EFTA00750938.pdf

00001 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 3 4 5 Plaintiff, 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vs. Case No. 502008CA028058 XXXXMB AD JEFFREY EPSTEIN, Defendant. PROCEEDINGS BEFORE THE HONORABLE JUDGE DONALD W. HAFELE July 31, 2009 8:30 a.m. - 9:05 a.m. 205 N. Dixie Highway West Palm Beach, FL 33401 , court reporter EFTA00750938 00002 1 APPEARANCES OF COUNSEL 2 3 On behalf of the Plaintiff: 4 ROTHSTEIN, ROSENFELDT & ADLER BY: WILLIAM J. BERGER, ESQ., 5 Mizner Park Office Tower Suite 675 6 225 NE Mizner Boulevard Boca Raton FL 33432 7 8 ROTHSTEIN, ROSENFELDT & ADLER 9 BY: BRADLEY J. EDWARDS, ESQ., 401 East Las Olas Boulevard 10 Suite 1650 Fort Lauderdale, FL 33394 11 12 13 On behalf of the Defendant: 14 BURMAN, CRITTON, LUTTIER & COLEMAN BY: ROBERT D. CRITTON, JR., ESQ., 15 515 North Flagler Drive Suite 400 16 West Palm Beach, FL 33401 17 18 19 20 21 22 23 24 25 EFTA00750939 00003 1 Proceedings in the Matter of vs. JEFFREY EPSTEIN. 2 July 31, 2009 8:30 3 THE COURT: Good morning, gentlemen. 4 We're here this morning on the Plaintiff's 5 motions to add punitive damages. Who will be 6 arguing on behalf of the Plaintiff? 7 MR. EDWARDS: Brad Edwards, Your Honor. 8 THE COURT: Alright, Mr. Edwards. 9 MR. EDWARDS: Do I need to go to the 10 podium or is right here fine? 11 THE COURT: Whichever you prefer. 12 MR. EDWARDS: Your Honor, with our motion 13 we filed - and, I believe, Your Honor has it - 14 the discovery that was submitted to Mr. Epstein, 15 which consists of Requests for Admissions, 16 Requests for Production, Interrogatories, as 17 well as Interrogatory responses under oath by my 18 client. 19 THE COURT: Do you have any cases that 20 speak to the presumption relative to the 21 Defendant exercising his Fifth and Sixth 22 Amendment rights during the deposition testimony 23 and/or during any other discovery? 24 MR. EDWARDS: Sure, Your Honor. 25 THE COURT: I know that Mr. Critton in his EFTA00750940 00004 1 reply memorandum indicated some conflict in 2 terms of the nature of the discussions of the 3 appellate courts relative to that issue. 4 MR. EDWARDS: May I approach? 5 THE COURT: Thank you. 6 MR. EDWARDS: I'm going to present the 7 case of Fraser vs. Security and Investment out 8 of the Fourth DCA. 9 The pertinent part, it says: "Our 10 conclusion is consistent with the prevailing 11 rule that the Fifth Amendment does not forbid 12 adverse inferences against parties to civil 13 actions when they refuse to testify in response 14 to probative evidence offered against them: the 15 amendment 'does not preclude the inference where 16 the privilege is claimed by a party to a civil 17 cause.'" 18 It skips down and says: "Such a rule is 19 both logical and utilitarian. A party may not 20 trample upon the rights of others and then 21 escape the consequences by invoking a 22 constitutional privilege - at least not in a 23 civil setting." 24 The final paragraph on that page says: 25 "Nor are we persuaded that the fact of EFTA00750941 00005 1 invocation of the privilege is irrelevant and 2 immaterial." "In the case" -- Sorry, "Mr. 3 Justice Brandeis... observed that 'Silence is 4 often evidence of the most persuasive 5 character.'" 6 Clearly, this case, out of our district 7 court, is an indication that adverse inferences 8 may be drawn. 9 Right now we are at a punitive damages 10 stage. We are not at a stage where we are 11 talking about the admissibility of evidence. We 12 are -- 13 THE COURT: Speaking only of a proffer to 14 establish punitive damages as required under 15 768.721, correct? 16 MR. EDWARDS: Exactly, and I was going to, 17 for the record, read that part of 768.721: "In 18 a civil action, there is a" -- 19 THE COURT: I think we can skip that. 20 MR. EDWARDS: Okay. 21 THE COURT: The statute speaks for itself 22 and it's a part of the record today, so why 23 don't you go ahead and proceed? 24 MR. EDWARDS: The reasonable showing, by 25 way of proffer, that there is an intentional EFTA00750942 00006 1 misconduct or gross negligence on behalf of the 2 Defendant. 3 Intentional misconduct is defined as "the 4 Defendant had actual knowledge of the wrong 5 permissible conduct and the high probability 6 that injury or damage to the claimant would 7 result and, despite that knowledge, 8 intentionally pursued that course of conduct 9 resulting in injury or damage." 