Nerves of Steel

A look at the not-so-secret identity of Napoli Bern

Published in 2014 New York Metro Super Lawyers — October 2014

In their nearly adjacent offices on the 74th floor of the Empire State Building, Paul J. Napoli and Marc Jay Bern share a feature that’s impossible to miss: nearly identical paintings of Superman. In each, the Man of Steel is smiling confidently in front of a Manhattan skyline that is noticeably devoid of the buildings that made Napoli and Bern household names in the city—the Twin Towers.

The two men bought the paintings on impulse while strolling together through town in the Hamptons, where Napoli was staying for the weekend at Bern’s summer home.

But are both men Superman, or is one Clark Kent?

“Paul’s strengths are my weaknesses, and my strengths are his weaknesses,” Bern says. “That’s the beauty of our partnership all of these years.”

Seventeen years, to be exact. The partnership that has become the mass-tort giant known as Napoli Bern Ripka Shkolnik began at a courthouse in Nassau County in 1996 where they were trying cases across the hall from each other. Napoli, then 29, was there for an automobile-accident trial when he heard a bailiff call out: “Marc Bern!”

Bern’s reputation had preceded him as a master of medical malpractice, especially when it came to trying cases about diethylstilbestrol, a synthetic estrogen linked to cancer and pregnancy complications, Napoli had heard. So he sat in on Bern’s trial—a brain-damage case.

“He was there fighting 10 lawyers, all by himself, no second chair,” Napoli says.

After that, Napoli hung around Bern every day during lunch.

“I would be on the phone, and Paul would come up to me like a gnat,” Bern says, chuckling at the memory. “Paul was still in diapers when I was already practicing law.”

“He says I’m in diapers because I’m so much younger than he is,” Napoli explains wryly. “He certainly has more years in litigation than I do, but we see pretty much eye to eye.”

Napoli was nearly two decades Bern’s junior, and had spent his early career picking up cases from overburdened fellow lawyers. But the veteran attorney and the hardscrabble newcomer hit it off, and agreed to share the occasional medical malpractice case.

Then fen-phen happened.

Manufactured and marketed as a diet pill by the pharmaceutical company American Home Products Corp. (AHP, later Wyeth), the combination drug fenfluramine/phentermine began attracting notice from the Mayo Clinic because of its links to potentially fatal heart-valve disease and pulmonary hypertension. After 22 years trying medical-malpractice cases, Bern dove into medical journals almost as pleasure reading, where he saw an article about the fen-phen findings in 1997.

“It had all the earmarks of a great case: a big defendant, all the manufacturers, all kinds of deep pockets, a signature disease, and weight-loss drugs, which means all kinds of plaintiffs,” Bern says. “You don’t have to be a genius to know you’ve got the makings of a major case.”

Bern called around to various firms to see if anyone wanted to split advertising costs to find clients for a lawsuit against AHP. No one did. Then he called Napoli.

The two, along with Napoli’s wife, Marie, and brother-in-law Gerald Kaiser, formed a firm for the case and agreed to share costs on an ad in the New York Post. A few days later, on Sept. 15, 1997, the FDA pulled fen-phen from the market. The news made the Post’s headline. And what was nearby?

“Lo and behold, an ad for Napoli Kaiser Bern,” Bern says. “When we threw in the ad in the New York Post, our goal was 200 cases—‘Boy, would that be great!’ Well, by noon we probably had 500 calls. We didn’t even know how to keep up with them.”

They wound up with 6,000 clients, and the new partnership was suddenly in danger of being overwhelmed. That’s when Napoli’s organizational talents came to the forefront.

“Computers back then were really just word processing, and you’d have to actually walk across the street to the courthouse to file a complaint,” Napoli says. “So the first challenge was just getting organized enough to handle the filing and printing to serve complaints to 600 people. So with dozens of lawyers all coming at us at once, instead of being on our heels we had to get back on our toes and punch back.”

Napoli assembled the legal team and they invested in technology that allowed the relatively small team to handle relationships with clients in 50 states and countless jurisdictions. His skills meshed seamlessly with Bern’s natural combination of charisma and aggressiveness at the negotiating table. At one point, AHP offered a $4 billion settlement to former patients in the class-action suit. Napoli and Bern rejected that offer.

“Everybody was saying, ‘You’re crazy to object to this national settlement!’ From judges to plaintiff’s lawyers. And it made you wonder: Should you just take the money on the table, or do you believe there’s going to be more money for our clients?” Napoli says. The overall fen-phen litigation eventually led to a $22 billion settlement.

He credits Bern with the firm’s reputation for nerves of steel. During another early case, a major opposing firm representing a pharmaceutical company invited the partners to its offices in Washington, D.C. The meeting began at 10 a.m. with the usual pleasantries and handshakes—and an offer of $118 million for Napoli and Bern’s clients. By 10:06 a.m., Bern had stormed out of the office, leaving his partner bewildered.

“I was thinking, ‘At least say, “Thank you and we’ll respond later,”’ Napoli recalls. “I was thinking, ‘When a defendant starts with a $120 million offer, you don’t slam your hands on the table and walk out of the room.’”

Napoli returned rather sheepishly to the hotel, where he found Bern at the bar. The pair drank tequila till 4 p.m. When Napoli went upstairs to his room, the red message light was flashing on his hotel telephone.

“If you don’t mind,” the defense attorneys said, “we’d like to invite you back tomorrow to resolve the case.”

“The cases settled for $120 million,” says Napoli, “except the first offer was on 500 cases and the second offer with settlement was based on 87 cases. So the value per case was huge. The other remaining cases subsequently settled for more money.”

