August 2016 - Dade County Bar Association

ASSOCIATION
IN THIS ISSUE:
AUGUST 2016
Installation Gala
Page 2
Please Welcome Our
2016-2017 Young Lawyers Section
Board of Directors
Page 4
“A Century of Service to Miami-Dade County”
Parsing ‘True Relief ’
In Florida’s 4th District Court of
Appeal
Page 5
Will the Rise of the Machine Mark
the Fall of Med Mal?
The Constitutional Corner
Page 6
Accessing a Person’s “Digital
Estate” After Death
Legal Business Development:
3 Tips to Help You Find the Time!
Jack Hickey Presentation
Page 7
Programs and Services That
Help You GROW Your Practice,
GAIN Experience &
GIVE Back
THE DADE COUNTY BAR
BULLETIN
PRESIDENT’S
MESSAGE
Jeffrey Rynor
“The Dade
County Bar
Association
provides a unique
opportunity
for lawyers to
participate in
their community
and their
profession in
an immediate
and significant
manner.”
The Dade County Bar Association
provides a unique opportunity for lawyers
to participate in their community and their
profession in an immediate and significant
manner. It’s as easy as coming up with an
approved idea and implementing it. The joy
of actually seeing the product of your hard
work visualized in a few months and knowing
that the program has made a positive impact
on a child or on your profession, provides a
tremendous amount of satisfaction. Please
consider volunteering for a program and
organizing it.
Thank you Antonio Romano and Effie
Silva for chairing the Thurgood Marshall
Distinguished Lecture Series in which
prominent members of the legal community
discuss the latest legal developments and
winning strategies in practice areas ranging
from tax and mergers to litigation and whitecollar law, during bi-weekly programs.
Aristotle said “What soon grows old?
Gratitude.” I would like to thank a few
people for successfully implementing a new
program.
Thank you Mike Eidson for moderating
the Federal Judicial Appointments & the
JNC Lunch with Senator Bill Nelson on
September 30, 2016.
Thank you Latoya Brown, Natalie Rico
and Stephanie Casey for creating, within the
last thirty days, the “Back to School Supply
Drive” which will serve students living in
homeless situations such as a homeless shelter
or on the streets. The idea is a simple one,
provide school supplies to children who might
otherwise not be able to attend school with a
backpack, notebook or a pencil. Backpacks
with supplies can be dropped off at several
locations, so that deserving children can have
school supplies when they begin school in a
month. Please look at the Dade County Bar
Association website for more information.
Thank You Erica Weissfeld for moderating
the General Counsel & Judicial Visionaries
seminar on September 23, 2016.
Thank you Former Circuit Court Judge
Ron Dresnick for creating and organizing
the “Superstars in Trial” with the Honorable
Beth Bloom presiding on July 15, 2016.
Thank you Brad Trushin for creating the
professionalism seminar featuring Florida
Supreme Court Justice R. Fred Lewis on the
topic “Climb the Pillars to Success in Trial”
on September 9, 2016.
Thank you Former Third DCA Chief
Judge David Gersten for moderating the
Appellate Legends lunch CLE on October 28,
2016.
Thank you Yolanda Strader for organizing
the county wide legal holiday party involving
a wide range of affiliated bar groups
Thank you Miami Dade County Public
Defender Carlos Martinez, Professor
Langbein, Board of Governor members
from Dade County Steve Davis and Deborah
Baker-Egozi for volunteering to speak at the
DCBA retreat on July 9, 2016
Jeffrey Rynor
DADE COUNTY
BAR ASSOCIATION
Board of Directors 2016-2017
OFFICERS
JEFFREY A. RYNOR, President*
JORDAN A. DRESNICK, President-Elect*
STEPHANIE L. CARMAN, Vice President*
GILBERT K. SQUIRES, Secretary*
JANE MUIR, Treasurer*
MATTHEW J. RIDGELY, Executive Director
JOHNNIE M. RIDGELY, Executive Director
(1965-2006)
GROUP ONE
Installation
Gala
On June 4, 2016, the Dade County
Bar Association hosted its 100th
Annual Installation Gala at the JW
Marriott Brickell. Jeffrey Rynor was
installed as the 100th President of
the Association along with Officers
and Directors of the Association and
the Young Lawyers Section’s new
President Stuart Weissman.
