David F. Abernethy

Partner Philadelphia
david.abernethy dbr.com
Phone: (215) 988-2503
Fax: (215) 988-2757

About

David F. Abernethy is a trial lawyer with many years of experience defending products liability cases, particularly cases involving pharmaceutical products, medical devices and chemical products, at trial and on appeal. David also spent several decades litigating a range of commercial matters, defending consumer class actions, representing insurers in coverage disputes under various types of liability policies, and handling contract, fraud and business tort cases.

Before joining Drinker in 1986, David served in the United States Army Judge Advocate General’s Corps and gained extensive trial experience prosecuting difficult criminal cases that included theft, drug offenses, child abuse and sexual assault.

David served as the firm’s pro bono partner for more than 10 years and continues to serve as a member of its Public Interest Committee.

Experience

Over the last decade and a half, David defended hundreds of products claims around the country including claims against of the nation’s largest makers of prescription and OTC medications and medical devices. This work included:

  • 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.

Over the last two decades David has briefed and argued appeals in multiple state and federal courts, including seminal cases on commercial insurance coverage issues such as Stonewall Insurance Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir. 1995), and Sharon Steel Corp. v. Aetna Casualty & Surety Co., 931 P.2d 127 (Utah 1997), and a wide range of products and personal injury cases. David has been appointed by the U.S. Court of Appeals for the Second Circuit to act as pro bono appellate counsel in two appeals involving civil rights claims.

David has represented some of the country’s largest insurance carriers in disputes arising from diverse underlying litigation, including asbestos bodily injury and property damage claims, bodily injury claims arising from the alleged contamination of blood products, environmental pollution claims, securities actions, consumer class actions and other claims. David’s experience includes:

  • 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.

David has prosecuted and defended a wide variety of complex commercial cases and class actions:

  • 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

Education

  • Syracuse University College of Law, J.D., 1982, summa cum laude
  • Syracuse University, A.B., 1980, summa cum laude

Court Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals, Second Circuit
  • U.S. Court of Appeals, Third Circuit
  • U.S. Court of Appeals, Sixth Circuit
  • U.S. Court of Appeals, Tenth Circuit
  • U.S. Court of Appeals, Federal Circuit
  • U.S. Court of Appeals for the Armed Forces
  • U.S. Court of Appeals for Veterans Claims
  • U.S. District Court, District of New Jersey
  • U.S. District Court, Eastern District of Pennsylvania
  • U.S. District Court, Middle District of Pennsylvania
  • U.S. Army Court of Military Review

Organizations

  • American Bar Association
  • Pennsylvania Bar Association
  • Philadelphia Bar Association
  • Philadelphia Volunteers for the Indigent Program (Philadelphia VIP), Board of Directors