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David F. Herr 
Partner

p 612.672.8350
f612.642.8350
david.herr@maslon.com

3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402

David Herr, partner in Maslon's Litigation Group, is a highly regarded appellate lawyer and complex case litigator. He is frequently sought out to provide practical and sophisticated advice on how to resolve difficult, multi-party disputes in trial courts and arbitral forums, as well as in the appellate courts. David is president of the Academy of Court-Appointed Masters and past president of the American Academy of Appellate Lawyers. He regularly argues cases in the Minnesota appellate courts and the 8th Circuit Court of Appeals. David annotates the Federal Judicial Center's Manual for Complex Litigation, published and distributed nationally by Thomson West.

Areas of Practice
  • Litigation
  • Appeals
  • Minnesota Appeals
  • Eighth Circuit Appeals
  • U.S. Supreme Court Appeals
  • Appeals to Other Courts
  • Consulting on Appellate Matters
  • Amicus Curiae
  • Products Liability
  • Mass Torts, MDL and Class Actions
  • Punitive Damages
Education
  • William Mitchell College of Law, St Paul, Minnesota, 1978
    J.D.
    Honors: Cum Laude
    Law Review: Staff Member, William Mitchell Law Review, 1975 - 1976
    Law Review: Editor, William Mitchell Law Review, 1976 - 1977
  • University of Colorado, Boulder, Colorado, 1977
    M.B.A.
  • University of Colorado, Boulder, Colorado, 1972
    B.A.
Bar Admissions
  • Minnesota, 1978
  • U.S. Supreme Court, 1989
  • U.S. Court of Appeals Federal Circuit, 1990
  • U.S. Court of Appeals 3rd Circuit, 1982
  • U.S. Court of Appeals 5th Circuit, 2000
  • U.S. Court of Appeals 6th Circuit, 1998
  • U.S. Court of Appeals 8th Circuit, 1978
  • U.S. Court of Appeals 9th Circuit, 1998
  • U.S. Court of Appeals 10th Circuit, 1998
  • U.S. Court of Appeals 11th Circuit, 1999
  • U.S. Court of Federal Claims, 1986
  • U.S. District Court District of Minnesota, 1978
  • U.S. District Court Eastern District of Wisconsin, 1986
  • U.S. District Court Eastern District of Michigan, 1998
Professional Associations and Memberships
  • Academy of Court-Appointed Masters - President, 2008
  • American Academy of Appellate Lawyers - Fellow, President 2004-2005
  • Hennepin County Bar Association - Member
  • American Law Institute - Elected Member
  • Minnesota State Bar Association, Section of Civil Litigation, 1986 - 1988 - Chair
  • Minnesota State Bar Association, 1978 - Present - Member
  • Minnesota State Bar Association, 1990 - 1992 - Chair, Task Force on Complex Litigation
  • Minnesota Supreme Court, 1983 - Present - Reporter, Advisory Committee on Rules of Civil Procedure
  • Minnesota Supreme Court, 1989 - 1992 - Reporter, Advisory Committee on Uniform Local Rules
  • Minnesota Supreme Court, 1992 - Present - Reporter, Advisory Committee on General Rules of Practice
  • Minnesota Supreme Court, 1996 - Present - Co-Reporter, Advisory Committee on Rules of Appellate Procedure
Classes Taught
  • Hold Everything! Document preservation requirements and 'litigation holds' and how to survive them. What matters. A Maslon speaker series. November 2006
  • Program Planning Committee and Faculty Member, The Art and Science of Serving as a Special Master in Federal and State Courts, ALI-ABA, November 3, 2005 - November 4, 2005
  • Adjunct Professor, Recent Supreme Court Decisions, William Mitchell College of Law, 2002 - Present
  • Adjunct Professor, Advanced Civil Procedure, William Mitchell College of Law, 1990 - 1999
  • Adjunct Professor, Management of Complex Litigation, William Mitchell College of Law, 1985 - 1998
  • Adjunct Professor, Insurance Law, William Mitchell College of Law, 1982 - 1992
  • Adjunct Professor, Judicial Internship Clinic, William Mitchell College of Law, 1978 - 1987
  • Numerous CLE programs, MCLE, MILE
Publications
  • Why Guess? Erie Guesses and the Eighth Circuit, 36 Wm. Mitchell L. Rev. 1625, 2010
  • Multidistrict Litigation Manual, West, 2009
  • Admissibility of E-Evidence in Minnesota: New Problems or Evidence as Usual? (Co-Authored with Keiko L. Sugisaka), 35 Wm. Mitchell L. Rev. 1453, 2009
  • Suggestions from the Practicing Bar: Things Practitioners Wish the Court of Appeals Would Do Differently (Co-Authored with Haley N. Schaffer), 35 Wm. Mitchell L. Review 1286, 2009
  • Courtroom Handbook of Minnesota Evidence (Co-Authored with Peter N. Thompson), Thomson West, 2009
  • Annotated Manual for Complex Litigation, 4th, Thomson West, 2009
  • Minnesota Trial Objections (Co-Authored with Peter N. Thompson), Thomson West, 2008
  • Eighth Circuit Appellate Practice Manual (Co-Editor with Hon. Donald P. Lay, Eric J. Magnuson, and Mary R. Vasaly), 4th ed., Minnesota Continuing Legal Education, 2001; 4th ed. 2007, 2007
  • Improving the Odds on Appeal (Co-Author with Cynthia F. Gilbertson), 50 Bench and Bar of Minnesota 17, August, 2003
