Current Employment Position(s)

Partner

Lawyer Overview

David Alden has represented clients in high-profile and high-stakes litigation matters, including consumer products liability litigation, pharmaceutical product liability litigation, and securities and accounting fraud litigation. He has defended clients in individual, consolidated, coordinated, and class actions seeking recovery for alleged personal injuries and economic damages under various legal theories.

David also has defended clients in novel, nontraditional matters. For example, he defended R.J. Reynolds Tobacco Company against the federal government's action seeking injunctive and other relief based on the civil provisions of the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO. He also defended Reynolds in actions brought by state attorneys general, unions, and other third-party payors seeking to recover purported excess health care costs allegedly attributable to product use.

In addition, David has represented a wide range of other clients. For example, he currently is a member of the Firm's team representing Wyeth in litigation relating to its antidepressant Effexor. For two years, David was a member of the in-house litigation department at Ernst & Young. There, he defended Ernst & Young against accounting malpractice, fraud, RICO, and securities claims arising out of audits of, among others, a failed health insurer, a foreign bank, and several manufacturing concerns.

David has appeared in state and federal trial courts throughout the country, including in southern Illinois, Louisiana, Mississippi, Minnesota, and West Virginia state courts, and has represented and advised clients in multiple appeals from both interlocutory and final orders. He participated in the nine-month bench trial in United States v. Philip Morris USA, Inc. (D.D.C.) and in jury trials in Giles v. Wyeth (S.D. Ill.), Nunnally v. R.J. Reynolds Tobacco Co. (Cir. Ct. DeSoto County, Mississippi), and Cordial ex rel. Blue Cross Blue Shield of West Virginia v. Ernst & Young (Cir. Ct. Kanawha County, West Virginia).

David is a recognized authority on issues relating to the attorney-client privilege and work product protection. He serves as Jones Day's coordinating partner on issues relating to the attorney-client privilege and work product protection and has published numerous articles on those and related topics. He has represented Reynolds and other clients against, among others, assertions that (a) confidential communications were not privileged or protected, including communications involving in-house counsel, outside counsel, and employees of different entities in a corporate family; (b) the so-called crime fraud exception applied; and (c) waivers resulted from compelled productions and public disclosures of privileged and protected documents.

David serves on Jones Day's electronic discovery committee and has substantial experience in addressing electronic discovery issues. He also has worked on a number of pro bono projects. David is, along with The Ohio Innocence Project, representing an inmate appealing a trial court's order denying post-conviction DNA testing; has participated in the walk-in legal advice clinics run by The Legal Aid Society of Cleveland; and has prepared comments on behalf of various groups on the "Exposure Draft, Disclosure of Certain Loss Contingencies, an amendment to FASB Statements No. 5 and 141(R)."

His recent decisions include:

• Giles v. Wyeth, 556 F.3d 596 (7th Cir. 2009) (affirming jury verdict in favor of prescription drug manufacturer; rejecting claims that trial court erred by excluding post-event warnings while admitting evidence relating to post-event scientific developments)

• Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203 (5th Cir. 2008) (affirming entry of summary judgment for prescription drug manufacturer based on the learned intermediary doctrine), affirming 471 F. Supp. 2d 739 (E.D. Tex. 2006)

• Dobbs v. Wyeth, 530 F. Supp. 2d 1275 (W.D. Okla. 2008) (granting motion for summary judgment in prescription drug product liability action based on federal preemption), appeal pending, No. 08-6018 (10th Cir.)

