As we’ve discussed before, Florida’s offer of judgment statute has real teeth. Under the Florida statute (Fla. Stat. § 768.79), a defendant can recover its costs and attorney’s fees if the other side rejects the offer and ultimately recovers 25% less than the amount of the offer.  The risk of paying the defendant’s attorney’s fees ought to be a meaningful deterrent to meritless claims.

In today’s decision, Jacob v. Mentor Worldwide LLP, 2025 WL 3134227 (M.D. Fla. Nov. 7, 2025) (rep. & rec.), the defendant made an offer of judgment under the Florida statute. But that didn’t deter the pro se plaintiff from pursuing her claim that a ruptured breast implant caused her to develop lupus-like symptoms.  As we blogged about here, following a lengthy and tumultuous procedural history, the defendant ultimately prevailed on summary judgment.  Prior to moving for summary judgment, the defendant made an offer of judgment of $3,500, which was the amount of its limited warranty for implant ruptures. After obtaining summary judgment, the defendant moved for its costs and attorney’s fees.    

In its report and recommendation, the court determined that the offer of judgment was made in compliance with the Florida statute. Given procedural compliance, the only defense to enforcement of the offer would be if it was not made in good faith. The pro se plaintiff (a former neurologist), did not raise good faith as a defense, but the court considered it anyway.

The question of the good faith of an offer of judgement is “‘determined solely by the subjective motivations and belief of the offeror.’”  Id. at *3 (quoting Wagner v. Brandenberry, 761 So. 2d 443, 446 (Fla. Dist. Ct. App. 2000)). When it made the offer, the defendant had determined that the plaintiff’s expert did not offer any opinion on the defendant’s compliance with premarket approval specifications, and that without such testimony the plaintiff would not be able to prove her claims. (It took a motion for reconsideration and several years, but the defendant’s position ultimately proved correct).  Given the “subjective motivations” of the defendant considering the plaintiff’s lack of PMA expert opinion, the court concluded that the defendant’s offer had a “reasonable foundation” and was made in good faith. Id.  

The court’s holding entitled defendant to its attorney’s fees from the date of the offer through the date of the final judgment. That period covered almost three years of litigation and could have exposed the pro se plaintiff to very significant liability for the defendant’s attorney’s fees. Instead of seeking its full amount of attorney’s fees, however, the defendant requested only its fees from the date it made the offer of judgment in 2022 to the date it filed its motion for summary judgment in 2023. The defendant estimated that those fees totaled approximately $250,000.

The defendant tried to be efficient and economical in its defense, and it convinced the court to bifurcate the questions of manufacturing defect and medical causation. That gave the defendant the ability to move for summary judgment early based on preemption, and it should have prevented the need for discovery on medical causation. Instead, the district court initially denied the defendant’s summary judgment motion and then took a long time to rule on the defendant’s motion for reconsideration—when it ultimately granted and dismissed the case based on preemption. During the delay, the defendant had to proceed with multiple depositions of plaintiff’s healthcare providers.  Perhaps the defendant’s decision to limit its fee request to the narrower period between the offer and filing for summary judgment was the recognition of the intended cost-effectiveness of the bifurcated approach.  Whatever the motivation, the defendant’s self-imposed limitation for its fee request should cast its final numbers in a positive light.  

The court endorsed the narrower relief requested by the defendant and directed the defendant to file a supplemental motion on the reasonable amount of its attorney’s fees. Id. at *8-9.  The recovery of $250,000 in attorney’s fees isn’t chomp, er, chump-change.