As a partner of Snell & Wilmer, Dan Wittenberg concentrates his practice in representing medical device, pharmaceutical, biotechnology, consumer product and heavy equipment manufacturers in product liability litigation as well as counseling these companies on risk management strategies, recalls and regulatory matters, including those involving the FDA and CPSC. Dan has attained certification as a Global Regulatory Affairs Compliance Professional (GRACP) and has also served as national counsel for major medical device manufacturing concerns and regional counsel in mass tort cases. He also represents companies in commercial litigation and works with entities in technology transfer and intellectual property matters. Representative clients also include renewable/clean energy companies, such as a leading manufacturer of solar cells, panels, inverters and imaging detectors, as well as one of North America’s largest wind energy companies.
Representative Experience
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Pharmaceutical, Medical Device, Life Science Companies
- Participated on the regional team defending a global pharmaceutical and biotechnology company in mass tort litigation involving diet drugs as well as mass tort litigation involving phenylpropanolamine
- Serves as local counsel in various jurisdictions defending a pharmaceutical company in litigation arising out of professionally labeled OTC products as well as local counsel for a pharmaceutical company in litigation arising out of gadolinium-based contrast agents
- Served as local counsel for a medical device manufacturer in the pain pump litigation and also counsels medical device manufacturers in product recall strategies and risk management issues
Medical Device & Pharmaceutical Manufacturers & Suppliers
- Litigated, negotiated and resolved cases involving:
- non-surgical transcatheter cardiac defect closure device
- biomedical/pharmaceutical grade tubing manufacturer
- self-reinforced, resorbable polymer implants for use in orthopedic surgery
- laser surgical device for aesthetic applications
- laser ophthalmic devices
- generic pharmaceuticals in tardive dyskenisia case
- dental anesthetics
- electrosurgical generator units, electrodes and surgical devices in circumcision, dental and obstetrical oriented cases
- cryosurgery devices
- manual and power wheelchairs
- durable medical equipment including patient lifts, hospital beds, crutches, canes, walkers and scooters
- wheelchair lifts
- vascular access products
- infusion therapy devices
- disposable surgical accessories
- spinal implant and orthobiologic products
- home-use electrotherapy products
- over-the-counter pharmaceutical products
Defense of Other Manufacturers
- Forest products
- Recreational accessories including towing products and bungee cords
- Underground construction equipment
- Heavy equipment
- Industrial gas turbine power system solutions
- Manufacturers of consumer products including appliances for use in and outside of the home
Commercial Matters
- Defended a publicly traded supplier of oxygen, respiratory and home infusion products in breach of contract action arising out of its acquisition of assets of predecessor entity, as well as in commercial lease disputes, and contract action arising out of dispute over sales commissions
- Defended a leading independent provider of medical imaging software in breach of contract/licensing agreement dispute
- Defended major issuer in consumer credit card litigation
- Defended a worldwide manufacturer, distributor and servicer of medical devices in breach of contract, express indemnity and declaratory relief action arising out of suppliers' resolution of an independent underlying tort action
- Defended a debt consolidation company in unfair business practices and consumer legal remedies class action
- Successfully negotiated resolution of breach of contract action arising out of dispute over sales commissions on behalf of global industrial laser manufacturer
- Favorably resolved a medical malpractice/elder abuse action against a home health care agency
- Negotiated positive resolution on behalf of a provider of health and medical career training institution arising out of one of its phlebotomy courses
Dan Wittenberg is in Snell & Wilmer’s Commercial Litigation Group where he has represented a variety of businesses' interests in matters throughout the Western United States.
Representative Litigation
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Commercial Matters
- Represented a leading medical device manufacturer in contract and leasing litigation as well as permitting matters
- Represent a provider of web-based customer acquisition services in consumer class action litigation
- Defended a publicly traded supplier of oxygen, respiratory and home infusion products in breach of contract action arising out of its acquisition of assets of predecessor entity, as well as in commercial lease disputes, and contract action arising out of dispute over sales commissions
- Defended a leading independent provider of medical imaging software in breach of contract/licensing agreement dispute
- Defended major issuer in consumer credit card litigation
- Defended a worldwide manufacturer, distributor and servicer of medical devices in breach of contract, express indemnity and declaratory relief action arising out of suppliers' resolution of an independent underlying tort action
- Defended a debt consolidation company in unfair business practices and consumer legal remedies class action
- Successfully negotiated resolution of breach of contract action arising out of dispute over sales commissions on behalf of global industrial laser manufacturer
- Favorably resolved a medical malpractice/elder abuse action against a home health care agency
- Negotiated positive resolution on behalf of a provider of health and medical career raining institution arising out of one of its phlebotomy courses
Dan Wittenberg concentrates his practice in representing medical device, pharmaceutical, biotechnology, consumer product and heavy equipment manufacturers in product liability litigation as well as counseling these companies on risk management strategies, recalls and regulatory matters, including those involving the FDA and CPSC.