DANIEL F. BENAVIDES
RASHAD M. COLLINS
FRANCESCA CORALLO
ANTONIO ROMANO
LATOYA BROWN
NICOLE HANRAHAN
Stuart Weissman, YLS President and Josh Wintle, YLS Past-President
Jeffrey Rynor, DCBA President and Jason Murray,
DCBA Past-President
GROUP TWO
JACQUELINE C. LEDON
HAROUT JACK SAMRA
GERI SATIN
YOLANDA P. STRADER
ERIC HOCKMAN
STELLA CHU
David Alschuler, Rosa Gross, and Merrick Gross,
DCBA Past-President
Jimmy Morales, Dori Foster Morales,
Suzanne Trushin, and Bradley Trushin
Jordan Dresnick, DCBA President-Elect, Congresswoman
Ileana Ros-Lehtinen and Jeffrey Rynor, DCBA President
GROUP THREE
VIVIANA P. VARELA
SUZETTE L. RUSSOMANNO
ADILIA QUINTANA-HEDGES
DOLLY HERNANDEZ
SABRINA PUGLISI
PATRICK MONTOYA
GROUP FOUR
DAVID BONHAM
JERRY D. HAMILTON
JOHN P. MURRAY
LAURA K. WENDELL
THOMAS SANTORO
BRADLEY TRUSHIN
Diane Murray, Jason Murray, Jr., Jason Murray,
DCBA Past-President, and Miles Murray
Yolanda Strader, Jawan Strader, Neil DeLeon, and Evian White
GROUP FIVE
LEONARD ELIAS
ANTONIO MARTINEZ
RICHARD C. MILSTEIN
FLORA SEFF
RICHARD LESLIE
BRIAN SPECTOR
STEVEN P. BEFERA,
ABA Delegate 2016-2017
DADE COUNTY BAR ASSOCIATION
YOUNG LAYWERS SECTION
BOARD OF DIRECTORS 2015-2016
OFFICERS
Stuart J. Weissman, President
Eric Bluestein, President-Elect
Evian L. White, Secretary
Isabella Poschl, Treasurer
Dwight Hill, Susan Trench, Judge Celeste Muir, and William Toby Muir
2015-2017 DIRECTORS
Kristen Corpion
Gregory S. d’Incelli
Rachel Mitchell Fagenson
Jenna Fischman
Zakarij Laux
Michael T. Davis
Eric Tinstman
2016-2017 DIRECTORS
David De La Flor
Lauren Doyle
Zachariah R.F. Evangelista
Stephanie Grosman
Michael Levine
Scott Merl
James M. Slater
Stuart Weissman, YLS President, Ashley Weissman, Luisa Lerman, Aida Weissman and
Chares Weissman
Robert Guinn, Paige Saperstein, and Judge Angelica Zayas
Elaina Sodehi and Eric Sodehi
BULLETIN COMMITTEE
Caitlin Trowbridge, Co-Chair
Mihai Vrasmasu, Co-Chair
123 NW First Avenue #214
Miami, Florida 33128
305-371-2220
EX – OFFICIO
Sookie Williams
2
DCBA BULLETIN | AUGUST 2016
Justine Murray and
John Murray, DCBA
Past-President
Mayra Joli and
Steve Befera, DCBA
Past-President
Judge Darrin Gayles, Ashley Collins,
and Rashad Collins
Jerry Hamilton, Lody Jean,
Judge Jason Bloch, and Marlon Hill
Jason Murray, DCBA Past-President and
Betty Jean Tucker Ferguson
Dr. Paul Pataky, Edith Osman, Debra Weiss Goodstone, and Judge Marisa Tinkler Mendez
Jeffrey Kane, Julie Kane, Andrea Hartley, DCBA Past-President, Carolina Biondo, and Garrett Biondo, DCBA Past-President
Tiffani Lee, Kelly-Ann Cartwright, Annika Ashton, and Schuyler A. Smith
Robert Zarco and Erica Weissfeld
Arva Moore Parks McCabe and Jeffrey
Rynor, DCBA President
Stuart Weissman sworn in as YLS President
by Judge George A. Sarduy
Michael Higer and Judge Mary Scriven
Installation of the Officers and Directors of the DCBA by Judge Pedro Echarte
Dade County Bar Association Past Presidents
Jeffrey Rynor sworn in as
DCBA President by Judge Thomas Logue
Steve Davis, DCBA
Past-President, and
Laurie Davis
Herman Russomanno, III,
DCBA Past-President, and
Suzette Russomanno, YLS
Past-President
Installation of the Officers and Directors of the DCBA YLS by Judge Pedro Echarte
Manuel Garcia- Linares and Alan Greer
Over 600 attorneys, judges, and guests attended the DCBA 100th
Year Celebration.
Jane Muir, DCBA Treasurer, Judge Samantha Ruiz Cohen, Deb Baker,
Judge Martin Zilber, Judge Veronica Diaz, Judge Michelle Barakat, and
Julie Kane
Mariela Malfeld and Eric Bluestein,
YLS President-Elect
www.dadecountybar.org
3
Please Welcome Our
2016-2017 Young Lawyers
Section Board of Directors
BY STUART J. WEISSMAN
As we begin
this year’s
DCBA journey,
we can only
go as far as
our incredible
YLS Board of
Directors takes
us. These
young and up and coming lawyers
are dedicated and committed to
providing for our membership and
the Miami-Dade Community. Please
take a moment and get to know your
2016-2017 YLS Board!
David De La Flor practices
intellectual property and healthcare
law with Lalchandani Simon PL,
a Miami-based boutique law firm
providing litigation and corporate
representation. He graduated
from the University of CaliforniaBerkeley School of Law, and
attended the University of Florida.
David is passionate about bettering
his community, is a huge Gators
fan, and an avid Seinfeld watcher.
He is looking forward to serving
our community through DCBA’s
YLS.
Eric Bluestein (President-Elect)
was born and raised in Miami,
Florida. He is the President of
the Law Offices of Eric Bluestein,
P.A. In addition, he is Of Counsel
to Dolan Dobrinsky & Rosenblum
LLP. Eric concentrates his practice
in personal injury, automobile
accidents, medical malpractice,
consumer fraud, premises liability,
wrongful death litigation, insurance
bad faith and commercial
litigation. Michael Davis practices
criminal law and appellate practice
at Law Offices of Benedict P.
