.

Matthew Gray is a member of the Casualty Department, with multiple years of experience focusing his practice on defending numerous insurance carriers in disputes involving New York Personal Injury Protection claims. Matthew is also a member of the Fraud/Special Investigation Practice Group, where he defends against intentional/staged losses, as well as medical provider fraud. He has experience conducting Examinations Under Oaths/Depositions. Matthew also has expansive experience with motion practice, declaratory judgments and trial preparation/management. Matthew has played a key role in establishing the SIU Dec Action team, guiding and collaborating with his colleagues in the drafting of several Declaratory Judgement (DJ) actions.

Matthew has experience with the litigation, mediation and arbitration of matters in multiple practice areas. Specifically, Matthew focuses on fraud investigation, primarily dealing with evaluating both medical provider fraud and intentional/staged losses. Matthew has had great success for his clients and has been often recognized for his successful in both the Court room, as well as in arbitration matters.

In addition to personal injury protection claims, Matthew handles insurance defense litigation for bodily injury cases. He defends premises liability and automobile liability suits, as well as first-party property damage matters.

Prior to joining Marshall Dennehey, Matthew began his practice in No-Fault at a boutique law firm, where he managed hundreds of PIP matters. Additionally, he developed experience litigating and arbitrating all aspects of insurance defense claims matters.

Matthew earned his juris doctor from the Touro College Jacob D. Fuchsberg Law Center in 2015. While at law school, he served as an ambassador and then, Secretary of the Student Bar Association, as well as President of the Columbian Lawyers' Association. He also was a competing member of Touro Law Center's Mock Trial Team. Matthew was named a Touro Public Interest Law Fellow in 2013 and 2014, respectively. Matthew earned a B.A. in English and a M.A. in English Literature, with a specialization in Dramatic Literature from St. John's University.

He is admitted in the state of New York.