Representative Litigation
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National Litigation
- Served as national coordinating counsel for global medical device manufacturer of excimer lasers
- Participated on the regional team defending a global pharmaceutical and biotechnology company in mass tort litigation involving diet drugs as well as mass tort litigation involving phenylpropanolamine
- Serve as local counsel in various jurisdictions throughout the western U.S. defending manufacturer of orthopedic implants
- Serve as local counsel in various jurisdictions including Arizona, Colorado, and Washington defending a pharmaceutical company in litigation arising out of professionally labeled OTC products
- Participate as local counsel for a pharmaceutical company in litigation arising out of gadolinium-based contrast agents
- Served as local counsel for a medical device manufacturer in the pain pump litigation
Provide Counseling to Medical Technology and Life Science Companies
- Regulatory Matters
- Product Recall Strategies
- Risk Management Issues
- Contract Negotiations and Contract Drafting
- Business Formation
- Pursuit of Qualifying Therapeutic Discovery Tax Credit
- Intellectual Property and Technology Transfer Issues
Medical Device, Pharmaceutical and Biotechnology Manufacturers and Suppliers Litigation Matters
- On behalf of medical technology and life science manufacturers and suppliers, litigated, negotiated and resolved cases involving:
- non-surgical transcatheter cardiac defect closure device
- biomedical/pharmaceutical grade tubing manufacturer
- self-reinforced, resorbable polymer implants for use in orthopedic surgery
- laser surgical device for aesthetic applications
- laser ophthalmic devices
- generic pharmaceuticals in tardive dyskenisia case
- dental anesthetics
- electrosurgical generator units, electrodes and surgical devices in circumcision, dental and obstetrical oriented cases
- cryosurgery devices
- manual and power wheelchairs
- durable medical equipment including patient lifts, hospital beds, crutches, canes, walkers and scooters
- wheelchair lifts
- vascular access products
- infusion therapy devices
- disposable surgical accessories
- spinal implant and orthobiologic products
- home-use electrotherapy products
- over-the-counter pharmaceutical products
- contraceptive devices
- liquid embolics
- orthopedic implants
Dan Wittenberg provides counseling to manufacturers, suppliers and distributors in the areas of regulatory matters including those involving the Consumer Product Safety Commission (CPSC), product recall strategies and risk management issues.
Representative Litigation
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National Litigation
- Participate on national dryer fire team for global appliance manufacturer
- Serve as Regional Counsel to marketer and distributor of small household appliances
Represent Manufacturers in Product Liability Matters
- On behalf of manufacturers, distributors and suppliers - litigated, negotiated, and resolved cases involving:
- Appliances for use in and outside of the home
- Forest products
- Recreational accessories including towing products and bungee cords
- Underground construction equipment
- Heavy equipment
- Industrial gas turbine power system solutions
- Wind Power Products
- Fall Protection Safety Equipment
Education
- University of Denver College of Law (J.D., 1991)
- University of Colorado (B.A., 1987)
Court Admissions
- Supreme Court of Colorado
- Supreme Court of Arizona
- Supreme Court of California
- Supreme Court of Washington
- United States Supreme Court
- United States District Court, District of Colorado
- United States District Court, District of Arizona
- United States District Court, Northern District of California
- United States District Court, Western District of Washington
- United States Court of Appeals, Ninth Circuit
- United States Court of Appeals, District of Columbia Circuit
Professional Memberships & Activities
- American Bar Association
- Litigation Section
- Division Director
- Products Liability Committee, Co-Chair (2007-2010)
- Pharmaceutical Sub-Committee, Co-Chair (2005-2007)
- Products Liability Committee, Co-Chair (2007-2010)
- Associate Editor, Litigation Update
- Young Advocate Training and Outreach Committee, Co-Chair (2003-2005)
- Technology Committee, Co-Chair (2002-2004)
- Division Director
- Young Lawyers Division (1996-2002)
- Domestic Violence Institute, Project Manager
- Disaster Legal Services Committee, Chair
- National Conferences Team, Vice-Chair
- Northern California District Representative (1996-1998)
- Litigation Section
- Defense Research Institute
- Bar Association of San Francisco (1994-1997)
- Barristers Club, Treasurer & Board of Directors
- Colorado BioScience Association
- Public Policy Committee, Program Committee
- Denver Metro Chamber of Commerce, Healthcare Committee
Representative Presentations & Publications
