Publication Date: Wednesday, January 29, 2003

Not just tilting at windmills

Local lawyer leads national group working to protect consumers' courtroom access, rights to jury-determined awards

By Renee Batti
Almanac News Editor

Mary Alexander unexpectedly began her new year scrambling to catch a flight out of SFO to the East Coast -- responding to a blaring call to battle. Her profession was, once again, under attack, and the self-proclaimed warrior would not let the onslaught go unchallenged.

So while many of us were dealing with the effects of sleep deprivation and party fatigue those first few days of 2003, the indefatigable consumer advocacy attorney and Atherton resident was appearing on CNN, on NBC with Tom Brokaw, and on other television and radio programs aired nationwide, defending the work -- and motivation -- of trial lawyers.

What prompted Ms. Alexander's appearances before national television cameras were charges by West Virginia physicians who walked off their jobs on New Year's Day that large lawsuit settlements are causing their malpractice insurance premiums to skyrocket. The walk-out dovetails cleanly -- some say intentionally -- with Congress' renewed effort to place caps on medical malpractice court settlements.

As president of the most powerful attorneys' group in the country, Ms. Alexander, whose practice is in San Francisco, came before the national media prepared for battle with facts, figures, and the story of her own home state: California placed caps on medical malpractice settlements 27 years ago, and "they have not worked," she declared.

"Doctors were arguing that their premiums continued to rise because of lawsuits. We argue that is nonsense," she said in a recent interview with the Almanac.

On the defense

Trial lawyers are undeniably on the defense these days, criticized, sometimes vilified, by forces ranging from insurance and physician groups to the White House.

Last July in Atlanta, when she took over as president of the 60,000-member Association of Trial Lawyers of America (ATLA), Ms. Alexander, 55, emphasized the role of her profession in standing up for ordinary people wronged by powerful corporations. Metaphors of the battlefield were plentiful in her presidential acceptance speech: "We are David fighting Goliath." And, "We will never stop fighting for average Americans. ...We are the army of justice."

But in keeping with her reputation as a brilliant thinker and strategist, she also said: "We fight for the underdog. We go to battle. Not like some deluded Don Quixote, but like the thinking warrior who trains harder and is more dedicated than his adversary."

As she embarked on her year as ATLA's president, Ms. Alexander outlined a "five-point vision and call to action" that includes educating the public about "what the justice system means to democracy and to protecting people," she told the Almanac.

Trial lawyers, she said in her acceptance speech last July, "are often attacked as a group for victories won against some of the most brutally corrupt special interests in our society. Those special interests often use every engine of perception to paint us as evil."

In ATLA's attempt to educate the public, she said later, the organization will remind people that "cars are safer, schools are asbestos-free," and "exploding tires" and many dangerous pharmaceuticals have been removed from the marketplace, thanks to successful litigation in the civil justice system.

Making her mark

Ms. Alexander's early training was in science. She earned a master of public health degree in environmental health from the University of California, Berkley, then worked at SRI in Menlo Park as director of the occupational and environmental health department.

"I was very interested in the health of American workers and the environment," she says. But after a time, "I realized that a good way to effect change is through litigation," so she enrolled in law school at the University of Santa Clara, where she obtained her law degree.

In her 20 years of law practice, she has made her mark statewide and nationally. Last year, she was chosen by her peers as one of the top 100 most influential attorneys in the state in a survey by the Daily Journal, which publishes news of the legal profession in California.

She was president of the Consumer Attorneys of California (CAOC) in 1996 -- one of the most challenging years ever for the state's trial lawyers. It was that year that California voters were asked to approve three state propositions -- 200, 201 and 202 -- that were largely seen as unfriendly to consumers. They would have limited shareholder lawsuits, created a no-fault auto insurance system, and limited attorneys' contingency fees.

San Diego attorney Dave Casey said he worked closely with Ms. Alexander that year during the battle against the propositions, and also against 65 bills passed by the state Assembly that "curtailed consumer rights."

He was president-elect of CAOC at that time, and now follows her as president-elect of the Association of Trial Lawyers of America. "We're a proven team," he says.

Mr. Casey recalls that Ms. Alexander "led the charge" in defeating the propositions -- "She displayed incredible vision and leadership" during the successful fight. Then, he adds, she showed the same determination in fighting the 65 bills that had cleared the Assembly, and each of them went down to defeat in the Senate.

"Mary and I are back in stormy waters again," Mr. Casey says, noting that the political scene in Washington largely echoes California in 1996, when there was a Republican governor and Assembly. But, he declares, Ms. Alexander is up to the challenge. To meet her off the turf of law and consumer advocacy, she comes across as reserved and non-threatening, he notes. "But she has enormous strength, and she's a tough advocate."

Calling Ms. Alexander "extremely bright" and one of the best trial lawyers in the state, Mr. Casey says she is also politically sophisticated -- an important quality for the national leadership role she has taken on.

Responding to 9-11

Ms. Alexander was president-elect of the national association of trial lawyers, ATLA, when terrorists attacked the country September 11, 2001. She and the other leaders of the association bolted into action. By September 12, ATLA leadership was at work urging members to declare a moratorium on lawsuits stemming from the attack -- a moratorium that was largely successful, Ms. Alexander says.

"It was important for the nation to heal" and to find alternate solutions to deal with the unprecedented occurrence, she says.