10 In this case, we have intentional 11 misconduct of the worse kind. This is a case 12 that has been presented to the public through 13 public relations •eo•le for the Defendant at 14 times as 15 16 and that's not 17 18 19 20 21 22 23 24 25 the case at all. What the evidence is really going to show is that Mr. Epstein - at least dating back as far as our investigation and resources have permitted, back to 1997 or '98 - has every single day of his life, made an attempt to sexually abuse children. We're not talking about five, we're not talking about 20, we're not talking about 100, EFTA00750943 00007 1 we're not talking about 400, which, I believe, 2 is the number known to law enforcement, we are 3 talking about thousands of children, and it is 4 through a very intricate and complicated system 5 that he devised where he has as many as 20 6 people working underneath him that he is paying 7 well to schedule these appointments, to locate 8 these girls. 9 He particularly goes after a very 10 vulnerable and impressionable age group that -- 11 THE COURT: To use the quotation, "the 12 evidence will show the Defendant sought out 13 underprivileged and economically disadvantaged 14 minor females," and later go on to say, 15 "influenced them away from the typical 16 adolescent lifestyle as a result of his 17 allegedly criminal acts." 18 MR. EDWARDS: And that is exactly what 19 he's done. The age group begins as young as 20 12 years old and as old as 16 years old. There 21 will be evidence that at 16 years old, many of 22 the girls are told, "You're getting too old for 23 me." 24 He very clearly targets this specific age 25 group and has a method to this; that is, "Get EFTA00750944 00008 1 the girls inside the house and I will do the 2 rest," and he creates this God-like aura for 3 these girls and -- 4 THE COURT: Let's talk about - pardon me 5 for interrupting you - let's talk about the 6 precise claim hat are being made here. You're 7 dealing with and l'i. - they're pseudonyms 8 for purposes o t is litigation. Why don't we 9 speak to those two individuals at this juncture 10 and how the punitive damage proffer is 11 sufficient or insufficient relative to them 12 individually, please? 13 I understand the global allegations and I 14 understand the allegedly wide scale situation 15 that you're suggesting as you've alleged here, 16 but I want to go now to the precise claims made 17 by these two Plaintiffs who are in front of the 18 Court today, and whether or not that proffer is 19 sufficient to satisfy the case law, including 20 the case that Mr. Critton cited, and that is: 21 The Estate of Despain, D-E-S-P-A-I-N, vs. Avante 22 Group, Inc., which is found at 900 So.2d. 637, 23 and that was a Fifth District Court of Appeal 24 case, decided in 2005. 25 MR. EDWARDS: Yes, Your Honor, and that is EFTA00750945 00009 1 the case that states: "a 'proffer' according to 2 traditional notions of the term, connotes merely 3 an 'offer' of evidence and neither the term 4 standing alone nor the statute itself calls for 5 an adjudication of the underlying veracity...is 6 merely a representation of what evidence the 7 defendant proposes to present." 8 We can turn to the sworn Interrogatory 9 answers, No. 8, wherein III. and, similarly, 10 , in slightly different words, states: "I 11 was touched, battered, and fondled by Defendant 12 Jeffrey Epstein during the incidents described 13 in the complaint. I observed the Defendant 14 touch and fondle himself. I observed the 15 Defendant ejaculate numerous times. I was made 16 to touch the Defendant. I also observed sexual 17 acts and had sexual acts perpetrated on me by 18 Defendant Jeffrey Epstein. At various times I 19 was unclothed, as was the Defendant and others. 20 At all times material, I was a child under the 21 age of 18 years old. The Defendant also used me 22 to bring him other minor girls and he controlled 23 and brainwashed me" -- 24 THE COURT: Just a second. 25 (Telephone interruption.) EFTA00750946 00010 1 MR. EDWARDS: -- "and brainwashed me into 2 believing this lifestyle was healthy and normal 3 for a girl my age. I was a victim of various 4 criminal acts and sexual exploitation. I was 5 induced and coerced by Defendant into acts of 6 prostitution." 