- Sales Representative Liability Issues, Moderator, Current Issues in Pharmaceutical Litigation & Policy, GlaxoSmithKline, Philadelphia, Pennsylvania (2011)
- Industry Trends in the Current Regulatory Environment, Moderator, Fifth Annual Medical Device Symposium, Westminster, Colorado (2011)
- Plaintiff’s Medical Care and Treatment—Discovery and Evidentiary Issues, Contributing Editor, American Bar Association (2011)
- Contractual Risk Transfer, Best Practices and Considerations: Indemnification, Recalls and Clinical Trials, Featured Speaker, TechAssure Member Conference, San Francisco, California (2010)
- Recall Provisions in Contracts: Important Factors and Considerations (2010)
- Clinical Trial Agreements: Four Fundamental Factors (2010)
- Seminar Organizer, Third Annual Medical Device Symposium, Colorado Bioscience Association, Westminster, Colorado (2009)
- Indemnification Agreements and Contractual Risk Transfer for Life Science Companies, Featured Speaker, Chubb Life Sciences Producer Forum, Inverness, Colorado (2009)
- Consumer Class Actions 50 State Survey, Contributing Author, American Bar Association (2009)
- Seminar Organizer and Panel Moderator, Second Annual Medical Device Symposium, Colorado Bioscience Association, Westminster, Colorado (2008)
- Reducing Exposure to Lawsuit Liability in Life Science Product Cases: Litigation Readiness in the Electronic Age, Featured Speaker, Denver, CO (2007)
- Update on Punitive Damage Claims: A Fifty-State Survey, Contributing Author, American Bar Association (2007)
- Beyond the Preemption Preamble: A Practical Analysis of the New FDA Labeling Requirements, Moderator, Current Issues in Pharmaceutical Litigation & Policy, Kenilworth, NJ (2006)
- 'Off Label' Is 'In,' The Growing Trend of Pharmaceutical Prescriptions for Non-FDA Approved Purposes, Co-Author, American Bar Association (2006)
- The Good, The Bad, and The Ugly: A Product Liability Year In Review 2005, Featured Speaker, American Bar Association's Litigation Section's Joint CLE, Beaver Creek, Colorado (2006)
- Establishing and Maintaining the In-House Counsel Relationship, Moderator, American Bar Association Annual Meeting, Chicago, Illinois (2005)
- Litigation Defense Strategies in Medical Product Design, Panelist, Denver, CO (2005)
- The Use of Toxicology in Tort Litigation, A Survey of Federal & State Jurisdictions, Contributing Author, American Bar Association (2004)
- Hot Topics in Medical Device Litigation, Panelist, The Seventeenth Medical Device Seminar, Santa Fe, New Mexico (2004)
- California's Unfair Competition Laws, Featured Speaker, Current Issues in Pharmaceutical Litigation & Policy, Philadelphia, PA (2003)
- Standard for Design Defects - A State by State Survey, Contributing Author, American Bar Association (2003)
- Hot Topics In Products Liability Law, Moderator, American Bar Association Annual Meeting, San Francisco, CA (2003)
- The Use of Epidemiology in Tort Litigation: A Summary of Federal & State Jurisdictions, Contributing Author, American Bar Association (2003)
- Post Sale Duty to Warn, Contributing Author, A Monograph Prepared by the ABA Section of Litigation's Product Liability Committee, American Bar Association (2003)
- The Young Litigator's Toolkit, Co-Moderator, ABA Section of Litigation's Annual Meeting, Houston, TX (2003)
- The Battle Over the Role of Epidemiology in Proving General Causation: Word From the Front, Co-Moderator, Current Issues in Pharmaceutical Litigation & Policy, Bridgewater, NJ (2002)
- The Battle Over the Role of Epidemiology in Proving General Causation: Word From the Front, Author, Product Liability Newsletter, Vol. 13, No. 2, American Bar Association (2002)
- Discovery In Products Liability Actions, Author, Dri Young Lawyers' Form Book 2002, II.A-1 - II.A-40, DRI (2002)
- Terminating the Product Franchise, Co-Author, ABA Section Of Litigation Section Annual Meeting, Program Materials, pp. 47-52, Boston, MA (2002)
- Product Liability Primer, Featured Speaker, Global Quality Council Meeting, Sunrise Medical, Inc., Fresno, CA (2000)
- The Role of the Sales Representative in Products Liability Claims, Featured Speaker, Sunrise Medical, Inc.'s National Sales Meeting, Interlocken, CO (1999)
- Design Defense Strategies, Featured Speaker, Sunrise Medical, Inc.'s Growth Conference, Denver, CO (1999)
- Hot Potatoes, Proving It's Not Your Product, Featured Speaker, DRI Products Liability Seminar, New Orleans, LA (1998)
Professional Recognition & Awards
- Global Regulatory Affairs Compliance Professional (GRACP)
- Medmarc Insurance Company's Defense Attorney of the Year (1997)
Community Involvement
- American Lung Association, Colorado, Board of Directors
- Colorado BioScience Political Action Committee
- Founding Member
- Board of Directors, Member
- WOW! Children's Museum, Board of Directors
Other Professional Experience
- Gordon & Rees, LLP, Partner, San Francisco, California
- Wright Robinson Osthimer & Tatum, Shareholder, San Francisco, California