Kuehne. He currently chairs
the Workers’ Compensation
Subcommittee, Florida Bar
Appellate Rules Committee and is a
member of the Board of Directors,
Florida Association Criminal
Defense Lawyers. Michael was
recently named “South Florida’s 40
Under 40 Black Leaders of Today
and Tomorrow” for 2016, and in
2015 received a Daily Business
Review Most Effective Lawyers
Award, Appellate. He earned his
JD and BA from Stetson University.
Evian White (Secretary), a
Miami native, graduated from
Florida International University, and
later from the University of Miami
School of Law. Evian has worked
at Legal Services of Greater Miami
since law school. As a community
lawyer, she empowers her clients to
be leaders in the face of adversity.
In the community, Evian volunteers
with Junior League Miami and is
part of Miami Fellows Class IX.
4
Isabella Poschl (Treasurer)
is a 2009 graduate of Vanderbilt
University and 2013 graduate of
St. Thomas University School of
Law. She currently works at Saleh
and Associates where she practices
immigration law. Isabella has been
on the YLS Board of Directors since
2014.
Gregory d’Incelli previously
served on the YLS executive
committee. Greg is a member
of the Florida Bar Grievance
Committee and was recently
accepted to the Florida Bar’s
prestigious Wm. Reece Smith,
Jr. Leadership Academy. Greg
practices at Weinberg Wheeler
Hudgins Gunn & Dial focusing
on the defense of catastrophic
personal injury and wrongful
cases, premises liability, products
liability, construction law and
general personal injury. He is a
2008 graduate of the University of
Miami School of Law and a 2004
graduate of Dartmouth College.
Kristen A. Corpion is an
associate at Ver Ploeg & Lumpkin,
P.A., where she represents
policyholders whose insurance
providers have delayed or denied
claims, failed to defend them against
lawsuits, or acted in bad faith.
Kristen dedicates her time to serving
the South Florida community
through her involvement in various
local organizations.
Lauren Doyle is an associate
at Markus/Moss, PLLC, focusing
on criminal defense litigation. She
recently tried her first federal case
and obtained a not guilty verdict.
Lauren was chosen to be on the
Young Lawyers Committee of the
Florida Association of Criminal
Defense Lawyers. Lauren is a cum
laude graduate of the University of
Miami School of Law.
DCBA BULLETIN | AUGUST 2016
Zachariah Evangelista is a
business, corporate attorney at Ser &
Associates. Zachariah also dedicates
a portion of his practice to assisting
nonprofit organizations with legal
needs. Zachariah is on the advisory
board of the Miami Sci-Fi Film
Festival. He is a pro bono lawyer for
Dade Legal Aid and was selected to
the inaugural Legal Aid Leadership
Academy. Zachariah received his JD
from Florida International University
College of Law in 2011, with honors.
bankruptcy and restructuring,
workouts, creditors’ rights, and complex
business litigation. Zak has represented
national lending institutions and
loan servicers, commercial landlords,
receivers, and bankruptcy trustees
at the trial and appellate levels and
through post-judgment execution.
Outside the legal sphere, Zak is an
epicurean, an avid indoor cycler, and
he enjoys playing classical piano.
Michael Levine is an attorney
at Stewart Tilghman Fox Bianchi &
Cain where he represents plaintiffs in
catastrophic injury, wrongful death, and
class action cases. Previously, Michael
served as law clerk for Judge Paul C.
Huck. Michael is a board member
of the Jewish Community Services
Alliance and Legal Services’ Young
Professionals Committee.
Rachael Mitchell Fagenson is
an associate at Foreman Friedman,
P.A. where she handles a wide
variety of maritime claims, including
claims involving personal injury
and wrongful death, sexual assault,
products liability, and medical
negligence, in state and federal court,
as well as in arbitration proceedings.
Her practice primarily focuses on the
representation of cruise lines, vessel
owners, cargo lines, tour operators
and other entities in the hospitality,
shipping and tourism industries.
Scott Merl is the owner and
founder of Scott Merl, P.A, focusing
on Personal Injury, Family Law, and
Bankruptcy. Scott graduated from the
University of Florida and then the
University of Miami School of Law
in 2011. Since 2014, Scott has served
as a Director of the DCBA YLS. Scott
has also been involved in the Broward
County Bar Association, University
of Miami Young Alumni Committee,
and University of Florida’s Heavner
School of Business’ Florida Leadership
Academy.
Jenna Fischman will clerk for
Federal Magistrate Judge Jonathan
Goodman in August. Currently,
Jenna is a commercial litigator at
the Fischman Law Firm, P.A. Jenna
received her J.D. from UF, where she
was a Notes and Comments Editor
for the Florida Law Review, and her
B.A. from Northwestern University.
Jenna has been a DCBA board
member since 2013 and has chaired
several committees. Her innovative
ideas and leadership efforts have
increased sponsorship to the annual
Judicial Reception and Bids for Kids
Event.
James M. Slater is an attorney
and the Co-Project Director of the
Homeless Legal Advocacy Project
at Legal Services of Greater Miami,
Inc. (LSGMI). At LSGMI, James
represents low-income clients, many of
whom are homeless, in administrative
proceedings, and both state and
federal court. His primary focus is
on helping these clients access and
preserve government benefits. James
also represents individuals and families
regarding special education matters.
Stephanie Grosman has worked
at Dade Legal Aid since 2006 and
is currently a Family Law Staff
Attorney. Ms. Grosman serves as
a volunteer Guardian Ad Litem,
and mentors volunteer attorneys
through Put Something Back. She is
a founding fellow of the Inaugural
Class of Dade Legal Aid’s Leadership
Academy, and is currently serving
as its coordinator. She earned her
JD from Stetson University College
of Law, and her BA from Barry
University.
