There have been two recent District Court cases involving punitive damages in Florida. As part of previous tort reform, plaintiffs’ lawyers like myself, are forbidden from filing lawsuits asking for punitive damages at the inception of litigation. According to current Florida law, a lawyer, such as myself, must file the initial complaint for compensatory damages. After discovery has taken place, the lawyer can then file a motion before the court to add a punitive claim to the complaint and then make a proffer before the court at a hearing showing that there is a factual basis based on witness testimony and other evidence that the plaintiff has a right to punitive damages or damages that would punish a defendant, usually for willful and wanton conduct. We usually file motions where our clients have been injured due to the negligence of a drunken driver, since that obviously is willful and wanton conduct and subject to punitive damages. It is then up to the court to review that proffer and then make a decision on whether the plaintiff will be allowed to make a claim for punitive damages before a jury at a later date. As a practicing attorney, I have no problem with this, since if I cannot even convince a judge early on that I have enough evidence for punitive damages, then I certainly would fall short in trying to convince a jury in relation to that willful and wanton conduct.
Terence A. Gross
Board Certified Civil Trial Lawyer