Speaking with us this month is Marc Bern, a prolific environmental lawyer who has worked on some of the most significant litigation of the past three decades. In this exclusive interview, he shares the insights he has gained over a storied career of seeking justice for environmentally injured clients.
In your practice and the US more widely, what would are the most common kinds of hazardous environment-related injuries that give rise to lawsuits?
At the top, I would say that there are the toxins that particularly cause various types of cancers, whether it be lung cancer or kidney cancer or numerous others that, depending on the toxin, would be related to those exposures. Additionally, serious pulmonary problems such as asthma and potentially COPD and other serious conditions that can cause lifelong problems.
What are the key pieces of environmental law upon which these suits are based?
This depends on the cause, of which there are so many different types. For instance, you might have air pollution caused by an incinerator that has been burning negligently and releasing toxins into the air that people are breathing. You might have toxins dumped into reservoirs that people are exposed to by drinking the contaminated water. You might also be familiar with a lawsuit that is now pending on behalf of marines and employees at Camp Lejeune in North Carolina, where the government was actually dumping various very serious toxins into the drinking water that people at the marine base were exposed to over many decades.
Years ago, there was a gasoline additive called methyl tertiary butyl ether (MTBE) which was added to the gas by congressional approval, and it turns out that that leached out of the gas and went into the groundwater, which was contaminated in various areas throughout the United States. This led to millions (if not hundreds of millions) of dollars in monitoring costs, building new facilities, operations and maintenance. Fortunately, there were not a lot of personal injuries, but it was damage to the environment and damage to the environment.
In cases such as these which make it to trial, how is liability typically demonstrated?
We have to go about it in a number of ways. Ultimately, the proof is through expert testimony. We have experts in air quality, water quality, the types of releases that cause the various environmental damages, and of course medical personnel who are involved particularly in environmental causes of cancers and pulmonary injuries. All of those types of injuries of that nature.
Taking a wider look at things, what significant developments in environmental law and litigation have you observed during your time in practice?
Well, I have been in practice since 1975, and the area of environmental law – although it has always been out there to a degree in the tort system and in the American jurisprudence – is becoming more and more important every day. Recently, Congress has begun passing laws in respect to what are called 'forever chemicals' (PFAS). So the knowledge of the dangers and the problems caused by environmental exposures is certainly becoming more widely known every day. People understand the dangers caused by toxic releases, by various chemicals that were thought years ago to be either safe or less harmful than we now know that they are.
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With that increased awareness on the rise, do you see similar major developments on the horizon for environmental law and victims' compensation?
Yes, though it all depends. For instance, I was intimately involved in the litigation involving the World Trade Center several years ago as a result of its collapse. Virtually every toxin known to mankind was involved, whether it was in the end or in the ground. As a result of that, we represented over 11,000 individuals who received compensation, and then a law was enacted by Congress – the Zadroga Act – which goes on basically to the end of this century. The law enables people exposed to the toxins to make a claim and be compensated for various cancers and, again, pulmonary injuries.
I believe the same type of thing will happen with this currently ongoing Camp Lejeune litigation. Hundreds of thousands of victims who were exposed to these toxins over many decades will hopefully compensated in a way that will be relatively quick and make sure that people who were exposed over 50 years ago – if they are still alive – will be likewise compensated.
While we are on the topic of environmental law and compensation, is there anything that you would like to add to the discussion?
As I mentioned earlier, there has been a lot of publicity recently with respect to train derailments, and particularly the one in Palestine, Ohio, where a Norfolk Southern train was derailed while carrying many carloads of toxin that may be contaminating the soil, the air and the water. Currently the investigation to determine the extent of the damage is ongoing. It does appear that, since this derailment, there have been a number of additional derailments of trains - and apparently several were carrying various toxins that, again, must be investigated to determine what happened to the soil, the groundwater and the air.
I also mentioned incinerators that have been negligently burning and causing contamination in the air from the various types of substances that incinerators are permitted to burn and get rid of, yet which often burn out of control.
Finally, as a part of the legislation that enacted the law with regard to Camp Lejeune in North Carolina, another aspect of that law had to deal with the burn pits in Afghanistan and Iraq and the types of materials that were burned by the United States Armed Forces in those areas, once again causing serious harm to the environment and the air in particular.
About Marc Bern
Could you tell us a little about your personal journey into law and your career development to date?
I originally completed my degree in 1975. I started practice in the State of Wisconsin and eventually moved to New York in 1981, where I have basically practiced continuously since. Throughout those many years I have worked at various law firms, and in 2015 after the dissolution of my law firm that I had been involved in for over 20 years I started my own firm again. I have a primary office in New York City and large functioning offices in Philadelphia, Los Angeles and Chicago, and I practice throughout the United States.
My practice is primarily involved in environmental litigation and the Federal Employers' Liability Act (FELA), where we represent railroad workers who have contracted cancers as a result of their exposure to volatile compounds and cancer-causing chemicals in their employment on the railroads. I do a lot of toxic exposure and environmental types of cases, and I was also involved in the national opioid litigation. We also do some medical malpractice and general personal injury throughout the country, but we continue to primarily do various types of mass tort litigation.
You have mentioned your work on the chemical fallout of the World Trade Center attacks. Would you say that this is one of your career achievements that you are particularly proud of having accomplished?
Absolutely. Representing the workers at Ground Zero as well as being intimately involved in the passage of the Zadroga Act and my continuing work on behalf of those who have suffered as a result of their exposures from Ground Zero is certainly a highlight of my career.
I have also been in many other cases that have been, personally, very satisfying to me. I was involved in the litigation involving the Costa Concordia, the cruise ship that went down in Italy; I represented many of the individuals in the shooting at the Aurora Theater in Colorado, and as I said I was involved in the opioid litigation – something that is very important to me. I am actually on the board of directors of a drug policy initiative where we are trying to make national policy with respect to various types of drugs, including marijuana, fentanyl and several others.
What is it that motivates you to excel in your work?
I want to help people. I believe that the civil justice system is one of the primary ways where we are able to right wrongs – whether it be by negligence or harm in the environment. As I said regarding the railroad workers that need help, those people that need a voice have always been those I desire to help.
Marc Bern, Founder
One Grand Central Place, 60 East 42nd Street, Suite 950, New York, NY 10165, USA
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Marc Bern is the founding partner of Marc J. Bern & Partners LLP, a law firm headquartered in New York City that handles complex litigation across the United States. Marc’s practice is focused primarily on representing plaintiffs in mass torts, environmental litigation, FELA railroad litigation and personal injury and product liability cases. With more than 35 years’ worth of experience as a litigator and having had a hand in some of the most high-profile cases of his time, Marc has been named one of the Top 100 Trial Lawyers by the National Trial Lawyers and has a record of achieving settlements of over $1 million in hundreds of cases.
