case . . . .” The trial court declined to limit Mr.

Gloger’s testimony in such fashion, but agreed to give a limiting instruction when

Mr. Gloger testified about what the oncologists told him and Mrs. Gloger.




                                         5
      Defense counsel then filed a legal memorandum arguing that a limiting

instruction would be insufficient, arguing again that “the proper remedy is to

substitute the word ‘terminal’ for the word ‘lung’ when Mr. Gloger tells the jury

about the conversations” with Drs. Sinkovics and Altemose. At trial, the lower

court denied the tobacco defendants’ request, stating its intention to give a limiting

instruction.

      When Mr. Gloger’s trial testimony turned to the conversations he and Mrs.

Gloger had with Drs. Sinkovics and Altemose, the trial court gave the following

limiting instruction:

      THE COURT: Ladies and gentlemen of the jury, Mr. Gloger is now
      going to testify about things that his doctor told . . . his wife and him.
      And these things involve his wife’s diagnosis.

             You may consider what Mr. Gloger heard to evaluate the effect
      that information had on Mr. Gloger. Based on a rule of law relating to
      hearsay, however, you may not consider what the doctors told Mr.
      Gloger for the truth of the matter asserted, just the effect the
      information had on Mr. Gloger.

Mr. Gloger then testified, in relevant part, as follows:

      Q. [by Plaintiff’s counsel] Back to Dr. Sinkovics, so he’s a cancer
      doctor?

      A. [by Kenneth Gloger] Yes.

      Q. And he works at St. Joe’s cancer center?

      A. Yes.

               ....


                                           6
Q. And so before you have the treatment, you meet with the cancer
doctor, and did this cancer doctor, oncologist, Dr. Sinkovics, tell you
what Irene had?

A. He believed that she had lung cancer.

Q. Did he tell you what it was caused by?

A. Said it was probably caused by smoking.

Q. After Dr. Sinkovics treated her for a while and he started some
therapy, did there come a time when you transferred to another
oncologist, also at the St. Joe’s cancer center who took over the care
of Irene?

A. Yes, that’s correct.

Q. What was his name?

A. His name was Dr. Rand Altemose.

Q. And was Dr. Altemose, likewise, a cancer doctor, oncologist who
was responsible for the treatment of your wife?

A. Yes, he was.

Q. And did you talk to Dr. Altemose about the cause of – strike that.
Did you talk to Dr. Altemose about his diagnosis for Irene?

A. Yes, we did.

Q. And what did he say?

A. He said it was from smoking, lung cancer.

Q. He said she had lung cancer from smoking?

A. Yes.



                                  7
                 ....

         Q. And did there come a point in time where Dr. Altemose referred
         you on to Dr. Ruckdeschel[3] and the Moffitt Cancer Center?

         A. Yes.

                 ....

         Q. And did you listen to Dr. Altemose and go to Moffitt Cancer
         Center?

         A. Yes, we did.

                 ....

                Q. Did Dr. Ruckdeschel explain to you what he believed the –
         her diagnosis and its cause?

               A. Yes, he said she had lung cancer and he believed it was
         from smoking.

                 Q. Obviously, this was tough news for you and your wife to
         hear?

                 A. Yes, she was very weak at that point.

               Q. I’m talking about even going back to Dr. Sinkovics, I’m
         sorry. Going back to Dr. Sinkovics, back to 1995, the first time you
         heard it, the second time you heard it, the third time you heard it, or
         whenever you heard it.

               A. Oh, it was devastating. I – I had no idea. I mean, Irene
         was, for the most part, very healthy prior to this diagnosis.

         The jury returned a verdict in favor of the estate, finding R.J. Reynolds

Tobacco Company fifty percent at fault, Philip Morris USA, Inc. thirty percent at

3   Dr. John Ruckdeschel testified at trial as the estate’s expert on causation.

                                             8
fault, and Mrs. Gloger twenty percent at fault. The jury awarded $7.5 million in

compensatory damages ($2.5 million to Mr. Gloger, and $2.5 million each to the

Glogers’s two children) and finding punitive damages were appropriate. In phase

2 of the trial, the jury awarded $5 million in punitive damages against each of the

tobacco defendants ($10 million total).        On February 4, 2018, the trial court

entered a final judgment pursuant to the jury verdicts. This appeal ensued.

