By Richard I. Segal
Attorneys commonly believe that the right to plead punitive damages requires the moving party to satisfy a hefty burden.  This misconception arises because courts are often loathe to grant a plaintiff the right to seek punitive damages because of the potential to expose defendants to a staggering amount of liability – particularly if the defendant is found to have acted with the intent to harm the plaintiff.

However, Fla. Stat. Section 768.72, only requires that the moving party show a reasonable basis for punitive damages, pointing to evidence in the record or evidence proffered by the moving party.  Domke v. Mc-Neil-P.P.C., Inc., 939 F. Supp. 849, 852 (M.D. Fla. 1996).  The moving party is not required to prove his case in a motion for leave to amend to allege punitive damages, nor is it proper for the trial court to evaluate and weigh testimony:
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. Therefore, a proffer is merely a representation of what evidence the defendant proposes to present and is not actual evidence.
A reasonable showing by evidence in the record would typically include depositions, interrogatories, and requests for admissions that have been filed with the court. Hence, 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.
Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642 (Fla. 5th DCA 2005).  “[T]he trial court is not called upon to evaluate and weigh testimony and evidence” because “the personal judgment of the trial court is not needed to decide the sufficiency of record evidence or proffer.”  Id. at 644.  Accordingly, the standard to obtain the right to plead punitive damages is much more akin to that of a motion to dismiss, where the court does not evaluate the sufficiency of the allegations, but merely whether or not these allegations are made.
Thus, it is important for attorneys to remind the court of this standard when seeking [to plead] punitive damages.  While it is true that courts are hesitant to grant the right to allege punitive damages because of the potential liability to a defendant, current case law supports a much more relaxed standard.