    • Touro University Jacob D. Fuchsberg Law Center (J.D., 2015)
    • St. John's University
      • M.A., 2012; B.A., magna cum laude, 2011
    • New York, 2015
    • The Best Lawyers: Ones to Watch©, Insurance Law (2026)
    • The Best Lawyers: Ones to Watch®, Personal Injury Litigation - Defendants (2021-2026)
    • New York Metro Super Lawyers Rising Star (2023-2026)
    • Successfully defended, submitted post-hearing arguments and secured dismissal of a New York no-fault arbitration matter. The applicant, a major medical provider, filed an arbitration matter in the total amount of $361,601.62, claiming our client owed it for the claimant's unpaid medical bills following a major motor vehicle accident. The claimant had been involved in the motor vehicle accident and sought payment for medical treatment for a series of treatments rendered while hospitalized, post-accident. Counsel for the medical provider argued that the medical billing was never properly nor timely denied, therefore payment of the claims was overdue. However, We successfully argued at the arbitration hearing, that herein, Applicant’s client failed to provide the requisite statutorily required medical assignment of benefits form, assigned the hospital the right to sue on behalf of the injured party. After arguments were heard by the Arbitrator, the Arbitrator ordered post-hearing submissions to be submitted by both sides, to be submitted within the week. We researched, drafted and submitted said post-hearing submission, resulting in the Arbitrator ruling in our client’s favor, and thereby dismissing the matter based on the Applicant’s total failure to submit the requisite form, saving the client hundreds of thousands of dollars.  
    • Successfully secured full dismissal of a New York no-fault litigation matter. The plaintiff, a major medical provider, filed suit in Suffolk County's 3rd District Court in the total amount of $14,999.99, claiming our insurance company client owed it for the claimant's unpaid medical billing.  The claimant was involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that, since the billing was never paid by the insurer, it was due in full—despite the same matter having been successfully argued and won in arbitration in June of 2021. However, after successful arguments and motion practice, and without significant opposition by plaintiff's counsel, the matter was dismissed, in full, by the court, which found that both res judicata and collateral estoppel applied. Therefore, the court found in full favor of our client and dismissed the suit and its accompanying complaint.
    • Successfully appealed, argued and obtained a full dismissal of joint arbitration matters filed against our client, when remanded to the lower arbitration forum. The applicant filed two, separate, yet related, arbitration matters claiming our client, an insurance carrier, owed them for unpaid medical bills of the claimant. The claimant was supposedly involved in a motor vehicle accident on July 25, 2018, and sought payment for medical treatment provided from December 20, 2018, through April 5, 2019. Applicant's position was that payment was owed as the independent medical examination that found a lack of medical necessity was improper and weak, and because the policy of insurance was not yet exhausted. At the lower forum, the applicant was successful due to the arbitrator's misapplication and misinterpretation of the NYS No-Fault Regulations. However, on Master Appeal the Master Arbitrator found in our clients favor after the submission of briefs and remanded the hearing to the lower forum for an evidentiary hearing before a different arbitrator. That arbitrator found in full favor of our client and denied the applicant's claims on both matters.
    • Successfully defended an arbitration matter filed against our client, an insurance carrier. The applicant filed an arbitration matter claiming our client owed him for the unpaid medical bills of the claimant, in the total amount of $20,772.99. The claimant was purportedly involved in a motor vehicle accident on August 12, 2016, and sought payment for medical treatments/surgery provided to the claimant on January 11, 2018. It was argued that our client owed the applicant's client for the medical services, despite New York state being the improper venue for hearing such a claim. The policy of insurance was written in Pennsylvania, the accident occurred in Pennsylvania, and the claimant lived in Pennsylvania. The provider of the medical services, the applicant, as well as the medical facility where the services were rendered were located in New Jersey. There was no apparent connection to the State of New York, other than the fact that the surgeon performing the surgery maintains an office there. The arbitrator agreed that this single contact with the was insufficient to confer jurisdiction on the New York State No-Fault system to adjudicate these no-fault claims in the State of New York. As such, the arbitrator found in full favor of our client and denied the applicant's claims, in its entirety.
    • Successfully argued and obtained a full dismissal in an Arbitration matter filed against our client, an insurance carrier. A surgical center in New Jersey filed an arbitration matter in the amount of $217,370.39.15, claiming our client owed it for unpaid medical bills of the claimant. The claimant was involved in a motor vehicle accident on July 15, 2017 and sought payment for medical treatment. The surgical center's position was that the entire amount was owed as it was not properly paid upon the initial submission of the billing to our client. However, after arguments were presented at the time of the arbitration hearing, our client’s policy of insurance was found to be completely and properly exhausted. Therefore, the Arbitrator found in full favor of our client, and denied the Applicant's entire $217,370.39.15 claim.

Results

View all

Successfully Fully Discontinued a New York No-Fault Action

We were successful in having a New York No-Fault (PIP) action fully discontinued, with prejudice. The plaintiff, a major medical provider, filed suit in Kings County Civil Court in the total amount of $25,805.85, claiming our client owed it for the claimant’s unpaid medical billing. The claimant had been involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that, since the billing was never paid by the insurer, it was due in full—despite the fact that the same matter had previously been fully exhausted and was processed/handled in full compliance with the applicable medical fee schedule(s). While there were evidentiary issues in our client’s case, our arguments and position were strong. After negotiations and arguments, plaintiff’s counsel acquiesced to a full discontinuance of the matter, with prejudice.

Dismissal Obtained in a Medical Billings Claim Matter

We obtained full dismissal in a medical billings claim against our insurance carrier client in a New York No-Fault/PIP Action. The plaintiff, a major medical provider, filed suit in Kings County Civil Court in the total amount of $22,610.79, claiming our client owed it for the claimant’s unpaid medical billing. The claimant had been involved in a motor vehicle accident and sought payment for medical treatment. Counsel for the medical provider argued that, since the billing was never paid by the insurer, it was due in full—despite the fact that the same matter had previously been fully exhausted and denied on similar grounds. While there were evidentiary issues in our client’s case, our arguments and position were strong. After negotiations, plaintiff’s counsel acquiesced to a full dismissal of the matter. Thereby, our client was absolved from any fiscal liability in this action.

