Overview

David Abernethy has spent more than three decades as a trial and appellate lawyer, prevailing in court for some of the nation’s largest pharmaceutical and medical device companies, insurance carriers and other Fortune 100 companies. He has defended hundreds of product liability claims, complex insurance coverage actions, contract and commercial disputes, and consumer class actions, at trial, on appeal and in complex arbitrations. David employs his decades of experience throughout the country to develop litigation strategies that work for clients — whether the ultimate decision is to try the case to a jury, a judge or arbitrators, or pursue a settlement that makes business sense.

Before entering the private practice of law in 1986, David served as a judge advocate officer in the United States Army, prosecuting dozens of challenging criminal cases, including drug offenses and child sexual assault cases. 

Product Liability Litigation

David leads trial teams defending manufacturers of prescription and over-the-counter medications, medical devices and chemicals in product liability cases. As national coordinating counsel or national appellate counsel, he has skillfully managed large-scale product and personal injury litigation, including asbestos and chemical exposure litigation.

Representative Experience

  • First and second chair responsibility in jury trials involving various drugs and medical devices, including a widely used over-the-counter medication, surgical staplers and other instruments, a polypropylene suture used in a wide variety of procedures, and several frequently prescribed medications. Among David’s recent cases was an 11-day trial in which the jury returned a defense verdict after finding that the client’s medication did not cause a rare immune-mediated reaction that seriously injured a young child.
  • Extensive experience taking and defending fact and expert depositions, recruiting and developing experts, and briefing and arguing motions at trial and on appeal. In a recent case David successfully argued a summary judgment motion that disposed of all claims in a wrongful death case in which the plaintiff alleged that her adult son was severely injured by a medication and eventually committed suicide because of those injuries. In another recent case, David won dismissal on forum non conveniens grounds of an action brought by a U.S. citizen living in Europe who claimed he was seriously injured, during surgery performed there, by a defect in the client’s surgical instrument.
  • A number of years serving as national coordinating counsel for a chemical and consumer products manufacturer, handling the defense of personal injury actions in multiple states alleging cancer caused by exposure to trace amounts of a petroleum derivative found in several industrial and consumer products. David obtained favorable settlements or dismissals in a number of those cases.
  • Serving for several years as appellate counsel for a major 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 appeals in state and federal courts in toxic tort, product liability, insurance coverage and civil rights cases. His hallmark appellate matters include product liability appeals and seminal cases involving insurance coverage, including Stonewall Insurance Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir. 1995), Sharon Steel Corp. v. Aetna Casualty & Surety Co., 931 P.2d 127 (Utah 1997), and J.P. Morgan Securities, Inc. v. Vigilant Insurance Co., 166 A.D.3d 1, 84 N.Y.S.2d 436 (N.Y. App. Div. 1st Dept. 2018).

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. David has counseled and defended insurers in coverage disputes related to:

  • Asbestos bodily injury and property damage claims
  • Bodily injury claims arising from the contamination of blood products
  • Environmental pollution claims
  • Securities actions
  • Consumer class actions

Representative Experience

  • Primary responsibility for the representation of an excess insurer in a coverage disputes under professional liability policies, arising from settlements exceeding $100 million in an SEC administrative action and private securities class actions alleging violation of federal securities laws by one of the nation’s largest securities firms.
  • Representation of primary and excess insurers at the trial level and on appeal in a multi-year, multi-party coverage dispute involving hundreds of thousands of asbestos bodily injury and property damage claims, including the defense of two bench trials and participation in the briefing and argument of the appeal decided in Stonewall Insurance Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir. 1995).
  • Representation of primary and excess insurers in a wide range of environmental and personal injury actions and in bad faith litigation.

Commercial Litigation

David has prepared 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 arbitration with its joint venturer in a commercial shipping business. He won the termination of a key agreement that gave the joint venture control of management of the venture, and recovered millions of dollars in damages for the venture against the against the joint venturer.
  • David successfully defended several class actions alleging consumer fraud and breach of warranty in connection with the ingredient labeling of an over-the-counter medical product, defeating class certification in a state court action and obtaining dismissals in two similar 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 the policy holders who paid off their insured loans early.
 

Credentials

Bar Admissions

New Jersey
Pennsylvania

Court Admissions

U.S. Court of Appeals for Veterans Claims
U.S. Supreme Court
U.S. Court of Appeals for the Armed Forces
U.S. Army Courts of Criminal Appeals
U.S. District Court for the Middle District of Pennsylvania
U.S. Bankruptcy Court for the Eastern District of Virginia
U.S. Court of Appeals for the Tenth Circuit
U.S. Court of Appeals for the Second Circuit
U.S. Court of Appeals for the Third Circuit
U.S. Court of Appeals for the Sixth Circuit
U.S. Court of Appeals for the Federal Circuit
U.S. District Court for the Eastern District of Pennsylvania
U.S. District Court for the District of New Jersey

Education

Syracuse University College of Law
J.D. summa cum laude (1982)

Syracuse University
A.B. summa cum laude (1980)

Insights & Events

Leadership & Community

Pro Bono

David has been active in pro bono work for more than 30 years, representing victims of domestic abuse, individual clients seeking child support or custody, and veterans and active duty service members appealing denials of veterans’ benefits or defending civil litigation at home while they serve away from home. He has served as the president, and as an officer and board member, of Philadelphia VIP, which recruits, trains and supports volunteer counsel handling civil matters for Philadelphians who cannot afford to retain counsel. He also has served as a member of the Board of Trustees of the Women’s Law Project, which pursues equal opportunity for women through litigation, advocacy and counseling.

Professional Associations

  • American Bar Association
  • Pennsylvania Bar Association
  • Philadelphia Bar Association

Civic Activities

In addition to his involvement in pro bono legal activities, David is an active member of his synagogue.

Firm Leadership

David has served on the firm’s pro bono and partner allocations committees and has served for many years as the firm’s pro bono partner, overseeing the entire firm’s pro bono practice. He is also involved extensively in the firm’s attorney hiring, training and mentoring programs. He is a member of the Pro Bono Committee.

Honors

  • American College of Trial Lawyers — Fellow
  • United States Army — Meritorious Service Medal

Awards Methodology

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