Appeals. A Board Certified Specialist in Appellate Practice since 2013, Dan has briefed or presented oral argument in more than 75 appeals across the country. He has handled appellate matters in the U.S. Courts of Appeals for the 3d, 4th, 5th, 9th, 11th, and D.C. Circuits and the state appellate courts of Connecticut, Delaware, Florida, Maine, Massachusetts, Missouri, New Jersey, Tennessee and Utah. Dan’s appellate victories have included significant issues of first impression and the use of creative, precedent-setting appellate strategies.
Class Actions. Dan’s class action practice focuses on defending product manufacturers and retailers from claims alleging deceptive and unfair trade practices. He has successfully defended dozens of consumer class actions, securing multiple dismissals and orders denying class certification. Where appropriate, Dan has also helped clients eliminate class-action risk by negotiating favorable individual and classwide resolutions.
Commercial Litigation. When not litigating class actions or appeals, Dan has successfully represented individuals, small businesses and multinational companies as both plaintiffs and defendants in matters involving product liability, employment, real estate and the full spectrum of business disputes. He has tried jury and non-jury cases in state, federal and administrative courts.
Professional and Community Involvement. Dan has written and lectured about class actions, appeals, legal ethics, expert witnesses and emerging issues in environmental law. He has also been involved with the Florida Standard Jury Instructions Committee for Civil Cases since 2011, and the Florida Supreme Court appointed him chair of the Committee.
In addition, Dan has devoted significant time to pro bono efforts, helping those who cannot afford legal representation with their criminal, immigration, probate and family law problems. He also volunteers his time as an appointed member of the Miami-Dade County Planning Advisory Board, the county’s designated local planning agency and the main advisory board to the Board of County Commissioners on matters related to land use, municipal annexations and incorporations.
In years past, Dan served on the Board of the 11th Judicial Circuit Historical Society, including as its Chair, working to preserve and educate others about South Florida’s legal heritage. He also served multiple terms as Chair of the Dade County Bar Appellate Court Committee.
Fajardo v. Boston Scientific Corp. | In a product liability case alleging that a medical implant caused personal injuries, Dan successfully defended the defense verdict and the trial court’s decision not to give the jury an instruction using the reasonable alternative design test. -- A.3d --, 2021 WL 5989909 (Conn. Dec. 16, 2021).
Belcher Pharmaceuticals, LLC v. Hospira, Inc. | In a case alleging that unfair competition and false advertising of pharmaceutical products caused a competitor’s lost profits, Dan successfully defended the summary judgment entered for the defendant because the competitor could not prove that the defendant made any representations that misled consumers. 1 F.4th 1374 (11th Cir. 2021).
Cavanaugh v. Stryker Corporation | In a product liability case involving a medical surgical waste system, Dan successfully defended a defense verdict and judgment against appellate challenges to rulings on jury instructions, juror strikes, and the admission of purported settlement and hearsay evidence. The decision includes a precedential holding on the proper test for judging defects in the design of complex products. No. 308 So. 3d 149 (Fla. 4th DCA 2020), rev. denied, No. SC21-219, 2021 WL 3485938 (Fla. Aug. 9, 2021).
McGinnis v. C. R. Bard, Inc. | In a product liability case alleging a mesh implant caused personal injuries, Dan filed an amicus brief on behalf of industry groups urging the New Jersey Superior Court Appellate Division to allow evidence of the FDA’s decision to clear a medical device for marketing pursuant to § 510(k). The court invited counsel for the amici to participate in the oral argument, which Dan presented on behalf of all of the amici. The court agreed with our arguments, reversing for a new trial. 249 A.3d 191 (N.J. Sup. Ct. App. Div. 2021).
Cisneros v. PAWSitive Solutions, Inc. | In a putative nationwide civil RICO class action against alleging a racketeering scheme and conspiracy to profit off the sale of sick puppies, Dan successfully defended an order dismissing with prejudice the federal RICO claims, and the court remanded for dismissal with prejudice of the state RICO claims, too. 972 F.3d 1204 (11th Cir. 2020).
2711 Hollywood Beach Condo. Ass’n v. TRG Holiday, Ltd. | In a product liability case alleging defects in components of a condominium’s fire sprinkler system, Dan filed an amicus brief on behalf of an industry group urging the court to uphold application of the economic loss rule to preclude tort claims for damage to other components of the condominium building. 307 So. 3d 869 (Fla. 3d DCA 2020).
Laporte v. Pharmacia & Upjohn Company LLC | In a product liability case against client alleging two vials of Depo-Medrol®, an injectable corticosteroid, were contaminated during the manufacturing process and caused a patient’s fatal infection, a summary judgment was obtained for the client, which was then affirmed on appeal. Dan was lead on the appellate briefing. 147 N.E.3d 1104 (Mass. Ct. App. 2020).