Zakarij Laux is an associate
at Bast Amron LLP where he
concentrates his practice in
Eric Tinstman, a plaintiff ’s trial
lawyer focused on medical malpractice
and personal injury, is the President of
the Tinstman Law Firm, P.A. He has
personally tried or been part of trial
teams on seven trials, including a fiveweek trial. Eric has obtained verdicts
of $776,000 and $11,000,000, and
has worked on other cases involving
verdicts of over $40,000,000. Eric
has been named a Rising Star Super
Lawyer for 2015 and 2016.
Stuart J. Weissman focuses his
practice on medical malpractice, products
liability, and commercial litigation matters by
representing those individuals who have been
catastrophically harmed and injured as well as
the families of those who have lost a loved one.
Mr. Weissman can be reached at stuartw@
ratzanlawgroup.com.
Parsing ‘True Relief’
In Florida’s 4th District
Court of Appeal
BY CRISTINA P. CAMBO
It is well settled
in Florida
that offers
of judgment
under Fla. Stat.
§ 768.79(1)
apply only to
“civil action[s]
for damages.”
Accordingly, an
offer of judgment that seeks to resolve
all claims when a suit involves both
monetary and non-monetary causes
of action is generally deemed to be
invalid.
However, the Fourth DCA has
carved out an exception to this rule
in the consolidated appeal of MYD
Marine Distributor, Inc., et al, v.
International Paint LTD., et al, 187 So.
3d 1285 (April 13, 2016). Specifically,
the Fourth DCA held that an award
of attorney’s fees under Fla. Stat. §
768.79(1) is enforceable, despite the
presence of a claim for non-monetary
relief, if the “true relief ” sought in
litigation is monetary.
By way of background, MYD filed
suit against International Paint alleging
that they violated state antitrust
laws by conspiring to oust MYD as
a distributor of a certain brand of
yacht paint and in doing so, “fixed”
the market price of the paint. The
complaint alleged several causes of
actions for conspiracy in restraint of
trade and breach of contract. With
respect to the conspiracy in restraint of
trade counts, MYD asked for damages,
costs and fees, and “permanent
injunction relief enjoining Defendants
from continuing to engage in their
illegal conspiracy.” International Paint
ultimately obtained a summary final
judgment, which was affirmed. MYD
Marine Distrib., Inc. v. Int’l Paint Ltd.,
151 So. 3d 1263 (Fla. 4th DCA 2014).
Following the entry of summary
judgment, International Paint moved
for its costs and attorney’s fees based
on rejected offers of judgment it
served on each of the MYD entities.
Each offer of judgment contained the
following limiting language:
The Total Amount of this Proposal
will be paid by [International Paint] to
[MYD] to settle all claims for money
damages asserted or that could have
been asserted by [MYD] against
[International Paint] in the abovecaptioned lawsuit. This Proposal does
not attempt to resolve [MYD’s] claims
for injunctive relief, and if accepted,
the claims for money damages will be
resolved, but the claims for injunctive
relief will remain pending.
At the hearing on International
Paint’s fee motion, MYD argued
that Florida’s offer of judgment
statute, section 768.79, did not apply
because MYD sought both damages
and equitable relief in the form of a
permanent injunction in its complaint.
International Paint countered that
its offers were enforceable because
they expressly limited themselves
to MYD’s money claims and MYD
never sought any relief on its equitable
claim. The trial court held that the
offer of judgment statute applied and
awarded International Paint its costs
and attorney’s fees, because MYD did
not pursue injunctive relief with the
trial court and only litigated its money
damages. The Fourth DCA affirmed
the costs awards without comment, but
the opinion addresses International
Paint’s attorney’s fee award.
Aircraft, the Florida Supreme
Court approvingly cited to authority
suggesting that section 768.79 may
be utilized in a suit seeking monetary
and non-monetary relief if the “true
relief ” sought is monetary. Id. at 373
(citing Nelson v. Marine Group of
Palm Beach, Inc., 677 So. 2d 998, 999
(Fla. 4th DCA 1996), and DiPompeo
Construction Corp. v. Kimmel &
Associates, 916 So. 2d 17, 17-18 (Fla.
4th DCA 2005)).
More recently, the United States
Court of Appeals for the Eleventh
Circuit cited to Diamond Aircraft
to reject a party’s argument “that
attorney’s fees under [section] 768.79
are not available in any case in which
a declaratory judgment accompanies
a claim for damages.” Yacht Club on
the Intracoastal Condo. Ass’n, Inc. v.
Lexington Ins. Co., 599 Fed. Appx.
875, 883 (11th Cir. 2015) (applying
Florida law). It reasoned that “by
citation to Nelson and DiPompeo
Construction, [the Diamond Aircraft
court] reiterated that a court should
look behind the procedural vehicle
used in a complaint to discern what
true relief is sought.” Id. Considering
the facts behind a suit for breach of
contract and declaratory relief, the
Eleventh Circuit concluded that “the
only dispute in the suit was one for
damages” and thus, held that the
“district court did not err in awarding
attorney’s fees under [section] 768.79”
despite the presence of a claim for
non-monetary relief. Id. at 884.
The Fourth DCA noted in its
opinion that “[t]he purpose of Section
768.79 is to lead litigants to settle by
penalizing those who decline offers
that satisfy the statutory requirements.