7 While we're on the coercion and 8 prostitution, there is a specific -- 9 THE COURT: Before you move on, that's 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 III-'s -- MR. EDWARDS: Yes, Your Honor THE COURT: -- Answer to Int ries? Why don't you read into the record Answer to Interrogatories so the record is clear? MR. EDWARDS: I apologize, Your Honor. THE COURT: Take your time. MR EDWARDS: Answer to Interrogatory No. 8 for M indicates: "My injuries are emotional and psychological and are the direct result of Defendant Jeffrey Epstein's actions. I was touched, battered, and fondled by the Defendant during the incidents described in the complaints. I observed the Defendant touch and fondle himself. I observed the Defendant ejaculate numerous times. I was made to touch EFTA00750947 00011 1 the Defendant. I also observed sexual acts and 2 had sexual acts perpetrated on me and was forced 3 to perform on me, including oral sex and other 4 activities. At various times I was unclothed, 5 as was Defendant and others. At all times 6 material, I was a child under the age of 7 18 years. I was a victim of various criminal 8 acts and sexual exploitation. I was induced and 9 coerced by the Defendant into acts of 10 prostitution." 11 THE COURT: Thank you. You were going to 12 speak to a legal point -- 13 MR. EDWARDS: Right. 14 THE COURT: -- before I asked you to read 15 into the record those Interrogatory answers. Go 16 ahead. 17 MR. EDWARDS: Where we left off was the 18 coercion into prostitution. What makes these 19 crimes so egregious is the fact that these girls 20 that we're talking about were all beginning 21 their grooming process with Mr. Epstein when 22 they're 14 and 15 and 16 years old. 23 There is a specific statute, which we have 24 filed, and a cause of action under our 25 complaint, that is under 796.09, Coercion, civil EFTA00750948 00012 1 cause of action. 2 Reading 796.09, Paragraph 1: "A person 3 has a cause of action for compensatory and 4 punitive damages" - this is in the statute - 5 "against a person who coerced them into 6 prostitution," and it goes on to define what 7 coercion means, and it is exactly what happened 8 in this case. 9 This statute allows for punitive damages 10 on a statutory level irrespective of the age of 11 the person that is coerced into prostitution. 12 THE COURT: And the coercion that you're 13 talking about are the alleged acts as between 14 these two Plaintiffs and Mr. Epstein as opposed 15 to, I think, there's something in one of the 16 Interrogatories that suggests that there may 17 have been prostitution that followed, at least 18 one of the Plaintiff's, involvement with Mr. 19 Epstein, but you're speaking solely about the 20 prostitution issues as it concerns the 21 Plaintiffs here and Epstein; is that accurate? 22 MR. EDWARDS: I believe, if I understand 23 what you are saying, I mean, in terms of 24 damages, if one of the Plaintiffs - and I can 25 represent - if one of the Plaintiffs was led EFTA00750949 00013 1 into a life of prostitution after being 2 indoctrinated into this deviant lifestyle at an 3 early age by Mr. Epstein - she was not a 4 prostitute prior to that - and I relate that 5 similar to kids of that age being brought over 6 to somebody's house that is as powerful and 7 wealthy as him and he has, let's say, cocaine on 8 the table, and they do that for three years. 9 They think it's fun at the time, but after that 10 they have this addiction that continues on. 11 This is something similar to what happened to 12 one of the clients. 13 But, yes, the coercion into prostitution 14 is something that on a statutory level already 15 allows for punitive damages, and that's 16 irrespective of the age. 17 THE COURT: Again, I'm trying to 18 understand the factual basis. There's 19 allegations that Mr. Epstein paid these young 20 ladies $200 to massage him and then subsequent 21 thereto, there was some type of alleged sexual 22 activity. Are you speaking to that specifically 23 when you're talking about the statutory remedy 24 or are you speaking about something distinct 25 from that? EFTA00750950 00014 1 MR. EDWARDS: No, that's specifically what 2 I am talking about -- 3 THE COURT: Okay. 4 MR. EDWARDS: -- Mr. Epstein paying them 5 and using their age, their economic - their lack 6 of wealth - the fact that these are poor, 7 disadvantaged children with very little parental 8 guidance to his advantage to induce them into 9 acts of prostitution. 10 THE COURT: I'll give you two minutes to 11 wrap up, please. 