Emery v. Medtronic, Inc. | In a product liability case alleging a mesh implant caused personal injuries, Dan successfully defended an order dismissing the claim with prejudice. 793 F. App’x 293 (5th Cir. 2019).
Burningham v. Wright Medical Grp., Inc. | In a product liability case alleging a hip implant caused personal injuries, Dan filed an amicus brief on behalf of industry groups urging the Utah Supreme Court to extend comment k of the Restatement (Second) of Torts to implantable medical devices. 448 P.3d 1283 (Utah, 2019).
Wright v. Howmedica Osteonics Corp. | In a product liability case alleging a component used in a hip replacement caused personal injuries, Dan successfully defended an order dismissing the case with prejudice. 741 F. App'x 624 (11th Cir. 2018).
Carlson v. Boston Scientific Corp. | In a product liability case alleging that a permanent medical implant caused personal injuries, Dan successfully defended a summary judgment on a failure-to-warn claim under North Carolina law. 856 F.3d 320 (4th Cir. 2017).
Howmedica Osteonics Corp. v. Trowbridge | In a consolidated proceeding of multiple product liability cases alleging that a hip implant caused personal injuries, Dan successfully petitioned the appellate court for an extraordinary writ of certiorari that, on an issue of first impression, quashed an order requiring disclosure of foreign reporters of adverse incidents. 211 So. 3d 114 (Fla. 4th DCA 2017).
Battersea Woods, LLC v. City of Miami | In an appeal by a developer from the denial of its plat application, the City retained Dan to defend the appeal and then to work with City staff to implement a unique resolution reached with the developer and neighbors. No. 16-402 (Fla. 11th Jud. Cir.)
Tyco Fire Prods., L.P. v. 2711 Hollywood Beach Condo. Ass’n | In a product liability/construction defect case alleging that incompatible sprinkler pipe caused property damage, Dan successfully petitioned the appellate court for an extraordinary writ of certiorari that quashed an order requiring disclosure of privileged documents. 207 So. 3d 299 (Fla. 3d DCA 2016).
Statute of Limitations Appeals | In a series of product liability cases alleging that a permanent medical implant caused personal injuries, Dan successfully defended summary judgments based on the Utah, Florida and Michigan statutes of limitations, respectively. Timothy v. Boston Scientific Corp., 665 F. App’x 295 (4th Cir. 2016); Robinson v. Boston Scientific Corp., 647 F. App’x 184 (4th Cir. 2016); Fleming v. Boston Scientific Corp., 627 F. App’x (4th Cir. 2015); Hay-Rewalt v. Boston Scientific Corp., 623 F. App’x 92 (4th Cir. 2015).
Witt v. Stryker Corp. | In a product liability case alleging that a knee implant caused personal injuries, Dan successfully defended a Daubert order excluding the plaintiff’s expert and the resulting defense summary judgment. 648 F. App’x 867 (11th Cir. 2016).
Transp. Eng'g, Inc. v. Cruz | In a wrongful death case alleging negligent design of a highway median guardrail, Dan successfully petitioned the appellate court for an extraordinary writ of certiorari that quashed a non-final order denying the guardrail designer’s motion for summary judgment and remanded with directions to enter judgment absolving the guardrail designer of liability. 152 So. 3d 37 (Fla. 5th DCA 2014), rev. denied, 171 So. 3d 115 (Fla. 2015).
Miami Gardens Square One, Inc. v. Raszeja | In a personal injury case arising from a violent attack by security at a night club, Dan successfully defended the appeal of an order compelling production of a surveillance video. 149 So. 3d 20 (Fla. 3d DCA 2014).
Fuzzell v. E.I. du Pont de Nemours & Co. | In a product liability case alleging an agrichemical caused crop damage, Dan successfully defended an order excluding the plaintiffs’ causation expert and the resulting defense summary judgment. 127 So. 3d 523 (Fla. 5th DCA 2013) and No. 5D11-659 (Fla. 5th DCA 2011).
Stratton v. 6000 Indian Creek, LLC | In a proceeding to enforce a foreclosure judgment, Dan successfully defended an order sanctioning a party and his counsel for presenting frivolous defenses to excuse the party’s refusal to vacate the property after foreclosure. 95 So. 3d 334 (Fla. 3d DCA 2012), rev. denied, 116 So. 3d 384 (Fla. 2013).
Agrofollajes, S.A. v. E.I. du Pont de Nemours & Co. | In a 27-plaintiff product liability case alleging an agrichemical caused crop damage, Dan successfully defended defense judgments on the seven biggest claims and reversed plaintiff judgments on 20 other claims. 48 So. 3d 976 (Fla. 3d DCA 2010).