Encouraging settlement lowers
litigation costs for the parties and
reduces the fiscal impact of litigation
on the court system.” Id. (citing
Allstate Prop. & Cas. Ins. Co. v. Lewis,
14 So. 3d 1230, 1235 (Fla. 1st DCA
2009)).
The Fourth DCA relied on both
the Diamond Aircraft and Yacht Club
decisions in holding that the trial
court in this case properly applied the
“true relief ” analysis in determining
the enforceability of International
Paint’s offers. Specifically, the trial
court found that in looking behind
the procedural vehicle used in MYD’s
complaint, MYD did not actually
pursue any non-monetary relief during
the course of the litigation. Instead,
MYD only sought money damages.
Accordingly, the Fourth DCA held
that the trial court correctly concluded
that International Paint’s offers of
judgment were enforceable.
The Fourth DCA also acknowledged
that an offer of judgment which
purports to resolve all claims is
invalid if the case includes both
monetary and nonmonetary causes
of action. Diamond Aircraft Indus.,
Inc. v. Horowitch, 107 So. 3d 362,
(Fla. 2013). However, in Diamond
In light of this case, a party with
a case pending in a trial court in the
Fourth DCA can no longer shield
itself from exposure to attorneys’ fees
by including a cause of action for
non-monetary damages when the true
dispute is one for damages. Thus, if
a lawsuit contains both monetary and
non-monetary claims, defendants should
consider serving an offer of judgment in
cases where the “true relief ” sought is
for monetary damages. For example, if
a lawsuit contains a cause of action for
both breach of contract and declaratory
relief, but the only litigated cause of
action is the breach of contract claim,
then defendants should serve an offer of
judgment as to the monetary damages
claim only. By taking steps to ensure
that the offer of judgment is enforceable
by limiting it to only monetary
claim, defendants can better position
themselves to recover their fees based on
rejected offers of judgment.
Cristina Cambo is an associate in
Rumberger Kirk & Caldwell’s Orlando,
Florida, office. She practices in the areas of
insurance coverage and bad faith litigation,
representing individuals and corporations in a
range of litigation and corporate matters. Ms.
Cambo can be reached at ccambo@rumberger.
com
CLIMB THE PILLARS
TO SUCCESS
BY FITTING
PROFESSIONALISM
INTO THE
PROFESSION
On September 9, 2016, the
Dade County Bar Association
will be presenting a four hour
continuing legal education
seminar at the Hyatt Regency
Downtown Miami. The program
consists of a breakfast/forum
on professionalism, three formal
sessions, and a luncheon
featuring the Honorable Florida
Supreme Court Justice Fred
Lewis delivering the keynote
address. The event is designed to
educate, inspire and engage the
bar in re-thinking professionalism
and civility, introducing and
developing themes using novel
approaches with fast-paced
and interactive sessions. All
participants will be encouraged to
accept a call to action involving
the adoption of aspirational
principles and the use of practical
techniques in their own law
practices, assisting the Bar in
spreading the message in tangible
ways, and taking on leadership
roles in the legal community and
the community at large.
www.dadecountybar.org
5
Will the Rise of the Machine
Mark the Fall of Med Mal?
BY MIHAI VRASMASU
Recently, a
new study
came out
from the
Children’s
National
Medical
Center in
Washington
involving the Smart-Tissue
Autonomous Robot (STAR)
Project. In the study, a supervised
autonomous robot performed
soft-tissue surgery on a pig’s bowel,
demonstrating that robots can now
perform surgical operations with
very minimal human supervision.
It is, therefore, only a matter of
time before fully autonomous
surgical robots make their way into
operating rooms across the country.
And so, this begs the question:
Will patients still be able to sue
their human physicians for injuries
allegedly sustained while under an
autonomous surgical robot’s scalpel?
In my years as a product
liability litigator specializing in
pharmaceuticals and medical
devices, I have deposed countless
surgeons. Virtually all of them have
testified that surgery is not an exact
science. Rather, it is an art form
founded on generally applicable
principles. The rate of success is
many times determined not only
by how familiar a surgeon is with
those generally applicable principles,
but also by his or her level of
experience and intellectual acuity.
The consequences of decisions made
in the operating room are seldom
black and white, and there is rarely
a stark delineation between actions
meeting the recognized standard of
care and those qualifying as medical
negligence. Consequently, today’s
medical malpractice laws exist in
that grey space.
It is due to this lack of clarity
that—in an effort to curtail frivolous
claims, promote settlement, and
generally reduce the cost of medical
malpractice insurance—jurisdictions
across the country have in place
strict procedural requirements
for suing physicians for medical
malpractice. For example, Florida
codified its procedural requirements
in the Florida Comprehensive
Medical Malpractice Reform Act,
Chapter 766, Florida Statutes.
Under the Act, before a patient can
sue his or her doctor, he or she must
first conduct a pre-suit investigation.
That investigation involves giving
6
DCBA BULLETIN | AUGUST 2016
notice to the subject physician of
the intent to initiate litigation, and
permitting the physician’s insurer
to conduct informal discovery to
assess its insured’s liability. If a
party fails to follow the pre-suit
notice, investigation and discovery
procedures, the court may dismiss
its claims or defenses.
that the surgery was not medically
necessary, and was therefore
negligently prescribed.