• Giles v. Wyeth, 500 F. Supp. 2d 1063 (S.D. Ill. 2007) (granting in part and denying in part motion for summary judgment in prescription drug product liability action based on state-law grounds)

• Giles v. Wyeth, 500 F. Supp. 2d 1048 (S.D. Ill. 2007) (denying motion to exclude plaintiff's experts opinions based on Daubert and Fed. R. Evid. 702 in prescription drug product liability action)

• Ackermann v. Wyeth Pharmaceuticals, 471 F. Supp. 2d 739 (E.D. Tex. 2006) (adopting Magistrate Judge's Report and Recommendation that recommended granting motion for summary judgment seeking dismissal of product liability claims against prescription drug manufacturer based on state law grounds, primarily the learned intermediary doctrine), affirmed, 526 F.3d 203 (5th Cir. 2008)

• Ackermann v. Wyeth Pharmaceuticals, 456 F. Supp. 2d 809 (E.D. Tex. 2006) (denying motion to exclude evidence relating to plaintiff's decedent's use of antidepressant manufactured by nonparty pharmaceutical manufacturer)

• Ackermann v. Wyeth Pharmaceuticals, [Current Decisions] Prod. Liab. Rep. (CCH) ¶ 17,563 (E.D. Tex. Sept. 8, 2006) (Bush, M.J.) (recommending that district court grant motion to dismiss failure-to-warn claims asserted against prescription drug manufacturer based on federal preemption)

• United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) (judgment following nine-month bench trial granting in part and denying part United States' request for injunctive relief against U.S. cigarette manufacturers based on the civil RICO injunctive relief provision, 18 U.S.C. § 1964(a)), appeal pending, No. 06-5267 (D.C. Cir.)

• Jackson v. Pfizer, Inc., et al., 432 F. Supp. 2d 964 (D. Neb. 2006) (denying motion for summary judgment seeking dismissal of failure-to-warn claims against prescription drug manufacturer based on federal preemption)

• Bearden v. Wyeth, 482 F. Supp. 2d 614 (E.D. Pa. 2006) (granting in part and denying in part motion for summary judgment in prescription drug product liability action based on state-law grounds)

• Baumgardner v. Wyeth Pharmaceuticals, No. 05-05720-JF, 2006 WL 1308232 (E.D. Pa. May 11, 2006) (dismissing complaint filed on behalf of 10 individual plaintiffs against prescription drug manufacturer's unincorporated division and directing that actions be filed separately against entity that is subject to suit)

• United States v. Philip Morris USA, Inc., et al., No. 99-CV-2496 (GK), 2004 U.S. Dist. LEXIS 24546 (D.D.C. Sept. 12, 2004) (granting in part and denying in part motion to compel production of documents withheld by defendant based on attorney-client privilege, work product protection, and joint defense privilege claims)

• United States v. Philip Morris USA, Inc., et al., No. 99-CV-2496 (GK), 2004 U.S. Dist. LEXIS 24517 (D.D.C. Sept. 9, 2004) (granting in part and denying in part motion to compel production of documents withheld by United States based on presidential communications and deliberative process privilege claims)

• S.E.C. v. R.J. Reynolds Tobacco Holdings, Inc., [2004-2005 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 93,034, 2004 U.S. Dist. LEXIS 24545 (D.D.C. June 29, 2004) (granting in part and denying in part motion for protective order in subpoena enforcement proceeding)

• United States v. Philip Morris Inc., et al., 219 F.R.D. 203 (D.D.C. 2004) (denying motion to compel review and production or logging of U.S. cigarette manufacturers' law firms' documents)

• Nunnally v. R.J. Reynolds Tobacco Co., 869 So. 2d 373 (Miss. 2004) (affirming defense jury verdict in individual smoker's product liability action)

• United States v. Philip Morris Inc., et al., 218 F.R.D. 312 (D.D.C. 2003) (granting in part and denying in part motion to compel documents withheld by United States based on deliberative process privilege claims)

• United States v. Philip Morris Inc., et al., 209 F.R.D. 13 (D.D.C. 2002) (sustaining objections to Special Master's recommendation that subpoenas served on in-house attorneys be quashed)

• United States v. Philip Morris Inc., et al., 212 F.R.D. 421 (D.D.C. 2002) (granting motion seeking ruling that publicly available privileged and protected documents produced under compulsion were no longer privileged or protected)