      II.    ANALYSIS4

      1. The out-of-court statements by Drs. Sinkovics and Altemose were offered
         to prove the “effect on listener” and, therefore, were not hearsay.

      We begin our analysis by deciding whether, as a matter of law, the subject

out-of-court statements by Drs. Sinkovics and Altemose were hearsay in this case.

      Under the Florida Evidence Code, “[h]earsay” is defined as an out-of-court

statement “offered in evidence to prove the truth of the matter asserted.”            §

90.801(1)(c), Fla. Stat. (2018). While hearsay evidence is generally inadmissible

at trial, see § 90.802, Fla. Stat. (2018), if the out-of-court statement “is offered for

some purpose other than its truth, the statement is not hearsay and is generally

admissible if relevant to a material issue in the case.” Penalver v. State, 926 So. 2d


4 “The standard of review of a trial court’s decision on the admissibility of
evidence is generally an abuse of discretion standard. However, the question of
whether evidence falls within the statutory definition of hearsay is a matter of law,
subject to de novo review.” Deutsche Bank Nat. Tr. Co. v. Alaqua Prop., 190 So.
3d 662, 664 (Fla. 5th DCA 2016) (quoting Burkey v. State, 922 So. 2d 1033, 1035
(Fla. 4th DCA 2006)).

                                           9
1118, 1132 (Fla. 2006); see also § 90.401, Fla. Stat. (2018) (“Relevant evidence is

evidence tending to prove or disprove a material fact.”).

      As the surviving spouse in this wrongful death action, Mr. Gloger was

entitled to seek recovery for the loss of his wife’s “companionship and protection

and for mental pain and suffering from the date of injury.” § 768.21(2), Fla. Stat.

(2018) (emphasis added); see also Fla. Std. Jury Instr. (Civ.) 502.2(d). Consistent

with section 768.21 and the standard jury instruction, the estate’s counsel sought to

establish Mr. Gloger’s entitlement to damages by introducing the oncologists’ out-

of-court statements to demonstrate the emotional impact (i.e., the “effect on

listener”) on Mr. Gloger of hearing, for the first time, that his wife had cancer.

Because the subject testimony was not offered to prove the truth of what was told

to Mr. Gloger by the non-testifying doctors – i.e., that Mrs. Gloger’s cancer

originated in her lung – it was not hearsay; and, because such evidence was

relevant to a material issue in the case (Mr. Gloger’s damages), it was admissible

at trial. See, e.g. Pitts v. State, 227 So. 3d 674, 678 (Fla. 1st DCA 2017) (“If a

statement is offered to show the effect on the listener rather than the truth of the

statement, as was the case in this instance, it is not hearsay.”); North v. State, 221

So. 3d 1235, 1237 (Fla. 2d DCA 2017) (recognizing that “an out-of-court

statement may be admissible to establish the material effect that statement had on a

listener – regardless of whether that statement was true or not”); Jenkins v. State,



                                         10
189 So. 3d 866, 867 (Fla. 4th DCA 2015) (“Because the excluded testimony was

not being introduced for the truth of the matter asserted but rather for the effect on

the listener, we find that the trial court erred in excluding the statement as

hearsay.”).

      2. The out-of-court statements by Drs. Sinkovics and Altemose were subject
         to limitation under section 90.403 of the Florida Statutes.

      Having determined that the out-of-court statements by Drs. Sinkovics and

Altemose were not hearsay in this case, this Court turns to whether the statements

should nevertheless have been excluded or limited under section 90.403 of the

Florida Statutes.

      a. The trial court’s limiting instruction was not effective in this case

      Section 90.403 gives the trial court broad discretion to exclude or limit

otherwise admissible, relevant evidence if the probative value of the evidence “is

substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.” § 90.403,

Fla. Stat. (2018); see Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639, 645

(Fla. 4th DCA 2008). “When a trial court considers the danger of unfair prejudice

against the probative value of evidence, proper considerations include ‘the need for

the evidence; the tendency of the evidence to suggest an improper basis to the jury

for resolving the matter, e.g., an emotional basis; the chain of inference necessary

to establish the material fact; and the effectiveness of a limiting instruction.’”