Finally, assuming there is any
evidence of a robotic malfunction
resulting from a data breach
or some other form of system
compromise, an imaginative
plaintiff ’s lawyer could also bring
suit against the physician (and
maybe even the hospital where
the surgery occurred) based on a
negligent failure to ensure proper
system security.
“Will patients still be able to sue their
human physicians for injuries allegedly
sustained while under an autonomous
surgical robot’s scalpel?”
And so what happens when the
human element is removed from
the equation and replaced by an
autonomous robot that follows a
carefully crafted algorithm based
on what is generally recognized
as the standard of care? And in
what ways may the physician be
implicated assuming that he or she
simply stood by and watched while
the surgery was being performed?
In short, though the theories
advanced may change somewhat,
medical malpractice claims will
likely remain a viable option
for many patients. For starters,
assuming that a human physician
recommended that a patient
undergo autonomous robotic
surgery using a particular robot,
it’s not hard to imagine a creative
plaintiff ’s lawyer advancing a
negligence-based theory similar to
negligent hiring. Negligent hiring is
a claim made by an injured party
against an employer based on the
theory that the employer knew
or should have known about the
employee’s background which,
if known, indicates a dangerous
or untrustworthy character. The
plaintiff ’s lawyer could argue
that the particular surgical robot
employed during the operation
had a history of negative results,
which would have led a reasonably
prudent physician to not
recommend it under the same or
similar circumstances.
Since diagnosis and treatment
options will likely remain in human
hands for the foreseeable future,
a plaintiff could also sue his or
her physician under the theory
This is by no means an
exhaustive list of the types of
attacks that patients could launch
against their human physicians
for injuries purportedly sustained
while under an autonomous robot’s
scalpel. And although autonomous
surgical robots are not being used
right now, they will be very soon.
As famed Seventh Circuit Court of
Appeals Judge Richard Posner once
wrote: “Law lags science; it does
not lead it.” But where science goes,
the law will slowly but surely follow.
So too is the case here. Thus,
physicians, their attorneys and
insurers should start thinking about
this very real threat sooner rather
than later, and take affirmative
steps to lessen or eliminate their
liability once autonomous surgery
becomes the recognized standard
of care.
Mihai Vrasmasu is a Partner
in the Miami office of Shook, Hardy &
Bacon. He represents multiple clients—
including Fortune 100 pharmaceutical
and medical device manufacturers—
facing complex product liability claims
involving medical devices and prescription
drugs. Mr. Vrasmasu may be reached at
[email protected], or through his blog
www.rxrobolaw.com .
The Constitutional Corner
BY HONORABLE MILTON HIRSCH
On August 16,
1818, a firebrand
preacher named
Jacob Gruber
harangued
a Methodist
camp meeting
in Hagerstown,
Maryland,
against the evils of intemperance,
profanity, infidelity -- and, above all,
slavery. Some weeks later Gruber was
indicted for attempting, by his sermon,
to incite “mutiny and rebellion”
among the slaves.
character, and every real lover of
freedom confidently hopes that it
will be effectually, though it must be
gradually, wiped away; and earnestly
looks for the means by which this
necessary object may be best attained.
And until it shall be accomplished,
until the time shall come when we
can point without a blush to the
language held in the Declaration
of Independence, every friend of
humanity will seek to lighten the
galling chain of slavery, and better, to
the utmost of his power, the wretched
condition of the slave.”
At trial the following March, Gruber
was represented by a prominent young
lawyer who argued that his client’s
words were protected speech. “No man
can be prosecuted for preaching the
articles of his religious creed unless his
doctrine is immoral and calculated to
disturb the peace and order of society”
– anticipating by a century Holmes’s
“clear and present danger” doctrine.
Remarkable words in the mouth
of any lawyer. But all the more
remarkable when we consider that
the young lawyer who spoke them
was Roger B. Taney – remembered
today as the chief justice who
authored the infamous Dred Scott
opinion.
It would have been sufficient to
stop there. But Gruber’s lawyer went
further. He was himself passionately
opposed to slavery, and he did not
hesitate to share his passion with the
court:
“A hard necessity, indeed, compels us
to endure the evil of slavery for a time.
It was imposed upon us by another
nation, while we were yet in a state of
colonial vassalage. It cannot be easily
or suddenly removed. Yet, while it
continues, it is a blot on our national
The Honorable Milton Hirsch
has been a judge of the 11th Judicial Circuit
of Florida since January of 2011. He
is also an adjunct professor of law at the
University of Miami School of Law and
at St. Thomas Law School. In 2016, he
became the recipient of the Dade County Bar
Association’s “Criminal Justice Award” for
his outstanding contribution to Miami-Dade
County’s criminal justice system. The above
passage is an excerpt from Judge Hirsch’s
Constitutional Calendar. If you would like
to be added to the Calendar’s distribution
list, please contact Judge Hirsch at milton.
[email protected] with your name and
e-mail address.
Accessing a Person’s
“Digital Estate” After Death
BY LETICIA VEGA & ALYSSA RAZOOK WAN
A new Florida law
facilitates access to
and succession of
a person’s “digital
assets” (that is,
electronic records
that may include
photos stored on
online servers,
email and online
bank accounts)
through appointed
fiduciaries in
the familiar
estate planning
documents
of wills, trusts
and powers of
attorney.
