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Darrell K. Cherry

Darrell K. Cherry Partner
(504) 593-0614
dcherry@dkslaw.com

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Darrell Cherry is a partner in the firm whose practice philosophy is to bring, through focused personal attention, a customized approach for each case, designed to maximize winning and achieving the client’s goals at an acceptable cost. Mr. Cherry’s tort litigation experience includes serious personal injury, property damage and wrongful death claims arising from aviation (both commercial and general), products liability, oil and gas exploration activities, admiralty, and chemical exposures (latent and acute exposure toxic torts). He also defends under professional E&O coverage (legal, insurance broker, accounting). He has handled insurance coverage litigation involving aviation and CGL coverages, as well as business and contractual disputes. He has an appellate practice in the above areas of law, and has participated in complex litigation.

Mr. Cherry has, for three decades, defended numerous claims arising from the aviation activities of certificated carriers and operators of fixed wing aircraft under Parts 121,125 and 129, and fixed wing and rotorcraft operations under Part 135, from major air crashes and off-runway incidents to routine passenger injury claims and Warsaw/Montreal Convention Claims, including strokes. He also has extensive experience defending private civil aircraft crashes involving deaths and serious injuries, as well as product liability claims against component parts manufacturers.

Recent successes include extricating a helicopter repair facility with no-pay dismissals from a 10-death S-76A crash offshore, involving avionics upgrade and design claims; defending the insurer against excess liability arising from a pilot who crashed his Beech Baron in New Hampshire, killing all six passengers and himself; and, with Isaac Ryan, obtaining in 2012 a dismissal by developing personal jurisdiction defense relating to claims against an FBO arising from a Nevada crash.

Earlier in his career, Mr. Cherry was one of two primary associate trial counsel in multi-district wrongful death/personal injury/property damage litigation arising from the crash of Pan Am 759 into a suburban neighborhood near New Orleans in 1982. That litigation involved approximately 200 injury and wrongful death suits and was litigated from 1982 through 1985. He personally conducted the discovery in over sixty wrongful death suits, directly participating in over twenty-five Pan Am jury trials, including twelve wrongful death suits, a burn case involving 85% burns to mother and eight-year-old daughter, psychic injury claims of neighborhood residents, personal injury claims (e.g.,back injury, knee injury) and numerous house damage claims involving extensive engineering investigation and testimony. He has developed the law on Warsaw Convention and Montreal Convention issues, including notice issues, “accidents,” liability and damages. See, e.g., Trivelloni-Lorenzi v. Pan American World Airways, 789 F.2d 1092 (5th Cir. 1986), 821 F.2d 1147 (5th Cir. 1987) (en banc), reversed in favor of Pan Am on Warsaw Convention issue, 109 S.Ct. 1928 (U.S. 1989), on remand, 883 F.2d 17 (5th Cir. 1989).

Airport Regulation and Federal Preemption
Mr. Cherry obtained in U.S. Fifth Circuit a res nova ruling affording a federal venue under federal question jurisdiction to pursue in federal court a declaratory judgment action on behalf of a local airport authority against an adjoining municipality who sought to interfere with airfield construction projects made the subject of federal grants. City of New Orleans v. City of Kenner, 974 F.2d 748 (5th Cir. 1992).

Admiralty
Admiralty law often intersects with personal injury claims in southern Louisiana given the prevalence of oil and gas offshore activities. Mr. Cherry has obtained several admiralty precedents in connection with platform, helicopter and work vessel injuries. Mr. Cherry prevailed in the District Court and then in the U.S. Fifth Circuit in Scarborough v. Clemco, 391 F.3d 660 (5th Cir. 2004)(1) having products used by a seaman for his core functions fall within maritime jurisdiction; and (2) having the Court apply the pecuniary damage limitation of the Jones Act to a non-employer maker of equipment that injured a seaman, thus greatly reducing the claim by eliminating non-pecuniary claims. Miles v. Apex, 498 U.S. 19 (1990) was successfully advocated to require a uniform general maritime remedy where seaman are involved.