  • Applying Amended Rule 26(b)(1) in Litigation: The New Scope of Discovery (Co-Authored with Jeffrey W. Stempel), 199 F.R.D. 396, 2001
  • Minnesota Practice: General Rules of Practice Annotated, Thomson West, Vol. 3A, 2006
  • Motion Practice (Co-Author with Roger S. Haydock), Little Brown, 1985, 2nd ed. 1990, 3rd ed. 1998, 4th ed. 2006
  • Chapter 66: Appeals (Co-Authored with John J. Ursu and Thomas A. Boardman), 4 Successful Partnering Between Inside and Outside Counsel 66-1 (2000; Supp. 2006)
  • Handling Appeals: Beyond Litigation as Usual (Co-Authored with John Borg), ACCA Docket, 16, No. 6 at 34, 1998
  • Amici Curiae: Not Just Friends of the Court Anymore (Co-Author, Michael C. McCarthy), The Practical Litigator, Vol. 9, No. 3, 1998
  • Summary of Minnesota Appellate Procedures/Basics of Appeals/Preparing for Appeal in the Trial Court/Timeline and Deadline, 1992; 2nd ed. 1998; 3rd ed. 2003
  • Multidistrict Litigation, Little Brown, 1986, Supp. 1996
  • Discovery Practice (Co-Author with Roger S. Haydock), Little Brown, 4th ed. 2006
  • Minnesota Practice, West, 4 Vols., 1986, 3rd ed. 1996, 4th ed. 2002-05; Supp. 2007
  • Minnesota Evidence Rules/Trial Objections/Evidence Basics (Co-Authored with Hon. Patrick W. Fitzgerald), 1990
  • The Trial of a Punitive Damages Case In Minnesota - A Judicial Perspective (Co-Authored, Hon. Donald D. Alsop), 11 William Mitchell Law Review 319, 1984
  • Handling a Civil Case In the Minnesota Court of Appeals (Co-Authored, Eric J. Magnuson), 41 Bench & Bar of Minnesota 17, September, 1984
Honors and Awards
  • Best Lawyers' 2010 Minneapolis Appellate Lawyer of the Year
  • Marcy S. Wallace Award of Excellence in Leadership, William Mitchell Law Review, 2009
  • Leading Individual Attorney in Minnesota for Appellate Law, Chambers USA 2007-2010
  • The only Minnesota Litigator ranked a Leader for Appellate Litigation, Chambers USA, 2006
  • Attorney of the Year, Minnesota Lawyer, 2005
  • Master of the Bench, Warren E. Burger Inn of Court
  • Distinguished Alumnus Award, William Mitchell College of Law, 1997
  • Advocate's Award, Civil Litigation Section of the Minnesota State Bar Association, 1999
  • Top-Listed in The Best Lawyers in America
  • Minnesota Super Lawyers
  • Top 100 Minnesota Super Lawyers
  • AV Rating, Martindale-Hubbell (AV, BV, and CV are registered certification marks of Reed Elsevier Properties, Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies)
Experience
  •  Clifford L. Whitaker, et al. v. 3M Co., 764 N.W.2d 631 (Minn. Ct. App. 2009) [established standards for obtaining class certification (counsel for Minnesota Chamber of Commerce, amicus curiae)]
  • Lisa A. Broek v. Park Nicollet Health Services et al., No. C-9-02-1611 (Minn. Ct. App.) [obtained reinstatement of medical malpractice claim following dismissal on statute of limitations grounds]
  • Otter Tail Power Co. v. Surface Transportation Board, Nos. 06-1962 & 06-2412 (8th Cir., argued January 8, 2007) [appellate challenge to rate proceeding before Board]
  • OneBeacon Ins. Co. v. A.P.I., Inc., No. A06-1229  (Minn. Ct. App.) (briefing completed—awaiting argument) [appellate counsel to Respondent on appeal from $60 million insurance coverage judgment]
  • Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508 (Minn. 2006) [won reversal of dismissal of appeal for untimeliness due to court of appeals failure to recognize holiday]
  • Jaenty, Inc. v. Northern States Power Co., (Minn. 2006) [won affirmance of appellate court decision affirming dismissal of actions relating to gas explosion on statute-of-limitations grounds; argued on behalf of several separately represented respondents]
  • Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006) [appellate counsel for Minnesota Lawyers Mutual as amicus curiae in case involving novel interpretation of Minnesota’s statute of limitations for malpractice actions arising from drafting of antenuptial agreements]
  • State of Minnesota v. Philip Morris USA, Inc., 713 N.W.2d 350 (Minn. 2006) [appellate counsel on unsuccessful challenge that health impact fee of 75 cents did not violate 1998 settlement agreement between state and cigarette manufacturers and distributors]
  • MedCam, Inc. v. MCNC,  414 F.3d 972 (8th Cir. 2005) [court declined to reverse district court order compelling arbitration]
  • Afremov v. AGA, numerous reported and unreported decisions.  [This shareholder dispute involved numerous appellate proceedings arising from a single trial court action, applications for extraordinary writs, discretionary appeals, interlocutory appeals as of right, and petitions for further review by the Minnesota Supreme Court of numerous Court of Appeals decisions.  The Maslon appellate team prevailed in all of these except one ancillary award of sanctions that was reversed by the court of appeals after the case had settled on all merits issues.]