The “Florida Fiduciary Access to
Digital Assets Act” (the “Act”) takes
effect July 1, 2016, but is retroactive
and applies to existing estate planning
documents. It facilitates access to certain
types of digital assets of an individual
to the personal representative of an
estate, trustee of a trust, attorney-in-fact
designated under a power of attorney
and court-appointed guardian. Existing
federal laws outside of the estate
planning context had previously made
it difficult for anyone other than the
account holder to access digital assets.
The Act permits an internet service
provider (a “custodian”) to provide
to a fiduciary a “catalog of electronic
communication,” for example, a listing
of emails sent and received by an
individual, including the subject line
and time and date, but not the “content
of an electronic communication,” such
as the email message or photo itself. In
order for “content” to be provided in
absence of a court order, the individual
must expressly authorize the release
of such information in an appropriate
document, such as a will or a trust, or
by using an “online tool” offered by
certain custodians such as Facebook and
Google.
Additionally, individuals have the
power to modify a fiduciary’s access to
digital assets in his or her estate planning
documents. For example, one could
permit a fiduciary to access a social
media or photo-sharing site as to allow
the fiduciary to download and preserve
online photos, or access the content of
email messages, which could contain
information valuable to a lawsuit or
helpful in the search for assets.
While the Act is certainly new
and has not been heavily tested,
it is generally seen as a welcomed
development that can facilitate the
administration and management of
one’s estate in this new digital age.
Recommendations:
•Maintain an inventory of your digital
assets, complete with passwords.
•Properly designate a person to
manage your digital assets.
•Explore using “online tools,” such
as those provided by Facebook and
Google, to designate individuals who
may access your account.
•Consider modifying your estate
planning documents as needed
to meet your objectives - you may
seek to broaden the powers to your
fiduciaries that are provided by the
Act or appoint a separate tech-friendly
person to manage your digital assets.
Please Note: This summary is for
general informational purposes only, is
not legal advice and does not present
a detailed or complete presentation
of the Florida Fiduciary Access to
Digital Assets Act. Each case is unique
and requires a careful analysis by
one’s advisor of the specific facts and
circumstances in order to arrive to
appropriate advice.
Leticia Vega is a shareholder in
Fowler White Burnett, P.A.’s Trusts &
Estates, Corporate and Tax Practice Groups
where she focuses her practice on wealth
transferring planning and probate and guardian
administration. She also represents clients in
income tax matters including domestic and
foreign tax matters.
Alyssa Razook Wan represents U.S.
and non-U.S. clients with respect to domestic
and international tax and estate planning
matters, including foreign investment in U.S. real
property, pre-immigration planning, tax-exempt
organizations and tax controversies.
Legal Business Development:
3 Tips to Help You Find the Time!
BY PAULA BLACK
Brianna Martinez, Alex Perez, John “Jack” Hickey,
DCBA Past-President, Vanchina Palina, and
Stephanie Viel
Mr. Jack Hickey, a member of the
Florida Bar Board of Governors
and Partner at Hickey Law Firm,
visited Dade Legal Aid’s Downtown
Offices on Tuesday, June 21, to speak
on the topic of efficient discovery
strategies, depositions, and imputed
income to an enthusiastic group
of staff attorneys and summer
associates. Hickey, a former President
of the DCBA, actively participates
in the community and bar related
events. At the Legal Aid training,
he also imparted words of wisdom
during the question and answer
portion to the inquisitive group of
summer associates and spoke about
everything from work/life balance
to finding the right fit for a young
attorney and the importance of hard
work.
I work with
lawyers every
day that ask
me… “How
in the world
am I going
to find the
time to focus
on business
development?”
Yes… there are only 24 hours in a
day and no one gets an extension. But
what if you could squeeze more time
out of every single week? It’s all about
priorities and the discipline to stick to
your priorities. So, ask yourself…
1. How often do you check your
email? Do you check it every few
minutes and then get pulled into
addressing things that don’t need to be
addressed at that moment? Then you
justify it with… “It will just take a few
minutes to get this off my desk.” Think
about what is happening here. You are
allowing someone else’s priorities to
hi-jack your time. My suggestion is to
schedule 15 – 30 minutes two or three
times a day, that you will address your
email and allow time for those quick
fixes. Then at the end of the allotted
time you go back to your priorities.
2. Do you go to “networking
events” to meet people and
collect cards? Only to have those
cards sit on your desk collecting
dust? Stop wasting time. If you aren’t
going to follow up don’t go! If you do
want to make this process productive…
have a meaningful conversation with
2 or 3 people, then you are done,
you can leave. But, you must follow
“Because
let’s face it…
without business
development
you don’t have
work.”
up with him or her. Start to build a
relationship.
3. Are you spending your time on
matters that could be handled by
others? Do you say… I can do my
own bookkeeping, I can build my own
website, I can do my own research?
Yes… you are smart and very capable
of learning lots of new skills… but
should you? A bookkeeper, a web
developer or an associate can probably
do many of these things faster than
you could, and at a fraction of your
rate. You should be spending your time
working with clients and working on
their legal issues, developing business
and looking for new opportunities. I
can just hear you… “I can do it faster
than explaining it to someone.” Yes,
maybe it will take a bit some time to
get started while delegating a task, but
once the individual understands what
you need, it will save you loads of
time in the long run.
I’m not telling you these three tips
just because I think they are good
ideas… I am telling you this because
I have seen clients do them and and
gain hours of productivity to focus
on business development. We all have
the same challenge… to get more
done and find the time to do it. It’s a
“trial and error” process. I challenge
you… find the time to “do something
every single day ” to develop business.