12 MR. EDWARDS: Okay. 13 Your liiii, while I know that we are 14 focusing on and III., there are certain 15 defenses that have been made such as, "The girls 16 were" - "we didn't know that they were over 18, 17 otherwise we wouldn't have done this," where we 18 are going to be able to show there are hundreds 19 and hundreds and hundreds of girls and none of 20 them were over the age of 18. 21 Many of these girls, including my clients, 22 told him that they were under the age of 18 and 23 he continued to do this misconduct, which is 24 exactly what the statute or what the punitive 25 damages statute speaks to when it talks about EFTA00750951 00015 1 intentional misconduct and/or gross negligence. 2 I think the record is very clear at this 3 point, especially after this proffer, that if 4 any case is deservant of punitive damages being 5 added, it's this one. 6 THE COURT: Alright. Thank you. I'll 7 give you a couple minutes to wrap up after Mr. 8 Critton finishes his argument. 9 MR. EDWARDS: Thank you, Your Honor. 10 THE COURT: Thank you. 11 MR. CRITTON: May it please the Court. As 12 the Court knows, I represent Mr. Epstein in this 13 matter. 14 Your Honor, a couple of things to start - 15 the case that Mr. Edwards cites deals with 16 inferences, deals with inferences at trial time 17 as distinct from inferences that, I believe, are 18 sufficient to carry the day, so-to-speak, in the 19 absence of other evidence with Mr. Epstein's 20 claim of Fifth Amendment privilege. As well, we 21 cited to the court cases - and I'll get to in 22 just a minute - that specifically address that 23 issue. 24 Secondly, we're not here on - and I think 25 the Court, I think, I kind of at least got the EFTA00750952 00016 1 drift is we're not here on other claims - we're 2 here on and §§§.'s claim today to add 3 punitive damages and, in fact, "Do they meet the 4 standard under the applicable statute in this 5 instance?" 6 What I think is the most striking part 7 about this - and while I believe that the 8 evidence may be - their perception, the 9 Plaintiffs' perception of the evidence - may be 10 different than ourselves, but I think the 11 evidence in this case will show, at least III. 12 and , were prostitutes before they ever met 13 Mr. Epstein, they remain prostitutes, and they 14 are still prostitutes today. 15 THE COURT: But is my role today one of 16 weighing the evidence or one of determining 17 whether or not there's a sufficient record in 18 order to allow a punitive damage claim to stand? 19 I mean, in one of the cases, I believe - 20 it's the case of State of Wisconsin Investment 21 Board vs. Plantation Square Associates, that's 22 found at 761 F.Supp 1569 - Judge Bugler 23 (phonetic) of the federal court provided an 24 excellent discussion of the distinction between 25 the proofs necessary to sustain a claim for EFTA00750953 00017 1 punitive damages even at summary judgment, much 2 less a trial, and compared that with the 3 relatively lighter burden of simply making a 4 proffer of record evidence to support a claim 5 for punitive damages. 6 MR. CRITTON: Right. 7 THE COURT: Aren't we at that stage; that 8 is, the latter stage right now? 9 MR. CRITTON: Yes, and I very well 10 understand the distinction and, I believe, I 11 understand what the Court's role is in this 12 particular instance in making that 13 determination. 14 A couple of the issues though, in 15 particular - with a camera here today, for some 16 unknown reason, showing up at this hearing - is 17 there were references to drugs, alcohol, other 18 instances that are not applicable to this case. 19 There's no pleadings on that particular issue, 20 and I'm concerned about that, is that there's an 21 attempt to jack this up in the media, as I said, 22 with the camera here today, for no other 23 hearing. It's ridiculous under the 24 circumstances, and to make all of these wild 25 allegations against Mr. Epstein for which there EFTA00750954 00018 1 is absolutely no evidentiary proof nor was that 2 submitted here in support of their proffer, I 3 did want to address at that. 4 So let me get to the heart of the issue. 5 I think the most distinguishing part of this 6 particular case that's different; that is, §§§. 7 and , is the fact that l'i. gave a sworn 8 statement to the FBI in this instance. 9 Again, there's a strong distinction. She 10 gave a sworn statement back in '05 or in '06. 11 She had - Ili. did - she had an attorney, Mr. 12 Eisenberg, it was before she had a civil lawyer 13 who's seeking millions of dollars under these 14 circumstances, and the testimony of III. at that 15 time was very significant and it flies directly 16 in the face of her "sworn testimony" or her 17 "sworn interrogatories." 