Have you noticed an influx of hearings in Florida to add punitive damages to complaints lately? Here's why: Asserting a punitive damages claim is a strategy often utilized by plaintiffs to obtain financial discovery from commercial defendants to which they would otherwise not be entitled. The Florida Supreme Court amended Florida Rule of Appellate Procedure 9.130 regarding punitive damages in January of this year, and the changes will take effect on April 1, 2022. With the amended rule, there will be fewer appellate hurdles in place, allowing for an immediate (interlocutory) appeal of nonfinal orders granting or denying a motion for leave to amend a complaint to assert punitive damages.

Before this recent amendment, a defendant in Florida could not immediately appeal an order granting a motion for leave to assert a claim for punitive damages because the only choice was a petition for writ of certiorari, which limited the review to procedural grounds.

Now the Florida District Courts of Appeal will be able to evaluate whether the substantive evidence in the case supports a claim for punitive damages before the defendant is forced to engage in costly and burdensome financial discovery.

The recent decision, however, does not set forth the applicable standard of review, which could be abuse of discretion, the standard applicable to errors in allowing amendments to complaints generally. Abuse of discretion is a difficult standard to satisfy on appeal, so either party could face an uphill battle.

At a minimum, an appeal is likely to stay financial discovery related to the punitive damage claims, which is helpful to the defense. Further, an interlocutory appeal is likely to cause delays to the progress of the case and a factor plaintiffs will consider and perhaps be more cautious in attempting to pursue punitive damages. The amendment to Florida Rule of Appellate Procedure 9.130 can be seen as a positive development for commercial defendants.