  • Triple Five of Minnesota, Inc. v. Simon, 404 F.3d 1088 (8th Cir. 2005) [won partial reversal in case involving complex claims of ownership and partnership rights in Minnesota’s Mall of America]
  • Roehrdanz v. Brill, 682 N.W.2d 626 (Minn. 2004) [obtained reversal of court of appeals decision on proper method of service of notice of removal]
  • Schumacher v. Tyson Fresh Meats, Inc., (8th Cir. 2004)  [obtained affirmance of class certification in expedited appeal under Fed. R. Civ. P. 23(f)]
  • Tuttle v. Lorrilard Tobacco Co., 344 F.3d 753 (8th Cir. 2005) [affirming dismissal of variety of tort claims]
  • Seed v. Astra Genstar Partnership, 2003 WL 178790 (Minn. Ct. App. 2003)
  • In re Breast Implant Ins. Coverage Litig., 652 N.W.2d 46 (Minn. Ct. App. 2002), affirmed in part, 667 N.W. 2d 405 (Minn. 2003) [insurance coverage litigation and appeals involving over 100 parties]
  • Barbara Grutter v. Lee Bollinger, et al., and Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, et al., 188 F.3d 394 (6th Cir. 1999), aff'd, 123 S.Ct. 2411 (2003), intervention appeal, 288 F.3d 732 (6th Cir. 2002), rev'd, 123 S.Ct. 617 (2003) [two companion civil rights class actions]
  • Todd v. Ortho Biotech, Inc., 138 F.3d 733 (8th Cir. 1998), cert. granted, vacated and remanded, 525 U.S. 802 (1999) [won reversal of $780,000 sexual harassment award on basis that trial court applied erroneous standard for finding liability under state and federal law]
  • Minnesota Min. & Mfg. Co. v. Nishika, Ltd., 565 N.W.2d 16 (Minn. 1997) [on certified questions from Texas Supreme Court relating to multi-million dollar UCC dispute]
  • In re Minnesota Asbestos Litigation, 552 N.W.2d 242 (Minn. 1996), rev'g 540 N.W.2d 896 (Minn. App. 1995) [obtained reversal of case involving unconstitutional exercise of jurisdiction over Australian corporation; David Herr served as national coordinating counsel for client]
  • Independent School Dist. No. 622 v. Keene Corp., 511 N.W.2d 728 (Minn. 1994) [obtained reversal of multi-million dollar punitive damage award, including fraud claim]
  • La Societe Générale Immobiliére v. Minneapolis Community Development Agency, 44 F.3d 629 (8th Cir. 1994), rev'g, 827 F. Supp. 1431 (D. Minn. 1993) [Special Appellate Counsel for Appellant; obtained reversal of multi-million dollar judgment]
  • Seagate Technology, Inc. v. International Business Machines Corp., 962 F.2d 12 (8th Cir. 1992) [represented individual appellant and obtained vacation of preliminary injunction in complex trade secrets case; leading case on "inevitable disclosure doctrine"]
  • Minnesota Mining & Mfg. Co. v. Travelers Ins. Cos., 457 N.W.2d 175 (Minn. 1990) [counsel for plaintiff Tonka Corp. on question certified from federal court. Case established standards for issuance of coverage for environmental claims]
  • Uselman v. Uselman, 464 N.W.2d 130 (Minn. 1990) [counsel for appellant in leading case establishing standards for Rule 11 sanctions in Minnesota. Won reversal of $180,000 sanction judgment; heard on accelerated review]
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Maslon Edelman Borman & Brand, LLP  | 3300 Wells Fargo Center | 90 South Seventh Street | Minneapolis, MN 55402-4140 | p 612.672.8200