18 The Court had Mr. Edwards read in ff .'s 19 answer andlipillanswer to their 20 Interrogator es as to what allegedly occurred 21 with Mr. Epstein and, "Oh, surprise," they were 22 almost verbatim, word for word, as to what 23 allegedly happened. 24 But at the time of her sworn statement to 25 the FBI, III. said on 4/24/07 - again, it was an EFTA00750955 00019 1 FBI agent and a U.S. attorney that was there at 2 the time - and she talked about going over to 3 Mr. Epstein's house. She said, "I had a fake 4 ID." She was told to make certain that she was 5 18. She told Mr. Epstein she was 18, and she 6 said it was her understanding that all of the 7 other girls that she brought for this horrific 8 experience - she continued to bring other girls 9 and go herself on a number of occasions. 10 She said that she, herself -- On Page 8, 11 it asks, "Did she ever call you?" - and I assume 12 that was someone else - and she goes, "No. I 13 gave Jeffrey my number and, I said, you know, if 14 you want me to give you a massage again, 15 basically I'm more than anxious to come." 16 On Page 9, §§§. says, "I willingly took" - 17 "so I willingly, the first time, took off my top 18 when I gave him the massage and nothing more 19 than that." 20 She goes on to say in her testimony at 21 Page 10, her sworn statement, "I said, I told 22 Jeffrey, 'I heard that you like massages 23 topless.'" 24 "And he said 'Like, yeah.' He said, 'But 25 you don't have to do anything that you don't EFTA00750956 00020 1 feel comfortable with.'" 2 "And I said, 'Okay,' but I willingly took 3 it off" - this is III. at the time. This is her 4 sworn testimony. 5 At Page 17, the police officer or the FBI 6 agent says, "and when he turned over then did he 7 touch you at all or was he just" -- Her answer 8 was, "No, I did not touch him, he did not touch 9 me. He didn't even want..." and I assume to 10 "touch you." 11 She goes on to say, "He didn't want me to 12 touch him and he didn't touch me." 13 She goes on and on in this statement, 14 III., in the statement and she says, "We had 15 fun." 16 "It was positive," on Page 18. 17 On Page 19, "You know, I would wear 18 panties. Willingly one time, because we were 19 making jokes and everything, and willingly one 20 time, I had, yes, I was totally nude, but I was 21 fine with that." 22 She talks about within the statement the 23 other girls that she brought over. Again, she's 24 testified or she gives the Interrogatory answer 25 that this was outrageous to her, but, yet she EFTA00750957 00021 1 brought other girls to experience this. She 2 says - now that she has a civil lawyer seeking 3 money damages - now "it's a bad experience." 4 Now all of a sudden, "He touched me, he did 5 these things to me." 6 She references - at least, on Page 29 of 7 the statement Judge - there's a that's 8 ref ed. I would represent to be in 9 the comPitr int, and I think we established 10 t that w en Mr. Berger and I were ariersa prior 11 motion to you. So she talks abou on Page 12 29. 13 That's when she starts saying, she says, 14 15 16 17 18 19 20 21 22 23 24 25 he." meanin Then on Page 30, "How old was "She was 17." Alright, so you have 12, 13, 14, 15, 16. You have III. saying was 17 at the time. "And what happened when came over?" She said the same thing, "She went a few times." On Page 31, III. testified under oath to the FBI and the United States attorney, "None of my girls ever had a problem. And they'd call EFTA00750958 00022 1 me. They begged me, you know, for us to go to 2 Jeffrey's house because they loved Jeffrey. 3 Jeffrey is a respectful man, he really is. I 4 mean, he all thought we were of age, always, 5 that's what's so sad about it." 6 And she goes on, Page 36, and the FBI says 7 to her, "Now, when you were working for him, you 8 were going over to Jeffrey's house to give him 9 massages, did you have a boyfriend?" 