“They’re hard-nosed litigators, and they look to get every penny out of every case for the clients,” says O’Connor, O’Connor, Hintz & Deveney attorney Robert J. Bard, who has opposed the firm in court. “They’re not afraid to spend the money to litigate a case: for experts, discovery or investigation.”

If fen-phen was the case that put Napoli Bern on the map, it was the aftermath of 9/11 that introduced the firm to a global audience. The firm came to represent more than 10,000 first responders and emergency workers who’d developed a panoply of symptoms after working at Ground Zero.

For the partners, then in downtown Manhattan, it was personal.

“We had an obligation: Our offices were down there, we were right in the middle of the hot zone,” Bern says. “It never left our sight, and our every smell and touch was permeated by the World Trade Center.”

But when it came to confronting the city of New York in the wake of its biggest tragedy, many—including Napoli—thought the firm had finally bitten off more than it could chew. Bern’s passion, however, overcame Napoli’s caution.

“When we took it on, people said, ‘You’re crazy! The political implications, the legal implications!’” Bern says. “And Paul was immediately suspicious. But my feeling was, ‘Hey, these are heroes. We’re going to take it to the mat.’ I had firefighters, cops coming to me, crying about how they couldn’t breathe.”

“The more we dug in, the more we were astounded by the extent of the injuries and what really wasn’t done to protect them,” Napoli says. “We started representing one or two guys, then the police union called us, and then the PBA and the DEA, and all these other guys reporting illnesses.”

“We, our firm, had everything invested in this,” Bern says.

Though it was Bern who championed taking on the case and dealt with many of the medical aspects as well as the media, it was Napoli who acted as lead lawyer in court. “There isn’t another lawyer in the country who could have brought it to fruition the way Paul did,” Bern says. “He did a job I couldn’t have done.”

Michael Kenny was a member of the city Department of Design and Construction, the lead agency for recovery operations. After seven months at Ground Zero, he developed a nearly full-body rash, asthma, gastroesophageal reflux disease, sleep apnea, lung problems and skin cancer.

“They assured us they were going to try and give us a 110 percent effort,” Kenny says. “They were really on the ball—Napoli and Bern didn’t only show up at the press conference to talk the talk, they walked the walk.”

After eight years of work, the firm won an $816 million settlement from the defendants, including the city, the Port Authority and contractors involved in the cleanup. But the partners realized they were still hearing complaints from Sept. 11 sufferers who hadn’t met the original 2003 deadline for the congressionally created Sept. 11th Victims Compensation Fund—many because the signs of their illnesses took more than two years to appear. Bern was one of those pushing D.C. legislators to get the government to extend the deadline. In 2011, the Zadroga Act became law, extending the deadline to 2016 and setting aside an additional $2.8 billion for victims.

“Marc is very good at communicating with senators and congressmen and knocking on doors,” Napoli says.

The Sept. 11 cases were the highest-profile successes any law firm could want. But they also put a big target on its back. U.S. District Judge Alvin K. Hellerstein rejected the initial settlement, slamming both sides for their high legal fees. The air was thick with allegations that Napoli Bern was shortchanging clients, but Napoli says the firm voluntarily reduced their fees in the settlement by almost $80 million, while the defense kept their fees at the same level.

Bern insists much of it was professional jealousy. “We were hailed as heroes because of what we were doing; then the judge rejected the settlement and we were no longer thought of as heroes. We had become almost the enemies,” he says.

Napoli says his firm went above and beyond when it came to being accessible, considering it was representing 11,000 responders. “I have given every client my personal cellphone number to call me if they needed more,” he says, adding, “Lawyers tend to be litigious. If they see an opportunity, sometimes they take advantage of it. … We’re here to make our clients happy, not other lawyers happy.”

The controversy certainly didn’t stop the cases from rolling in. The firm has become the face of marquee cases including the Aurora shootings and the Costa Concordia shipwreck. And Napoli began trying asbestos lawsuits, which conventional wisdom had declared a moribund field.

The firm has matured as well. Bern continues to try cases and serves as the public face of the firm, while Napoli is effectively the managing partner orchestrating big-picture strategy. Alan Ripka came on as a senior partner in 2006. If Bern is the commander in chief and Napoli the top general, Ripka became the officer who led from the trenches, particularly when it came to New York-based personal injury and medical malpractice cases.

“I’m not an office guy, I don’t like sitting at a desk,” Ripka says. “We’re not absentee owners, we’re not names on a wall. I like being in a courtroom, with the lawyers, stenographers, judges and people watching.”

In 2011, Hunter Shkolnik joined the firm, becoming its helicopter specialist—both literally and figuratively. He’s not only Napoli Bern's aviation-case expert, he’ll also chopper into far-flung jurisdictions to handle the complexities of multidistrict litigation. He made recent headlines for bringing suit against Merck & Co. over the contraceptive NuvaRing, alleged to have given thousands blood clots; a $100 million settlement was finalized in June.

Such a mobile senior partner comes in handy with a firm that’s grown from a single office with a half-dozen lawyers and 15 employees in 1997 to locations in nine states, 85 lawyers and 250 employees.

But the office and its new location in the Empire State Building aren’t the only things that have changed. The veteran litigator and the up-and-comer who joined forces in 1997 say they’ve begun to resemble each other—the way Clark Kent resembles Superman.

“Experience is catching up with both of us,” Bern says. “I’m getting a little more business-minded. And Paul’s getting a little more willing to take leaps.”

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