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
“I would be on the phone, and Paul would
Then fen-phen happened.
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.
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
Then he called Napoli.
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.
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
“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
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
“If you don’t mind,” the defense attorneys said,
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.
“we’d like to invite you back tomorrow to resolve
crazy to object
to this national
“And it made