                                         11
David v. Brown, 774 So. 2d 775, 777 (Fla. 4th DCA 2000) (quoting State v.

McClain, 525 So. 2d 420, 422 (Fla. 1988)); see also Jones v. Alayon, 162 So. 3d

360, 365 (Fla. 4th DCA 2015) (same).

      Here, before Mr. Gloger testified about the Glogers’s conversations with

Drs. Sinkovics and Altemose, the trial court gave the jury a limiting instruction,

directing the jury “not to consider what the doctors told Mr. Gloger [about Mrs.

Gloger’s diagnosis] for the truth of the matter asserted, just the effect the

information had on Mr. Gloger.” While we recognize that “any prejudicial effect

generally can be limited by giving instructions cautioning the jury as to the limited

use of the testimony,” State v. Baird, 572 So. 2d 904, 906 (Fla. 1990), we conclude

that, under the particular circumstances of this case, the instant limiting instruction

was not effective to assuage the significant prejudice to the tobacco defendants of

the jury’s hearing that Drs. Sinkovics and Altemose – neither of whom testified at

trial – had diagnosed Mrs. Gloger with primary lung cancer.

      The origin of Mrs. Gloger’s cancer was the critical fact issue presented to

the jury during phase 1 of the jury trial. The second amended complaint alleged

that Mrs. Gloger’s cancer originated in her lungs, which, if true, would qualify her

as a member of the class created in Engle v. Liggett Group, Inc., 945 So. 2d 1246

(Fla. 2006).5 Whereas, the tobacco defendants maintained below that Mrs. Gloger

5  Under Engle, an individual class member is entitled to certain factual findings
against the tobacco defendants “as a matter of res judicata without need of further

                                          12
was not an Engle class member because her cancer allegedly originated in her

thymus gland, which is located in a region of the body between the lungs called the

mediastinum.

      At trial, the lower court permissibly limited the number of experts per side

so as to prevent the presentation of cumulative testimony. See Woodson v. Go,

166 So. 3d 231, 234-35 (Fla. 5th DCA 2015). Dr. John Ruckdeschel, the third

oncologist to treat Mrs. Gloger for her cancer after Drs. Sinkovics and Altemose,

was identified by the estate as its causation expert and testified that Mrs. Gloger

had died of cancer that originated in her lung, and that the lung cancer was caused

proof.” R.J. Reynolds Tobacco Co. v. Schleider, 44 Fla. L. Weekly D82 (Fla. 3d
DCA 2018). The factual findings include:

      (i) “that smoking cigarettes causes” certain named diseases including
      COPD and lung cancer; (ii) “that nicotine in cigarettes is addictive;”
      (iii) “that the [Engle] defendants placed cigarettes on the market that
      were defective and unreasonably dangerous;” (iv) “that the [Engle]
      defendants concealed or omitted material information not otherwise
      known or available knowing that the material was false or misleading
      or failed to disclose a material fact concerning the health effects or
      addictive nature of smoking cigarettes or both;” (v) “that the [Engle]
      defendants agreed to conceal or omit information regarding the health
      effects of cigarettes or their addictive nature with the intention that
      smokers and the public would rely on this information to their
      detriment;” (vi) “that all of the [Engle] defendants sold or supplied
      cigarettes that were defective;” (vii) “that all of the [Engle] defendants
      sold or supplied cigarettes that, at the time of sale or supply, did not
      conform to representations of fact made by said defendants;” and
      (viii) “that all of the [Engle] defendants were negligent.”

Phillip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-25 (Fla. 2013) (quoting
Engle, 945 So. 2d at 1276-77) (emphasis added).

                                         13
by smoking. In contrast, the tobacco defendants relied upon the testimony of Dr.

