Trials and Appeals
David P. Herrick has extensive commercial litigation experience. David Herrick handles a wide variety of commercial disputes at the trial and appellate levels in state and federal court, including adversary proceedings in bankruptcy court and arbitration of securities fraud disputes. David Herrick tried more than 10 commercial cases to conclusion with amounts in dispute of up to $35 million.
Obtained directed verdict in breach of fiduciary duty case in which 41 fen/phen plaintiffs sued their attorneys; successfully defended result on appeal. Bailey v. Gallagher, 348 S.W.3d 322 (Tex.App.--Dallas, 2011, pet. denied).
After one week evidentiary hearing, successfully disqualified opposing counsel (Jenkens & Gilchrist) in complex commercial dispute based upon prior representation of client in substantially related matter. Marix v. Sienna Consulting Group, Inc., No. 05-10457-D, 95th Judicial District Court, Dallas County, Texas.
Obtained dismissal with prejudice on Daubert grounds for architect in construction dispute relating to design of roofing system. Cabot Indus. Trust v. Gencorp Inc., No. 3:03-CV-0856-R, U.S. District Court, Northern District of Texas.
Handled all Daubert/expert witness issues in $35 million construction dispute involving more than 20 expert witnesses relating to design of $300 million gravity fed water pipeline. CPA Group Int'l, Inc. v. American Int'l Ins. Co. of Puerto Rico, No. 01-1483 (JP), U.S. District Court, District of Puerto Rico.
Obtained summary judgment for Choicepoint, Inc. after successfully urging the exclusion of the plaintiffs' damages experts on Daubert grounds in contract dispute in which plaintiffs alleged $17 million in lost profits; successfully defended Daubert result on appeal. Fraud-Tech, Inc. v. Choicepoint, Inc.,102 S.W.3d 366 (Tex.App.--Ft. Worth 2003, pet. denied). See also Fraud-Tech v. Choicepoint, Inc., 2006 Tex.App.Lexis 3181 (Tex.App.--Ft. Worth 2006, pet. denied) (mem.) (affirming summary judgment as to remaining claims).
Successfully defended antitrust defendant's Daubert objections and served as trial counsel for plaintiff in one week jury trial. Viazis v. American Assoc. of Orthodontists, 182 F.Supp.2d 552 (E.D.Tex. 2001).
Handled all legal/appellate issues in a five week jury trial of attorney malpractice/breach of fiduciary duty dispute. See Piro v. Sarofim, 80 S.W.3d 717 (Tex.App.--Houston [1st Dist.] 2002, no pet.).
Obtained dismissal on behalf of prescription drug benefits provider in contract dispute. NAMA of Texas v. Countdown Connect, Inc., No. 3-98CV1217-P, U.S.District Court, Southern District of Texas.
Obtained dismissal of appeal and withdrawal of published opinion adverse to client in commercial landlord-tenant dispute. Kwik Wash Laundries, Inc. v. Alexander House, Ltd., 1996 WL 469675 (Tex.App.-Houston [14th Dist] 1996, no writ) (unpublished).
Successfully defended commercial tenant in trial of landlord-tenant dispute in which landlord sought termination of ground lease with a present value of approximately $25 million. Three-Way Partnership v. LS Holdings, Inc., No. 95-03633-D, County Court at Law No. 4, Dallas County, Texas.
Obtained dismissal on personal jurisdiction grounds in trial court and successfully defended result on appeal in employment/trade secrets dispute. TST/Impresso, Inc. v. Lynch, 1995 WL 500227 (Tex.App.-Dallas 1995, writ denied) (unpublished).
On appeal, successfully defended summary judgment obtained for University of Texas in dispute with faculty member relating to the University's faculty compensation system. Members of Bd. of Regents v. Hilley, 1994 WL 708295 (Tex.App.-Dallas 1994, writ denied) (unpublished).
Successfully tried the only adversary proceeding to go to trial in the Southmark bankruptcy, a dispute relating to millions of dollars in insurance premiums. In re Southmark, U.S. Bankruptcy Court, Northern District of Texas.