10 "Yeah." 11 "And how did your boyfriend feel about 12 it?" 13 14 15 16 17 18 19 20 21 22 23 24 25 "He was" -- 1.0. says, "He was a jealous little boy, but he didn't care, 'Bring home the bacon,'" and the statement goes on and on, Your Honor. I know you've had an opportunity read it before and I reference again today. There's clearly a distinction conflict between III., now that she has a civil lawyer and she wants money, versus at the time that she didn't want money and she gave a statement under oath to the FBI and the United States attorney's office. I recognize the Court's role in this. I recognize the standard. I recognize that both EFTA00750959 00023 1 III. and in their Answers to 2 Interrogator es have made all sorts of, what we 3 believe in part, are baseless or in large part 4 baseless allegations, but we also have sworn 5 testimony of III. on this instance. 6 We don't have it of but we have §§§. 7 testifying about her own experience under oath: 8 That it was positive; that he never used force, 9 that she willingly did a number of times 10 including giving topless massages; that Mr. 11 Epstein never touched her; that she never 12 touched him inappropriately, all she did was 13 basically give him massages; that , in this 14 instance, as well as all the other girls that 15 she took, she spoke with them afterwards, they 16 begged to go back to Mr. Epstein's home, and 17 none of them, not one of them ever complained. 18 So there's a large chasm between what is 19 now being asserted in Answers to Interrogatories 20 and mere allegations in the complaint between 21 what the sworn testimony, at least ill., was 22 under the circumstances, as it relates to 23 herself and what she was told by and other 24 girls. 25 Thank you, Your Honor. EFTA00750960 00024 1 THE COURT: Thank you. 2 Mr. Edwards, I'll give you a couple 3 minutes here. 4 MR. EDWARDS: Your Honor, I want to 5 address the statement that was made by III. to 6 the FBI and how that even came about. This is a 7 girl who, at the time of the statement, was 8 fairly unaware of the investigation against Mr. 9 Epstein, who is now, as we know, a convicted sex 10 offender. 11 An attorney showed up to her house, paid 12 for by Mr. Epstein, to represent her despite - 13 and told her that, "For your role, you could 14 possibly be implicated in some wrongdoing." 15 MR. CRITTON: Your Honor, just -- 16 MR. EDWARDS: He represent -- 17 MR. CRITTON: -- note my objection. This 18 is complete hearsay here. He was aware of what 19 was filed. He didn't file any affidavits for 20 his client in opposition. I would object to any 21 of this. 22 THE COURT: Alright. I don't want to get 23 into any of the details. I don't think it's 24 necessary at this juncture, which probably leads 25 me to my question to you; that is: Is the EFTA00750961 00025 1 weighing of evidence appropriate at this 2 juncture? 3 MR. EDWARDS: No, Your Honor, I don't 4 believe that's the standard at this stage 5 anyway, and I don't think that Mr. Critton 6 believes that either. 7 Just so the record's clear, we had nothing 8 to do with the video camera being here, although 9 that was implied. I don't know who did. I 10 don't know if it was Mr. Critton, but it wasn't 11 me. 12 THE COURT: Dan is always welcome here. 13 MR. EDWARDS: It's perfectly fine, but I 14 don't like that being on the record, that it 15 looks like I did it when I didn't. 16 THE COURT: I understand. We have a 17 record here. The official record is being taken 18 down by our fine court reporter, so. 19 MR. EDWARDS: Either way, sounds like what 20 we just heard, that the reason that punitive 21 should not be allowed here is because these 22 14-year-old girls did this willingly. 23 We know that they're 14 years old, Mr. 24 Critton knows they were 14, 15 year olds. There 25 were message pads and scheduling books in EFTA00750962 00026 1 Epstein's possession indicating the dates, which 2 would show how old those girls were, and that's 3 evidence that will be presented in this case. 4 There are serious statutes to protect 5 these kids from this kind of conduct, and these 6 second and third degree felonies were committed 7 repeatedly against them, and this is a case 8 where, at least in a civil case, punitive 9 damages are warranted, Your Honor. 10 Thank you, Your Honor. 11 THE COURT: Thank you both. I'm going to 12 grant the motion. In conformance with and 13 following the Despain case, the Court indicates, 14 in following the analysis of Judge Hugler - and, 15 by the way, that analysis of Judge Hugler is 16 commented upon on a supportive basis by several 17 appellate courts - and in the Despain case under 18 headnote 7 and 8 on Page 642 it states: "a 19 'proffer' according to traditional notions of 20 the term, connotes merely an 'offer' of evidence 21 and neither the term standing alone nor the 22 statute itself calls for an adjudication of the 23 underlying veracity of that which is submitted, 24 much less for countervailing evidentiary 25 submissions." EFTA00750963 00027 1 The Court finds that, while I appreciate 2 Mr. Critton's argument and while I appreciate 3 his submission, that essentially at this stage, 4 respectfully, he is, at this point, presenting 5 countervailing evidentiary submissions. 