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Edwards adv. Epstein
Case No.: 502009CA040800XXXXMBAG
Second Renewed Motion for Leave to Assert Claim for Punitive Damages

Section 768.72 provides for the amendment of a complaint either through evidence in the
record or "proffered by the claimant." As the statute suggests, a proffer of evidence in support
of a punitive damage claim is sufficient and a formal evidentiary hearing is not required. See
Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996), rev. dismissed, 699 So.2d 1372
(Fla. 1997); Solis v. Calvo, 689 So.2d 366, 369, n.2 (Fla. 3d DCA 1997). In fact, a hearing is not
even required provided the trial court identifies the filings of the parties and indicates that its
decision to grant the motion is based upon a review of the file and the respective documents
filed.

The United States District Court for the Middle District of Florida has spoken clearly on
the nature of a proffer in support of a motion to amend to assert a claim for punitive damages in
Royal Marco Point I Condo. Ass'n, Inc. v. QBE Ins. Corp., 2010 WL 2609367 (M.D. Fla. June
30, 2010). As the Court stated:

It is important to emphasize, at the outset, the limited nature of the review a court
may undertake in considering the sufficiency of an evidentiary proffer under Fla.
Stat. §768.72. Courts reviewing such proffers have recognized that "a 'proffer'
according to traditional notions of the term, connotes merely an 'offer' of
evidence and neither the term standing alone nor the statute itself calls for an
adjudication of the underlying veracity of that which is submitted, much less for
countervailing evidentiary submissions." Estate of Despain v. Avante Group,
Inc., 900 So.2d 637, 642 (Fla. 5th DCA 2005) (quoting State of Wisconsin
Investment Board v. Plantation Square Associates, Ltd., 761 F. Supp. 1569, 1581
n. 21 (S.D. Fla. 1991)).

Therefore, "an evidentiary hearing where witnesses testify and evidence is offered
and scrutinized under the pertinent evidentiary rules, as in a trial, is neither
contemplated nor mandated by the statute in order to determine whether a
reasonable basis has been established to plead punitive damages." Id. (collecting
cases).

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