Thought Leadership

View all

SIU Spotlight

The Wild West on the East Coast: How the Fix Known as “No-Fault” Turned New York Into the O.K. Corral

July 1, 2024

Howdy! Did y’all come to hear about the virtues and triumphs of New York State No-Fault? Well sit on down and warm yourself by the fire, while I tell you the story of how a new little law gave way to greed, corruption and the white knights, known as Defense Counsel! Introduced in 1974, New York State’s No-Fault insurance system, controlled under Regulation 68 or 11 NYCRR Part 65, otherwise known as “the Regs,” quickly became the foundation of how auto accidents were dealt with and how compensation was disturbed. The Regs were meant to provide quick and efficient coverage for medical expenses, lost wage, and other such claims for reimbursement post-auto accident: all without the need for drawn-out legal battles. However, over the decades since its inception, and with the many amendments to the Regs, multiple dusty trails for deceptive practices have been uncovered. Originally what was intended as a streamlined method to process claims and have parties taken care of has become a standoff of the highest order. No-Fault law was created with certain tenets in mind which aim for the swift processing of claims. Two such tenets are that (1) claims be processed with haste and (2) the parties involved work together, amicably. While the basic and establishing principle of No-Fault law was always to ensure that auto accident victims received timely compensation for medical bills, etc., those who have taken on the practice seem to break into one of two groups: the lawmen who try to protect the public (Defense Counsel) and the outlaws trying to disturb the peace (Plaintiff’s Counsel). While it may be true that those seeking medical treatment are oft seen and treated without haste or worry, the trouble starts when the bad eggs from the medical field roll into town, enlisting Plaintiff’s Counsel firms to perpetrate their nefarious plans. For every provider properly billing and treating patients, you will find a bad actor hiding in the herd, causing chaos and frustration throughout. One may ask themselves, “But, how can just a few bad actors affect an industry?” In the simplest of terms, any Defense Counsel worth their boot leather would say, “The premiums.” You see, it is our job to protect our clients’ interests. When our job is done well, we are able, as Defense Counsel, as lawmen, to keep the bad providers out of our town. By analyzing the cases we are assigned, and by recognizing the tell-tale signs of fraud and overbilling, we protect our clients from paying out claims they would not otherwise have to; thus, saving them in exposure. This is repaid to the good citizens of our settlement, to those who enlist the protection of the insurance carriers, by allowing them to have affordable premiums and, in turn, allows them to feel protected by the coverages they pay for. While No-Fault may have been started with good intentions, it has taken a handful of bad eggs, acting with greed in mind, to try and exploit the entire system. For as good as Defense Counsel may be, those who seek to defraud our clients are just as skillful. Our adversaries know how, and when, to file suit against the insurance carriers. They know in what venue and in what order to file their suits. They have adapted to the amendments in the Regs, learned each carrier’s style of doing business, and they know how, and when, to best overload each carrier. They know that they can file a case on the last day before the statute of limitations (six years from when the claim accrues) and still have many years before any court will take up the case. These methods cost the carriers hundreds of millions of dollars annually, resulting in higher premiums and a lower quality of medical care.  On one side, the bad-acting providers, seeking to force cases to trial, overburdening the carriers and courts with superfluous motion practice or, even as insidious, failing to respond to Defense Counsel’s requests to resolve the matter in a timely fashion. The other side, the Defense Counsel, tired, ever-fighting, working to make the town safe for those just seeking a better quality of auto insurance coverage. Effectively, we are locked in a daily standoff. However, it does feel like a victory whenever we can resolve a case. We close a case and get a little closer to what No-Fault is really about. Matthew is a member of the Fraud/Special Investigation Practice Group, where he defends against intentional/staged losses, as well as medical provider fraud. He has vast experience conducting Examinations Under Oath/Depositions.   SIU Spotlight, Issue 1, Vol. 1, July 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

News

View all

Firm Highlights

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require 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.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: 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. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association