• White v. R.J. Reynolds Tobacco Co., 109 F. Supp. 2d 424 (D. Md. 2000) (granting summary judgment to defendant in individual personal injury action)

• Huffman v. American Tobacco Co., et al., No. 98-C-276, 1999 WL 33721486 (Cir. Ct. Kanawha County, W. Va. Aug. 4, 1999) (denying motion seeking ruling that publicly available privileged and protected documents produced under compulsion were not privileged or protected)

• International Union of Operating Engineers, Local No. 121, Health and Welfare Fund v. Philip Morris Inc., et al., No. 3: 97-0708, 1999 U.S. Dist. LEXIS 21097 (S.D.W. Va. June 28, 1999) (denying motion seeking ruling that publicly available privileged and protected documents produced under compulsion were not privileged or protected)

• Iron Workers Local Union No. 17 Insurance Fund v. Philip Morris Inc., et al., 35 F. Supp. 2d 582 (N.D. Ohio 1999) (granting motion seeking ruling that publicly available privileged and protected documents produced under compulsion were not privileged or protected in third-party payor reimbursement action).

Areas of Practice

• Product Liability & Tort Litigation
• Pharmaceutical, Medical Device, and Other Health Care Product Liability Litigati
• e-Discovery

Representative Cases

• Ackermann v. Wyeth Pharmaceuticals (E.D. Tex.)
• Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008)
• Baumgardner v. Wyeth Pharmaceuticals (E.D. Pa.)
• Bearden v. Wyeth Pharmaceuticals (E.D. Pa.)
• Huffman v. American Tobacco Co., et al. (Kanawha County, W. Va. Cir. Ct.)
• International Union of Operating Engineers Local 132, Health and Welfare Fund v. R.J. Reynolds Tobacco Company, et al. (S.D. W.Va.)
• Iron Workers Local 17 et al. v. Philip Morris, Inc. et al., 186 F.R.D. 453 (N.D. Ohio)
• Jackson v. Wyeth Pharmaceuticals (D. Neb.)
• Nunnally v. R.J. Reynolds Tobacco Co. (DeSoto County, Miss. Cir. Ct.; Miss. Sup. Ct.)
• Securities & Exchange Commission v. R.J. Reynolds Tobacco Holdings, Inc. (D.D.C.)
• United States v. Philip Morris USA Inc., et al., Civ. No. 99-2496 (GK) (D.D.C.)
• White v. R.J. Reynolds Tobacco Co. (D. Md.)

West Practice Categories

Alcoholic Beverages, Apparel, Asbestos, Chemicals & Cosmetics, Firearms, Food & Agricultural Products, Litigation & Appeals, Machinery & Tools, Medical Products & Devices, Motor Vehicle Defects, Pharmaceutical Products, Products Liability Law, Recreational Products, Tobacco

Bar Admissions

• Ohio

Education

• U of Michigan - Ann Arbor

Published Works

• Clarifying The Law Of Implied Privilege Waivers, Mealey's Ligitation Report: Discovery, Vol. 6, #6, 2009
• New Federal Rule of Evidence 502 and Possible Litigation Document Review Cost Savings, 2008
• 'One-Way Street' Rulings, Corporate Privilege, The National Law Journal, 2008
• Wither the Privilege for In-House Counsel?, Product Safety & Liability Reporter, Vol. 35, No. 45, 2007
• Deconstructing Desiano: Why the Sixth Circuit Reached the Better Conclusion, coauthor, Product Safety & Liability Reporter, Vol. 34, No. 42, pp. 1061-1063, 2006
• Work Product Doctrine: Protecting Opinions, National Law Journal, 2003
• Privilege Protection: Consulting P.R. Firms, National Law Journal, 2001
• Litigation: Joint Defense Issues, National Law Journal, 2001
• Privilege Issues: Subpoena by Congress, National Law Journal, 2000
• Corporate Law: Defining Privilege, National Law Journal, 1999

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