David F. Abernethy

Product Liability Litigation

David leads teams that prepare and try cases against manufacturers of prescription and over-the-counter medications, medical devices, chemical products and other products, in state and federal courts around the country. As national coordinating counsel or national appellate counsel he manages large-scale product and personal injury litigation involving claims that sometimes number in the thousands. As trial counsel in individual cases he works with teams to craft the narrative for trial and present it clearly and persuasively to judges and juries. As appellate counsel he brings persuasive legal arguments to bear in support of his client’s position.

Representative Experience

• Acting as national counsel for a major pharmaceutical company in a mass tort that involved more than 13,000 claims asserted in several different state courts, David developed overall strategy; led teams handling depositions, document discovery, expert development and motions practice; tried a number of the cases; and consulted on multiple appeals.
• David has served as first- and second-chair trial counsel in numerous jury trials involving drugs and medical devices, including two of the most widely used over-the-counter medications in the United States, surgical staplers and polypropylene sutures widely used in a number of surgical procedures, and frequently prescribed medications. Among David’s recent cases was an 11-day trial ending in a defense verdict finding that his client’s medication did not cause a rare skin reaction that seriously injured a young child.
• David took and defended fact and expert depositions, recruited and developed experts from among the country’s leading medical professionals, and briefed and argued motions and appeals in multiple pharmaceutical cases. He won summary judgment on all claims in a case that included a wrongful death claim, alleging that severe injuries caused by a medication led the plaintiff’s son to take his own life. In another he secured dismissal, on forum non conveniens grounds, of an action filed in a U.S. court by a U.S. citizen who alleged he was injured by a medical device while living in Europe.
• As part of his work on mass torts involving product claims, David prepared and presented at trial, and deposed or defended at deposition, experts in diverse areas including endocrinology, psychiatry, toxicology and regulatory issues. In many of those cases David also litigated issues relating to admissibility of that expert testimony.
• David served as national coordinating counsel for a chemical and consumer products manufacturer, defending personal injury actions in multiple states alleging cancer caused by exposure to trace amounts of benzene allegedly found in multiple industrial and consumer products, obtaining favorable settlements and dismissals in many of those cases.
• David also served for a number of years as appellate counsel for a manufacturer of asbestos-containing products, briefing and arguing multiple appeals in Pennsylvania and consulting on appeals in other jurisdictions.

Appellate Advocacy

Over several decades, David has briefed and argued dozens of appeals in state and federal appellate courts in toxic tort, product liability, insurance coverage and civil rights cases. Those appeals have produced rulings on seminal issues involving coverage under general and professional liability policies, and favorable outcomes for clients in products and commercial cases (some described elsewhere here). David acted as national appellate counsel for an asbestos product manufacturer and briefed or consulted on a number of other appeals in product liability cases. Originally trained as a journalist, David brings a clear and direct style to the presentation of even the most complex legal issues.

Insurance Coverage Litigation

David represents primary and excess insurers in coverage disputes and bad-faith claims involving general liability, directors’ and officers’ liability, and professional liability policies. He has counseled and defended insurers in coverage disputes related to asbestos bodily injury and property damage claims, bodily injury claims arising from alleged contamination of blood products, environmental pollution claims, securities actions and consumer class actions.

Representative Experience

• David represented an excess insurer in a decade-long coverage dispute involving professional liability policies arising from settlements of an SEC administrative proceeding and private securities class actions against one of the nation’s largest securities firms. David was responsible for briefing a challenge to an award of prejudgment interest against a group of excess insurers in the case, defeating interest claims that exceeded $50 million against his client and more than $100 million against the group.
• David represented primary and excess insurers at trial and on appeal in a multi-year, multi-party coverage dispute involving hundreds of thousands of asbestos bodily injury and property damage claims. This included defense of the insurers at two bench trials and the briefing and argument of an appeal in the Second Circuit that resulted in a seminal ruling on coverage issues that was widely cited for years.
• David also has represented primary and excess insurers in a wide range of environmental and personal injury actions and in bad-faith litigation.

Commercial Litigation

David has litigated and tried cases involving a wide range of contract and commercial disputes, and consumer class actions, including disputes involving joint venture agreements, allegations of consumer fraud and breach-of-warranty actions.

Representative Experience

• David prevailed as co-lead trial counsel on behalf of a Fortune 100 company in an arbitration with its joint venturer in a commercial shipping business, winning termination of a key agreement that gave the other joint ventures control of management and recovering millions of dollars in damages against the other venturer.
• David successfully defended several class actions alleging consumer fraud and breach of warranty involving the ingredient labeling of an over-the-counter medical product, defeating class certification in a state court action and obtaining dismissals of two federal actions.
• David obtained a highly favorable settlement for an insurance company that issued credit insurance on consumer loans in a class action alleging failure to refund premiums to policyholders who paid off the insured loans early.