Because let’s face it… without
business development you don’t have
work.
Paula Black is a legal business
development and branding expert,
author, consultant and coach. She
has advised individual lawyers
and law firms around the globe
on everything from powerful and
innovative design to marketing and
business development strategy and
implementation. She is the awardwinning author of “The Little Black
Book” series and the Amazonbestselling “The Little Black Book:
A Lawyer’s Guide To Creating
A Marketing Habit in 21 Days.”
For more information visit: www.
inblackandwhiteblog.com or www.
paulablack.com.
www.dadecountybar.org
7
DCBA OPPORTUNITIES
Dade County Bar Association
123 N.W. First Avenue
Miami, Florida 33128
PRSRT STD
U.S. POSTAGE PAID
MIAMI, FL
PERMIT NO. 1110
4500 Members
Opportunities to Get Involved
33 Committees
Opportunities to Serve the Profession
100 CLE Programs
Opportunities to Increase Your Knowledge
More Than
250 Events a Year
Opportunities to Increase Your Referral Network
MARK YOUR CALENDAR
AUGUST 4
SEPTEMBER 8
SEPTEMBER 30
OCTOBER 14
CRIMINAL COURT/LEAGUE
OF PROSECUTORS SCHOOL
UNIFORM FUNDRAISING
HAPPY HOUR
LOCATION: FADO IRISH PUB
TIME: 5:30
PROBATE & GUARDIANSHIP
SEMINAR
LOCATION: LAWSON THOMAS
COURTHOUSE
TIME: 12:00 NOON
MEMBER ADMISSION: $10
NON-MEMBER ADMISSION: $20
GENERAL MEMBERSHIP
LUNCHEON WITH SENATOR
BILL NELSON
LOCATION: HYATT REGENCY
DOWNTOWN
TIME: 11:30 AM
ADMISSION: $95
JUDICIARY ADMISSION: $39
DCBA MEMBER ADMISSION (FOR
MEMBERS WHO HAVE RENEWED
FOR 2016-2017 YEAR) $49
LAW AND TECHNOLOGY
DATA PRIVACY & DATA
SECURITY SUMMIT
LOCATION: UM LAW
ALUMNI CENTER
TIME: 8:00 AM
OCTOBER 5
OCTOBER 27
FAMILY COURT SEMINAR
LOCATION: DADE COUNTY
BAR ASSOCIATION
TIME: 12:00 NOON
CRIMINAL COURT SOCIAL
LOCATION: PRIDE AND JOY
TIME: 5:30 PM
OCTOBER 7
OVER THE RAINBOW EVENT
LOCATION: CORAL GABLES
COUNTRY CLUB
TIME: 6:00 PM
ADMISSION: $89
JUDICIARY ADMISSION: $69
APPELLATE LEGENDS LUNCH
LOCATION: HYATT REGENCY
DOWNTOWN
TIME: 11:30 AM
MEMBER ADMISSION: $45
NON-MEMBER ADMISSION: $65
JUDICIARY ADMISSION: $32
OCTOBER 13
NOVEMBER 2
PROBATE & GUARDIANSHIP
SEMINAR
LOCATION: LAWSON THOMAS
COURTHOUSE
TIME: 12:00 NOON
MEMBER ADMISSION: $10
NON-MEMBER ADMISSION: $20
FAMILY COURT MEETING
LOCATION: DADE COUNTY
BAR ASSOCIATION
TIME: 12:00 NOON
AUGUST 23
LABOR & EMPLOYMENT EEOC
BREAKFAST
LOCATION: LAWSON THOMAS
COURTHOUSE
TIME: 8:30 AM
AUGUST 24
LEGAL AID/PSB & DCBA
PROBATE & GUARDIANSHIP
BREAKFAST SEMINAR
LOCATION: LAWSON THOMAS
COURTHOUSE
TIME: 8:30 AM
ADMISSION: FREE FOR
ATTORNEYS WHO AGREE TO
ACCEPT AT LEAST ONE PROBATE
OR GUARDIANSHIP CASE
FROM DADE LEGAL AID. IF YOU
CANNOT ACCEPT A CASE, THE
COST IS $80
SEPTEMBER 7
FAMILY COURT MEETING
LOCATION: DADE COUNTY
BAR ASSOCIATION
TIME: 12:00 NOON
8
DCBA BULLETIN | AUGUST 2016
SEPTEMBER 9
PROFESSIONALISM SEMINAR
AND LUNCHEON
LOCATION: HYATT REGENCY
DOWNTOWN
TIME: 8:30 AM
SEMINAR MEMBER
ADMISSION: $80
SEMINAR NON-MEMBER
ADMISSION: $105
LUNCHEON MEMBER
ADMISSION: $45
LUNCHEON NON-MEMBER
ADMISSION: $60
SEPTEMBER 20
DEFEND TRADE SECRETS
ACT SEMINAR
LOCATION: DADE COUNTY BAR
ASSOCIATION
TIME: 12:00 NOON
SEPTEMBER 23
CORPORATE COUNSEL CLE
LOCATION: CORAL GABLES
COUNTRY CLUB
TIME: 8:00 AM
MEMBER ADMISSION: $42
NON-MEMBER ADMISSION: $72
OCTOBER 21
BANKRUPTCY SEMINAR
LOCATION: TBA
TIME: 8:30 AM
OCTOBER 28
For more information visit www.dadecountybar.org