Minor v. Brunetti | In a declaratory judgment case to determine the true owner of property, Dan successfully reversed the dismissal of a complaint. 43 So. 3d 178 (Fla. 3d DCA 2010).
Antar v. SeaMiles, LLC | In a breach of contract case, Dan successfully reversed an order forfeiting nearly $800,000 due under the contract. 994 So. 2d 439 (Fla. 3d DCA 2008).
East Coast Electric v. Dunn | In a product liability case involving catastrophic electric burns, Dan successfully defended summary judgment for a product manufacturer. 979 So. 2d 1018 (Fla. 3d DCA), rev. denied, 966 So. 2d 211 (Fla. 2008).
Livingstone v. Publix Super Markets, Inc. | In a class action alleging that a dish detergent’s “Mild & Gentle” name constituted a deceptive and unfair trade practice and negligent misrepresentation because the detergent includes an alleged allergen and skin irritant, Dan successfully convinced the court to grant a motion to dismiss and enter a final order of dismissal. No. CACE-19-15268 (Fla. 17th Jud. Cir. Dec. 18, 2019).
Brodie v. Speedway LLC | In a class action alleging the slopes of parking lots violated the ADA, Dan implemented a dispositive motion strategy that resulted in the dismissal with prejudice of the plaintiffs’ novel theory that DOJ regulations supposedly required proactive remediation of parking lot slopes at every store nationwide. No 17-cv-133 (W.D. Pa.)
Teggerdine v. Speedway LLC & WorldPay US, Inc. | In a class action alleging negligent implementation of a payment-card processing system caused extended holds to be placed on funds in customers’ financial accounts, Dan successfully obtained dismissal or summary judgment on most claims and then the denial of class certification on the remaining negligence claim. No. 16-3280 (M.D. Fla.), 2018 WL 583114 (Jan. 26, 2018) (partial dismissal); 2018 WL 1730356 (Apr. 10, 2018) (partial summary judgment); 2018 WL 2451248 (May 31, 2018) (denial of class certification).
LexisNexis v. Weil Quaranta, P.A. | In a class action alleging that an information service provider sold a worthless legal research product, Dan obtained a dismissal with prejudice following a petition to compel the matter into individual (non-class action) arbitration. (Fla. 11th Jud. Cir. Ct. 2015).
Larkin v. GameStop, Inc. | In a class action alleging unfair and deceptive practices in the sale of used video games, a favorable individual settlement was reached following a ruling partially dismissing the complaint. (S.D. Fla. 2015).
Carsten v. University of Miami | In class action alleging failure to safeguard protected health information of university hospital patients, a favorable settlement was negotiated while a dispositive motion to dismiss was pending. (S.D. Fla. 2014).
Freburger v. Alcon Laboratories, Inc. | In a class action alleging unfair practices in connection with prescription eye drops, the matter was voluntarily dismissed before a hearing on a dispositive motion to dismiss. (S.D. Fla. 2014).
Chapman v. Remington Arms Co. | In a class action alleging a defect in a rifle's firing mechanism, the matter was voluntarily dismissed after Dan filed a dispositive motion to dismiss. (S.D. Fla. 2013).
Insurance Class Actions | In successive class actions alleging improper insurance practices, Dan obtained an order dismissing the first class action, then reached a favorable settlement on appeal; the second class action was voluntarily dismissed following a venue transfer and the filing of a dispositive motion to dismiss. Atkinson v. Wal-Mart Stores, Inc., 349 F. App’x 426 (11th Cir. 2009); Gaub v. Wal-Mart Stores, Inc., 2012 WL 5411220 (S.D. Fla. Nov. 6, 2012).
Top Branch Environmental Services, Inc. v. Hoodridge Unlimited, Inc. | In a class action alleging deceptive practices in mulch packaging, Dan obtained a denial of class certification due to the inadequacy of the representative, resulting in a voluntarily dismissal. (S.D. Fla. 2009).
O’Neill v. Home Depot USA, Inc. | In a class action alleging deceptive practices in tool rental damage waivers, class certification was denied and the case was then voluntarily dismissed. 243 F.R.D. 469 (S.D. Fla. 2006).
Corbett v. Sprint Spectrum, L.P. | In a class action alleging deceptive and unfair practices in mobile phone service early termination fees, the court granted a petition to stay and compel the case into arbitration. (Fla. 19th Jud. Cir. Ct. 2005).
Trial and Appellate Counsel
Ramirez v. E.I. du Pont de Nemours & Co. | In a product liability case alleging an agrichemical caused cancer and other personal injuries, Dan obtained a defense verdict at trial, and then successfully defended the defense judgment on appeal. No. 09-321 (M.D. Fla. 2010), aff’d, 579 F. App’x 878 (11th Cir. 2014).
