Punitive damages are a “game changer” in litigation. Gattorno v. Souto, 390 So. 3d 134, 137 (Fla. 3d DCA 2024). They are “reserved for truly culpable behavior and are intended to express society’s collective outrage.” KIS Grp., LLC v. Moquin, 263 So. 3d 63, 65–66 (Fla. 4th DCA 2019). Because punitive damages are imposed to punish and deter a defendant’s wrongdoing, juries are permitted to consider a defendant’s financial worth in determining a sufficient punitive damage amount.
But the Florida Legislature became concerned with “baseless punitive damage claims interposed to harass or increase settlement value.” Neill v. Gulf Stream Coach, Inc., 966 F. Supp. 1149, 1154–56 (M.D. Fla. 1997). So it enacted section 768.72, Florida Statutes, to protect defendants from meritless claims and unwarranted financial worth discovery.
Under that statute, punitive damages claims are not “permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1). Only then, can financial worth discovery commence. The statute also “heightened the trial-level standard of proof for punitive damages from the common-law ‘greater weight of the evidence’ test to ‘clear and convincing evidence.’ ” Perlmutter. (discussing section 768.72(2), Florida Statutes).
Until recently, Florida’s district courts were split on the proper interpretation of the statute. Some thought it required the trial court to make “a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.” Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). Other districts did not think the statute required the court to apply the “clear and convincing evidence” standard when assessing the reasonableness of a claimant’s evidentiary submission. See, e.g., Deaterly v. Jacobson, 313 So. 3d 798 (Fla. 2d DCA 2021); Estate of Despain v. Avante Group, Inc., 900 So. 2d 637 (Fla. 5th DCA 2005).
The district courts also disagreed on an interrelated topic: whether the trial court must consider the evidentiary showing by all parties (i.e., evidence “in the record” and evidence “proffered by the claimant”), or just the claimant’s evidence.
Enter the Florida Supreme Court. In Perlmutter, the Supreme Court unanimously held that “in reviewing the sufficiency of the evidence under section 768.72(1) at the pleading stage, the trial court should not apply the clear and convincing evidence standard of proof.” 51 Fla. L. Weekly S163 (Fla. June 11, 2026). Instead, the Supreme Court found, the trial court is to apply a “more straightforward and less technical analysis” and simply evaluate whether a claimant has shown reasonable evidentiary support for a proposed punitive damages claim. Id.
The Supreme Court also held that, in making this determination, the trial court “should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent.” Id.
The Brownlee Law Firm served as counsel for the Florida Justice Reform Institute, the Chamber of Commerce of the United States of America, and the American Tort Reform Association, submitting amicus briefing on their behalf. For additional information about amicus briefing, click here.
Where does this leave Florida litigants? In short, it means that when a claimant moves for leave to amend to add a punitive damages claim, the trial court will evaluate only the claimant’s evidence to determine whether it presents a reasonable evidentiary basis for the underlying facts it seeks to plead. Defendants must be ready to defend without the benefit of a counter-proffer or a request for consideration of the “clear and convincing evidence” standard.