Kim Geisenger, a pathologist. Dr. Geisenger testified that Mrs. Gloger’s cancer

originated in the thymus gland.

      The Florida Supreme Court has confirmed that an expert witness cannot

testify on direct examination “that the expert relied on consultations with

colleagues or other experts in forming his or her opinion.” Linn v. Fossum, 946

So. 2d 1032, 1033 (Fla. 2006). “[S]uch testimony is inadmissible because it

impermissibly permits the testifying experts to bolster their opinions and creates

the danger that the testifying experts will serve as conduits for the opinions of

others who are not subject to cross-examination.” Id.; cf. Donshik v. Sherman, 861

So. 2d 53, 56 (Fla. 3d DCA 2003) (holding, in a medical malpractice action, that

permitting the plaintiff to introduce a treatise “during the plaintiff’s case in chief

served only to impermissibly bolster the credibility of the plaintiff’s experts and

diminish the credibility of the defense expert’s opinions on the ultimate issue”).

      By permitting Mr. Gloger to testify that Drs. Sinkovics and Altemose had

also diagnosed Mrs. Gloger with primary “lung cancer,” the trial court, albeit

unwittingly, provided the estate the means of both (i) circumventing the court’s

limitation on the presentation of cumulative expert testimony on the critical fact

issue presented in phase 1 (the origin of Mrs. Gloger’s cancer), and (ii) bolstering

the testimony of the estate’s expert, Dr. Ruckdeschel, with the opinions of two



                                         14
colleagues who were not subject to cross-examination at trial. Indeed, immediately

after soliciting the subject testimony from Mr. Gloger, the estate’s counsel

emphasized the fact that all three of Mrs. Gloger’s treating oncologists had

diagnosed her with primary lung cancer:

             Q. Did Dr. Ruckdeschel explain to you what he believed the –
      her diagnosis and its cause?

            A. Yes, he said she had lung cancer and he believed it was
      from smoking.

              Q. Obviously, this was tough news for you and your wife to
      hear?

              A. Yes, she was very weak at that point.

            Q. I’m talking about even going back to Dr. Sinkovics, I’m
      sorry. Going back to Dr. Sinkovics, back to 1995, the first time you
      heard it, the second time you heard it, the third time you heard it, or
      whenever you heard it.

            A. Oh, it was devastating. I – I had no idea. I mean, Irene
      was, for the most part, very healthy prior to this diagnosis.

(Emphasis added).

      In this instance, we conclude that the trial court’s limiting instruction was

ineffective in alleviating the significant danger that, on hearing the subject

testimony from Mr. Gloger, the jury would conflate its primary charge of

determining whether Mrs. Gloger died of primary lung cancer, with its

concomitant duty of determining Mr. Gloger’s entitlement to damages for pain and

suffering stemming therefrom.6 Cf. Diaz v. Fedex Freight East, Inc., 114 So. 3d


                                          15
224, 227 (Fla. 5th DCA 2012) (concluding that, where liability was at issue, a

curative instruction was insufficient to overcome the prejudice created by improper

testimony on causation).

      b. The trial court should have limited Mr. Gloger’s testimony as to the
         Glogers’s conversations with Drs. Sinkovics and Altemose

       “Section 90.403 may be applied to limit only a part of a statement or the

details of an event or occurrence while admitting the basic statement or testimony.”

Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 403.1 (May 2018). Though

this principle is most commonly applied in the criminal arena, it is equally

applicable in civil cases. See, e.g., Honeywell Intern., Inc. v. Guilder, 23 So. 3d

867, 870 (Fla. 3d DCA 2009) (concluding that the lower court erred in refusing to

redact a portion of a letter introduced at trial because it was unfairly prejudicial

under section 90.403); MCI Express, Inc. v. Ford Motor Co., 832 So. 2d 795, 801

(Fla. 3d DCA 2002) (“Because the comment, ‘Goddamn Cubans,’ could easily

have been rephrased without altering the meaning of the sentence, or detracting

from its ostensible relevance, any probative value was outweighed by the prejudice

that resulted from having the jury hear it.”).