6 The Court further goes on in paraphrasing 7 and then directly quoting Judge Hugler: 8 "Therefore a proffer is merely a representation 9 of what evidence the defendant proposes to 10 present and is not actual evidence." Actually, 11 that's a quote from Grim vs. State, 841 So.2d. 12 455, 462, and that, I believe, is a Florida 13 Supreme Court case, even though the citation 14 itself is not complete. 15 It goes on to say importantly - and that 16 is in the Despain case - "A reasonable showing 17 by evidence in the record would typically 18 include depositions, interrogatories, and 19 requests for admissions that have been filed 20 with the court. Hence, an evidentiary hearing 21 where witnesses testify and evidence is offered 22 and scrutinized under the pertinent evidentiary 23 rules, as in a trial, is neither contemplated 24 nor mandated by the statute in order to 25 determine whether a reasonable basis has been EFTA00750964 00028 1 established to plead punitive damages," and I'll 2 admit this citation from the Fifth District 3 Court of Appeal, but, again, that is cited in 4 Despain. 5 Likewise, in Strasser vs. Yalamanchi, 677 6 So.2d. 22, which is a Florida Fourth District 7 Court of Appeal case from 1996, which is one of 8 the paradigm cases on the proffering of punitive 9 damage evidence, that states that "there was 10 reasonable basis for recovery of punitive 11 damages" can be demonstrated by either a 12 presentation of supporting evidence already in 13 the record or by a proffer of the evidence to 14 come. 15 I find that a combination of the Answers 16 to Interrogatories - I will take into account, 17 though, give little weight to the Fifth 18 Amendment arguments of Plaintiffs - but 19 certainly the Answers to Interrogatories on 20 behalf of both of these individual Plaintiffs in 21 this Court's view, and particularly in 22 conjunction with the Coercion statute relative 23 to prostitution, 796.09, would form a reasonable 24 basis to establish at least a claim for punitive 25 damages, recognizing that, again, the courts EFTA00750965 00029 1 have made clear that the proffer and the burden 2 on the moving party is much less than at summary 3 judgment or at trial, so I will allow the 4 amendments to proceed and, therefore, we do have 5 an amended complaint, so how much time will you 6 need, Mr. Critton, to respond? 7 MR. CRITTON: I just wrote to Mr. Berger 8 20 days I would like for both of them, if that's 9 agreeable with the Court. 10 THE COURT: Fine with me, as long as it's 11 fine with the Plaintiffs. 12 MR. BERGER: Yes, Your Honor. I drafted 13 an order and just showed it to Mr. Critton. It 14 just says: "Granted for reasons stated on the 15 record. Plaintiff may file an amended complaint 16 to allege a count for battery" - which is also 17 part of our motion, which was unopposed - "and 18 punitive damages. The defense shall have 20 19 days to respond." 20 THE COURT: I believe you already filed 21 the proposed amended complaint. 22 MR. EDWARDS: Yes, Your Honor. I filed it 23 with the motion. 24 MR. BERGER: I'll correct that. 25 THE COURT: You can indicate in there EFTA00750966 00030 1 MR. CRITTON: Deemed filed. 2 THE COURT: -- "the amended complaint 3 shall be deemed filed as of the date of this 4 order from today." 5 MR. BERGER: We'll draft it out there and 6 present it to the bailiff. 7 THE COURT: Not a problem. Thank you very 8 much. Gentlemen, thank you for your arguments 9 and your submissions and have a good rest of the 10 week. 11 MR. CRITTON: If they get it typed I'll 12 take a copy. 13 (The hearing concluded at 9:05 a.m.) 14 15 16 17 18 19 20 21 22 23 24 25 EFTA00750967 00031 1 2 3 STATE OF FLORIDA ) 4 COUNTY OF BROWARD ) 5 6 CERTIFICATE 7 I, Shorthand 8 Reporter, certify that I was authorized to and did 9 stenographically report the foregoing proceedings and 10 that the transcript is a true and complete record of 11 my stenographic notes. 12 13 Dated this 5th day of August, 2009. 14 15 16 17 18 19 IIIPPIRWe 20 21 22 23 24 25 EFTA00750968