Trials and Appeals
David P. Herrick served as trial counsel and handled all Daubert issues for BP in a 45,000 plaintiff MDL relating to oil refinery emissions. David Herrick examined the majority of medical causation expert witnesses who testified during the first two four-week "bellwether" trials. The jury found for BP in both trials as to all eight plaintiffs. In re: MDL Litigation Regarding Texas City Refinery Ultracracker Emission Event, No. 10-UC-0001, 56th Judicial District, Galveston County, Texas.
In a related federal class action involving BP refinery emissions and property damage, David Herrick successfully excluded on Daubert grounds the plaintiffs' property damage expert, resulting in an opinion denying class certification. Cannon v. BP Products North America, Inc., 2013 WL 5514284 (S.D. Tex. Sept. 30, 2013).
Herrick represented BP as trial and Daubert counsel in another refinery emissions case relating to the release of sulfur-based compounds. After successfully excluding the plaintiffs' only medical causation expert on Daubert grounds, Herrick served as trial counsel for three-week bellwether trial in which the jury awarded de minimis damages relating to odor-based complaints. Boyd v. BP Products North America, Inc., No. 3:13-cv-175 (S.D. Tex.).
Herrick represents several defendants in the asbestos litigation, including ExxonMobil, Dow Chemical, and Union Carbide. Herrick handled all legal/appellate issues and/or served as trial counsel in 16 jury trials involving 23 plaintiffs. With the exception of a single plaintiff who settled pending appeal and another who dismissed her claim to avoid defending an appeal, every trial resulted in either a defense verdict or a reverse and render on appeal.
In 2010, Herrick testified before the Texas House of Representatives Committee on Judiciary & Civil Jurisprudence as an expert witness on legislation seeking to decrease Daubert's application in the asbestos context.
Herrick obtained the first appellate decision in the asbestos litigation in which judgment for an asbestos defendant was rendered on Daubert grounds. Mobil Oil Corp. v. Bailey,187 S.W.3d 265, (Tex.App.--Beaumont 2006, pet. denied) (reversing and rendering where plaintiff's causation experts could not reliably link plaintiff's lung cancer to his asbestos exposure).
On appeal, Herrick obtained a reverse and render in Texas state court of a $9 million asbestos plaintiff's verdict on Chapter 95 grounds. Abutahoun v. The Dow Chemical Co., 463 S.W.3d. 42 (Tex. 2015).
On appeal, Herrick successfully defended a defense verdict in California state court in which the plaintiff attributed his lung cancer to asbestos exposure. Steiner v. Volkswagon Group of America, Inc., No. BN36532 (Cal.App. 2 Dist 2013) (unpublished).
On appeal, Herrick successfully defended a summary judgment in Arizona state court applying the New Mexico statute of repose to find that plaintiffs' asbestos claims were barred. Pounders v. Enserch E&C, Inc., 306 P.3d 9 (Ariz. 2013).
On appeal, Herrick successfully defended a summary judgment in California state court based upon hearsay objections to asbestos product identification testimony. Smalley v. Pneumo Abex, LLC, No. B223233 (Cal.App. 2 Dist. 2011) (unpublished).
On behalf of ExxonMobil, Union Carbide, and/or Dow Chemical, Herrick filed amicus briefs in several asbestos appeals:
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014) (reversing and rendering where causation evidence was insufficient to link occasional asbestos exposure to mesothelioma).
Smith v. Kelly-Moore Paint Co., Inc.,307 S.W.3d 829 (Tex.App.--Ft. Worth, 2010, no. pet.) (affirming summary judgment based upon asbestos plaintiff's failure to come forward with "chrysotile-only" epidemiology).
Exxon Mobil Corp. v. Altimore, 256 S.W.3d 415 (Tex.App.--Houston [14th Dist.] 2008, no pet.) (reversing and rendering where evidence was legally insufficient to support punitive damages).
Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex.App.--Dallas, 2007, pet. denied) (reversing and rendering where asbestos injury was not foreseeable in the household exposure context).
Herrick represented SmithKline Beecham in the fen/phen diet drug litigation, assisting with the coordination of its national Daubert strategy. Herrick handled the first Daubert hearing in the fen/phen litigation, a hearing in Texas state court that resulted in an order striking all phentermine causation evidence. Smith v. American Home Products, No. 97-55545-A, 164th Judicial District, Harris County, Texas, March, 1999.
Herrick assisted with SmithKline's briefing in the Fen/Phen federal MDL which resulted in an opinion holding all phentermine causation evidence inadmissible. In re Diet Drugs Products Liability Litig., 2000 WL 962545 (E.D.Pa. 2000).
Herrick was involved in all phases of 3M's national Daubert strategy challenging as "junk science" the plaintiffs' expert testimony purporting to link breast implants to systemic disease. 3M achieved an impressive Daubert record that included more than a dozen wins at the trial court level and five wins -- and no losses -- at the appellate level.
Herrick also handled all legal/appellate issues for 3M in five jury trials in Texas. Of the 12 breast implant plaintiffs whose cases were tried, not one ultimately recovered from 3M. All of the appeals Herrick handled for 3M were successful.
Herrick was involved in presenting the breast implant disease causation science to three panels of neutral scientists. All three panels issued reports exonerating breast implants on the disease causation issue.
Herrick's Reported Breast Implant Cases:
Smith v. Minnesota Mining & Mfg. Co, 2002 WL 32264 (Cal.App. 4 Dist. 2002) (unpublished) (affirming take nothing judgment for 3M on Frye grounds).
Fletcher v. Minnesota Mining and Mfg. Co., 57 S.W.3d 602 (Tex.App.--Houston [1st Dist.] 2001, pet. denied) (affirming take nothing judgment for 3M on procedural grounds).
Polston v. McGhan Medical Corp., 2000 WL 688216 (Tex.App.--Dallas, May 22, 2000, no pet.) (unpublished) (affirming summary judgment for 3M on Daubert grounds).
Toledo v. Medical Engineering Corp., 50 Pa.D.&C.4th 129 (Pa.Dist.Ct. 2000) (granting Frye motion and excluding expert testimony purporting to link breast implants to systemic pain).
Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir. 1999) (affirming summary judgment for 3M on Daubert grounds).
Minnesota Mining and Mfg. Co. v. Atterbury, 978 S.W.2d 183 (Tex.App.--Texarkana 1998, pet. denied) (reversing $1.5 million judgment on plaintiffs' verdict and rendering judgment for 3M on Daubert grounds).
In re Bristol-Myers Squibb Co., 975 S.W.2d 601 (Tex. 1998) (orig. proceeding) (outlining standards to be applied by trial courts in consolidating multi-party cases for trial).
In re Breast Implant Litigation, 11 F.Supp.2d 1217 (D.Colo. 1998) (holding all disease causation evidence inadmissible under Daubert).
Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387 (D.Or. 1996) (relying on reports of neutral, court-appointed experts in holding all disease causation evidence inadmissible under Daubert).
In re Breast Implant Cases, 942 F.Supp. 958 (E. and S.D.N.Y. 1996) (Weinstein, J.) (relying on reports of neutral, court-appointed experts in holding disease causation evidence insufficient to defeat summary judgment).
Bailey v. Dow Corning Corp., 1996 WL 937659 (Tex.Dist.Ct. 1996) (holding all disease causation evidence inadmissible under Daubert).