6 The confusing and misleading nature of the Glogers’s conversations with Drs.
Sinkovics and Altemose is highlighted by the trial court’s pre-trial suggestion that
defense counsel simply argue to the jury that the “doctor that told [Mr. Gloger]
that [Mrs. Gloger had lung cancer] was wrong.” See, Section I., supra.

                                          16
      In this case, the tobacco defendants claim that the trial court could have

eliminated the substantial prejudice to the tobacco defendants under a section

90.403 analysis by having Mr. Gloger – when testifying as to his conversations

with Drs. Sinkovics and Altemose – simply rephrase the term “lung cancer” to

“cancer,” “terminal cancer,” “deadly cancer,” or “however the Court finds is fair

and appropriate under the circumstances.” We agree. As in MCI Express, Inc.,

rephrasing the subject testimony in such a manner would not have altered the

jury’s understanding of the testimony; nor would it have diminished the relevance

for which it was offered at trial (i.e., establishing the emotional impact that hearing

it had on Mr. Gloger). 832 So. 2d at 801.

      Because the trial court had the discretion, under section 90.403, to decide

how to limit Mr. Gloger’s testimony, we do not decide which iteration of “lung

cancer” proposed by the tobacco defendants was appropriate in this case. Rather,

we conclude that the trial court abused its discretion in not, in some fashion,

limiting this testimony.

      c. The trial court’s failure to limit Mr. Gloger’s testimony was not harmless
         error

      A trial court’s error in the admission of evidence under section 90.403 is

subject to harmless error analysis. See Special v. W. Boca Med. Ctr., 160 So. 3d

1251, 1256 (Fla. 2014). “To test for harmless error, the beneficiary of the error has

the burden to prove that the error complained of did not contribute to the verdict.


                                          17
Alternatively stated, the beneficiary of the error must prove that there is no

reasonable possibility that the error contributed to the verdict.” Id.

      Here, the origin of Irene Gloger’s cancer was of critical importance in this

case as a jury finding that she had primary lung cancer would make her an Engle

class member, thus, entitling her estate to the phase 1 common core findings in

Engle. Engle, 945 So. 2d at 1269. Moreover, Question 1 of the jury verdict form,

as phrased, essentially provided that the estate could not prevail in this action

unless the jury found that Mrs. Gloger had primary lung cancer:

      1. Was Irene Gloger addicted to cigarettes containing nicotine,
         and if so, was such addiction a legal cause of lung cancer and
         death?

                                  YES ____ NO _____

            If your answer to Question 1 was NO, please proceed no
      further except to sign and date this verdict form and return it to the
      courtroom. If your answer to Question 1 was YES, please proceed to
      Question 2.

Given these circumstances, we cannot conclude that the error was harmless, i.e.,

that there was no reasonable possibility that the error did not contribute to the

substantial jury verdict entered in favor of the estate in this case.

      III.   CONCLUSION

      Because the subject out-of-court statements were not introduced to prove

that Irene Gloger’s cancer originated in the lung, but to demonstrate the emotional

impact on Mr. Gloger of hearing, for the first time, that his wife had cancer, the


                                           18
statements were not hearsay. Such evidence was both relevant and material in this

wrongful death action to support Mr. Gloger’s damages claim and was, therefore,

admissible. Nevertheless, under the particular circumstances of this Engle progeny

case, the out-of-court statements were subject to limitation under section 90.403

because the limiting instruction given by the trial court did not effectively diminish

the significant prejudice to the tobacco defendants of the jury’s hearing that Drs.

Sinkovics and Altemose had diagnosed Mrs. Gloger with primary lung cancer

caused by smoking cigarettes.

      We find that the trial court abused its discretion by failing to limit Mr.

Gloger’s testimony (i.e., rephrasing the term “lung cancer”) in a manner that would

eliminate the substantial prejudice to the tobacco defendants, without altering the

jury’s understanding of the testimony or diminishing the relevance for which it was

offered. This error was not harmless. Accordingly, we reverse the final judgment

and remand for a new trial to be conducted consistent with this opinion.

      Reversed and remanded.




                                         19