Castillo v. Roche Laboratories Inc. | In an employment discrimination/retaliation case, Dan obtained a defense summary judgment and successfully defended the judgment on appeal. No. 10-20876 (S.D. Fla. Apr. 6, 2011), aff’d, 467 F. App’x 859 (11th Cir. 2012).
The Vizcayans, Inc. v. City of Miami | In a land use and zoning case, Dan successfully represented a non-profit organization in concurrent trial and appellate proceedings to quash municipal decisions that allowed construction of a building that would have diminished the integrity of Miami’s only National Historic Landmark. 15 Fla. L. Weekly Supp. 657 (Fla. 11th Jud. Cir. May 7, 2008), and 2009 Fla. Div. Adm. Hear. LEXIS 693 (Fla. Adm. Comm’n 2009).
Defending ADA 'Gotcha' Legislation, From Brick-and-Mortar to Website and Apps, SIGMA Spring Conference, Miami, Florida, May 2022.
Jury Verdicts and Jury Instructions, ABA 2019 Appellate Practice Regional Program, Miami, Florida, May 16, 2019.
Hot Topics in Class Actions and Appellate Decisions, Legal and Ethical Developments for In-House Counsel, Miami, Florida, November 29, 2018.
ADA in the Internet Age: Minimizing the Risks of "Gotcha" Lawsuits, Presentation for Pfizer, New York City, February 14, 2018.
Don't Get Yourself Into a Pickle: Avoiding the Quirks of Florida Law, Association of Corporate Counsel South Florida, Fort Lauderdale, Florida, October 6, 2017 (with Jennifer McLoone and Al Saikali).
Frye v. Daubert - What the Florida Supreme Court's Recent Decision on Daubert Means For You, Dade County Defense Bar Association, Miami, Florida, May 3, 2017 (with Judge Ellen L. Leesfield and Jennifer McLoone).
Pre-Trial Preservation: Paving the Way to Ensure the Client Is in the Best Position Possible for Early Case Resolution or Trial, Appellate Practice Regional Meeting—ABA Regional CLE Workshop, Miami, Florida, April 28, 2017 (Panelist).
Mandamus/Prohibition, "Mandamus, Habeas, and Certiorari! Oh my! A Guide to Florida's Extraordinary Writ Petitions," The Third District Court of Appeal Spring Seminar, Miami, Florida, March 10, 2017.
You Have the Right to Remain Silent: Business Writing for Before Your Lawyer Arrives, Association of Corporate Counsel South Florida, Miami, Florida, November 16, 2016.
Best Practices for Appeals to the Third District, Dade County Bar Association Bench and Bar Conference, February 26, 2016 (Moderator).
What Every In House Counsel Should Know About Data Privacy, Class Actions and Attorney-Client Privilege, Daily Business Review's Corporate Counsel Summit, Miami, Florida, April 25, 2014 (with Bill Geraghty and Al Saikali).
Frye v. Daubert - What the Florida Supreme Court's Recent Decision on Daubert Means For You, Dade County Defense Bar Association, Miami, Florida, October 10, 2012 (with Judge Ellen L. Leesfield and Jennifer McLoone).
How the Florida Supreme Court Has Reacted to State Efforts to Protect Coastal Lands from Erosion, The Next Generation of Environmental Law, Miami, Florida, December 3, 2010.
Surviving the Economic Storm with Professionalism: How to Keep Your Job While Maintaining Your Reputation, Dade County Bar Association and Young Lawyers Section Professionalism Committee, Miami, Florida, October 2, 2009 (Panelist, with Philip Bloom and Richard Milstein).
“Chapter 44: Florida,” A Practitioner's Guide to Class Actions, Third Edition, American Bar Association, November 2021 (with Jennifer McLoone, Eric Boos and Aimée Canty).
Rule 23(f) After 16 Years, Appellate Practice—ABA Section of Litigation, Fall 2014.
The Clerk's Time Stamp on a Notice of Appeal is Not Dispositive, ABA Section of Litigation, January 27, 2011.
ABA Section of Litigation Products Liability Newsletter, 2006 (with Eileen Moss).
Money and Clients: Attorneys Divided on Florida Supreme Court Stance on Non-Lawyer Ownership, Daily Business Review, April 5, 2022.
Time to Revisit Trial Strategy as Florida Supreme Court Changes Final Authority on Jury Instructions, Daily Business Review, November 21, 2021.
Evidence of Nothing Overcomes No Evidence, Drug & Device Law, June 4, 2020.
Tufts Must Face Suit Over Patient’s Infection Death, Law360, June 1, 2020.