In medical malpractice litigation, Respondent and Plaintiff Todd Copeland, on behalf of Kyonda Hackshaw and her children, moved for leave to amend the pleadings to allege gross negligence and entitlement to punitive damages from Petitioners/Defendants Birdie M. Varnedore, M.D., and Edgardo M. Rodriguez, M.D. In doing so, Copeland failed to attach a proposed amended complaint to his motion and failed to file said amended pleading before the motion’s hearing. Varnedore, et al., v. Copeland, 2017 WL 539884, at 2 (Fla. 5th DCA Feb. 2017). At the five and a half hour hearing of his motion, Copeland relied on record evidence for his arguments, but also made new oral representations concerning expected testimony at trial. Id. at 3. And after some ostensibly insufficient verbal back and forth on what was to be contained in Copeland’s amended complaint, Copeland eventually produced at the hearing a copy of his amended pleading. Id. at 2.
The doctors strenuously objected to Copeland’s failure to serve his amended complaint prior to the hearing and to his new evidentiary proffers. Id. at 1. The objections were of limited impact, as the trial court granted in part Copeland’s motion as to certain defendants, while denying the motion as to others. Id. Yet, the trial court failed to provide a basis for its ruling, with which the 5th DCA took exception, remanding the matter and providing the trial court with very specific procedural instructions for the next hearing.
In its order remanding the matter, the 5th DCA relied upon, and carefully noted the history of, Section 768.72 of the Florida Statutes (2015) and Florida Rules of Civil Procedure, 1.190. Id. at 2. Section 768.72(1) states that a claimant “may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure,” but that “no claim for punitive damages shall be 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.” Rule of Civil Procedure 1.190(a) states that any motion seeking leave to amend shall attach the proposed amended pleading; while, Rule 1.190(f) states that a motion for leave to amend to assert a claim for punitive damages “shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages.” Subsection (f) concludes by noting that the motion can be filed prior to the supporting evidence or proffer, but that each “shall be served on all parties at least 20 days before the hearing.”
Copeland argued that Rule 1.190(f) did not require a plaintiff to attach a proposed amended complaint to its motion. Copeland, 2017 WL 539884, at 2. While technically correct that subsection (f) says nothing about an attached pleading, Copeland willfully ignored subsection (a) of Rule 1.190, a point driven home by the appellate court’s citation to Amends. To the Fla. R. of Civ. P. (Two Year Cycle), 858 So.2d 1013, 1013-14 (Fla. 2003) (the “Amendments”). In the Amendments, the Florida Supreme Court modified Rule 1.190(a) to make it consistent with Rule 1.070(j), which had been modified to require a proposed amended pleading be attached to any motion for leave to amend a complaint. Id. at 2 (citing Amendments, supra). The Supreme Court then separately adopted subsection (f) of Rule 1.190 to serve as the evidentiary and notice requirements for motions seeking leave to amend to allege a claim for punitive damages. Id. (citing Amendments, supra, at 1014-15). Because the Supreme Court had modified and adopted subsections (a) and (f), respectively, at the same time, and each had a separate, specific purpose for the subject motions, the 5th DCA effectively determined that subsection (a) was a rule of general application to all motions for leave to amend; whereas, subsection (f) was a rule of specific application to those motions seeking leave to amend to claim punitive damages. See Id. In other words, motions for leave to amend to allege punitive damages were to conform to both subsections (a) and (f) of Rule 1.190.
The appellate court also justified its order on the “trial court as gatekeeper” function. Id. In this role, the trial court must be able to consider “whether the proposed amended complaint actually sets forth a claim…” supporting a punitive damages allegation. Id. “Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim.” Id. Because Copeland did not file his amended complaint, the trial court was forced to exact the new allegations from Copeland during oral arguments. Id. Only after this back and forth failed to elucidate Copeland’s new claims did Copeland produce a copy of his proposed amended complaint. The 5th DCA found this to be highly prejudicial to the doctors and their attorneys, who were left with the Hobson’s choice of ignoring the proceedings while they reviewed the new allegations or continuing in oral arguments, ignorant of what Copeland had newly pled. Id. Given these determinations, the appellate court found that “the trial court [had] departed from the essential requirements of the law” when it heard and ruled upon a motion for leave to amend, which did not attach a proposed amended complaint. Id.
But the appellate court did not stop there. Anticipating that the issues of what constituted a proffer and the timing of its disclosure would be contested, the appellate court offered its legal guidance. Again referring to the Amendments, the appellate court noted that the Supreme Court had relied on Beverly Health and Rehabilitation Services, Inc. v. Meeks, 778 So.2d 322 (Fla. 2d DCA 2000) when adopting subsection (f) of Rule 1.190. Id. at 3 (citing Amendments, supra, at 1014). In Meeks, the 2d DCA found that a plaintiff’s filing of 200 pages of exhibits on the date of the hearing of a motion for leave to amend to claim punitive damages did not satisfy the spirit of Florida Statutes section 768.72 or the requirements of due process. See Id. (citing Meeks, 778 So.2d at 325). “By adopting rule 1.190(f), the Florida Supreme Court reinforced ‘the committee’s intent of requiring the motion and the supporting evidence or proffer to be served on all parties at least twenty days before the hearing.’” Id. (citing Amendments, supra, at 1014).
The appellate court also ruled that Rule 1.190(f)’s requirement of a “proffer” applied “only to timely filed documents and exclude[d] oral representations of additional evidence made during the hearing.” Id. at 4. Because the trial court did not state its basis for partially granting Copeland’s motion, the appellate court could not determine to what extent the trial court had relied on oral proffers of evidence at the motion’s hearing, but in permitting the oral proffers, the 5th DCA held that the trial court had “departed from the essential requirements of the law.” Id.
Finally, the appellate court held that in granting any motion for leave to amend to allege punitive damages, the trial court must “make an affirmative finding that plaintiff has made a ‘reasonable showing by evidence,’ which would provide a ‘reasonable evidentiary basis for recovering such damages…’” Id. Yet, because the matter was being remanded, the appellate court refused to address the issue of whether the trial court must make detailed factual findings in support of its ruling. Id.
In summary, Florida Statutes section 768.72 and Florida Rules of Civil Procedure 1.190 should be construed strictly. Failure to conform to their requirements will likely result in a trial court’s denial of any motion seeking to amend a complaint to allege a claim for punitive damages.
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