Mr. Cherry obtained a U.S. Fifth Circuit precedent applying the Gilbert forum non conveniens criteria. Trivelloni-Lorenzi v. Pan American World Airways, 789 F.2d 1092 (5th Cir. 1986), 821 F.2d 1147 (5th Cir. 1987) (en banc). He obtained similar precedent under the Outer Continental Shelf Lands Act requiring the law of the adjoining state to be applied to a rig accident, thereby precluding imposition of punitive damages, under a depecage “choice of law” theory. Wooton v. Pumpkin Air, Inc., 889 F.2d 848 (5th Cir. 1989).

Products Liability, General Tort
Mr. Cherry has defended numerous products against claims of defects and causation of injuries, including automobiles, avionics, surgical devices, pacemaker leads, pharmaceuticals, nutritional supplements, protective gear such as blast hoods, respirators, pistols, pumps, valves, appliances, hardware, and rigging devices for lifting by crane.

Toxic Tort/Environmental
Mr. Cherry has defended many silicosis claims, as well as other toxic exposures, such as SO2, H2S, aromatic hydrocarbons and DBCP. He has also defended RCRA/Superfund claims.

From 1997-onward, Mr. Cherry handled silicosis litigation subgroups at the firm for a protective gear manufacturer. These cases were filed and pend throughout Louisiana. The most recent silicosis trial was an eight-day jury trial of a six-plaintiff wrongful death suit (31st JDC), representing the sole defendant, in August of 2009, resulting in a full defense verdict. In connection with the case, he obtained a precedent-setting en banc ruling prohibiting the retroactive application of a Katrina-related extension of the abandonment statute. Henry v. SBA Shipyards, 24 So.3d 956 (La. App. 3rd Cir. 2009)(en banc), cert. denied, 27 So.3d 853 (La. 2010).

Expropriation
Mr. Cherry has represented property owners in expropriation and inverse condemnation actions in state and federal court. His most recent involves an inverse taking by the U.S. Army Corps of Engineers post-Katrina, resulting in a finding of federal liability for the taking of levee clay. National Food & Beverage Co. v. U.S., 96 Fed. Cl. 258 (12/10/10) and 103 Fed. Cl. 63 (1/23/12).

Appellate
Mr. Cherry also handles appellate work, including brief writing to the U.S. Supreme Court, U.S. Fifth Circuit, Louisiana Supreme Court, and all Louisiana circuit appellate courts. His extensive appellate experience in addition to the topics set forth above includes complex legal issues, including Foreign Sovereign Immunities Act, Warsaw Convention (Carriage by Air), personal jurisdiction, subject matter jurisdiction, admiralty jurisdiction, federal inherent power (one involving a $416 million award, 1995), federal preemption in numerous contexts, choice of law, forum non-conveniens, multi-district litigation, Outer Continental Shelf Lands Act, enforceability of Louisiana Oilfield Indemnity Act, arbitration awards, nuances of the attorney-client privilege, including crime-fraud exception, limits of mental injury recovery, exclusion of expert opinions, securities fraud under federal and state laws, expropriation and constitutional due process rights, Unfair Trade Practices Act, numerous procedural issues such as new trial, remittitur, directed verdict, jury charges, as well as evidentiary issues of all kinds. He also taught various topics at seminars, including federal jurisdiction, preemption, airport liability, products liability, economic damages and trial/litigation techniques.

Professional Activities and Honors
Louisiana State Association
Federal Bar Association
Defense Research Institute
Louisiana Association of Defense Counsel
New Orleans Bar Association
American Bar Association (Litigation Sections, Aviation Law and Products)
AV Preeminent Martindale-Hubbell Peer Review Rating

Education
J.D., summa cum laude, Tulane University, 1979
-- Order of the Coif., 1979
-- Tulane Law Review, 1978-1979
B.S., Economics, Tulane University, 1976
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