But the plea for a moratorium was not a "call to inaction." ATLA rapidly established a new law firm, called Trial Lawyers Care -- or TLC. Some 2,000 ATLA members mobilized to provide free legal help to victims' families, helping them wade through the paperwork and legal processes during a time of extreme distress. TLC has helped more than 1,400 families; one attorney left his practice for four months to volunteer with TLC, Ms. Alexander says.

"It was the largest pro bono effort in history," she says solemnly, but with obvious pride. "I think it was our finest hour."

At the same time, she and other ATLA officers led the successful effort to get Congress to pass a victims' compensation bill, working with the Justice Department and helping to draft the bill that set up the Victim Compensation Fund.

In a guest column printed September 27, 2002, in the New York Daily News, Ms. Alexander urged families of victims that had not already sought compensation through the fund to do so before the option expires September 2003. To do so, she wrote, would ensure families "some justice and economic compensation ..., help them achieve some sense of closure and allow the healing to begin."

Other efforts

Under Ms. Alexander's leadership, ATLA is also working to defeat efforts to change the nation's tort laws, such as the effort launched in Congress earlier this month, bolstered by the White House, to place caps on malpractice lawsuit awards.

At the same time, the association is fighting "the erosion of the right to trial by jury in the courts." That includes the growing trend nationwide to require mandatory arbitration of disputes, eliminating a person's right to go to court.

Both matters, Ms. Alexander says, pertain to the degree to which ordinary Americans can seek justice and fair compensation when they are damaged by faulty products, corporate malfeasance or medical malpractice.

Regarding caps on malpractice damages, Ms. Alexander insists that lawsuits are not the culprit in the leap in malpractice insurance premiums physicians are faced with today. "There is a crisis, but not because of lawsuits," she says. Instead, the problem lies with bad investments made by insurance companies years ago that have left the companies with shortfalls.

She points to the records of California and other states that have enacted caps. The premiums California physicians must pay for malpractice insurance "are the same as the rest of the country," she says, adding that the same can be said for other states with caps.

"We need to fix the problem," Ms. Alexander acknowledges, "but caps can't do it. ... Insurance reform is what we need."

But physician and insurance groups dispute the claim that California's premiums are in keeping with the national average. They say that after caps were imposed in 1975 and were in place long enough to stabilize costs -- and the legal challenges to them were defeated -- premium costs fell below the average.

Ms. Alexander dismisses that claim, pointing to figures cited in the Medical Liability Monitor, which tracks the malpractice insurance industry. According to the Monitor, California's average malpractice premium in 2000-01 for general surgeons, and OB/GYN and internal medicine practitioners, is $27,570. In the 26 states without caps on non-economic damages, the average for the same categories of physicians is $25,451.

Proponents of medical malpractice judgment caps also argue that the proposed $250,000 limit on settlements applies only to "pain and suffering" awards, not awards that cover medical costs and lost wages for plaintiffs who have been injured.

But capping "pain and suffering" damages is "an arbitrary, one-size-fits-all" imposition, Ms. Alexander says, and takes away from juries the ability "to decide what is fair and just," putting the decision into the hands of politicians.

She cites examples of a woman who had a double mastectomy as a result of a misdiagnosis of breast cancer, who now "has to live with scarring and mutilation," or a baby born brain-damaged because of malpractice, who will never learn beyond the first-grade level. These people, she says, are unfairly punished by arbitrary caps on pain and suffering.

Insurance industry groups also dispute the notion that bad investments and business practices are a main cause of the financial crisis behind the rise of premiums. In a statement to a congressional subcommittee issued last year, the Physician Insurers Association of America (PIAA) acknowledged poor management on the part of "a few carriers (that) tried to compete on price and were unable to handle the inordinate increases" in the average cost of claims.

However, the statement continued, these carriers represent a minority of the industry and are "not representative of most medical liability insurers."

In the same statement, the PIAA defended the industry's investment practices as well. Liability insurers, it stated, generally "maintain very conservative investment portfolios," made up primarily of "high-grade bonds." From 1995 to 2001, it said, medical malpractice insurers "invested approximately 80 percent of their assets in bonds, with the remainder divided among stocks, mortgages, real estate and working cash."

Ms. Alexander says that ATLA is recommending "insurance reform" measures that would include limiting how insurance companies can invest in the stock market; requiring the industry to get permission to increase malpractice insurance premiums; and making the industry subject to anti-trust law, which currently does not apply to insurance firms.

Efforts to place caps on lawsuit awards and to require arbitration "all boil down to taking decisions out of the hands of a jury," Ms. Alexander says. The jury, she adds, is "where the community says what we expect from our corporate community." Caps and mandatory arbitration "takes ordinary people out of the process.

What Congress and other lawmakers are saying when they try to put caps on awards and require mandatory arbitration, Ms. Alexander maintains, is that they "don't trust juries."

Ms. Alexander identifies a case she won in behalf of a bicyclist injured in Yosemite as a landmark case that was "a turning point in my career." It also is an example of how jury decisions regarding monetary awards can make an enormous difference in the lives of the injured.

The case involved a 41-year-old woman who rented a bicycle with faulty brakes from the company running the concession in the national park. When the brakes failed on a steep hill with a sharp turn, the woman lost control, plunged into a tree, broke her neck, and will be paralyzed below the neck and in need of a breathing machine for the rest of her life, Ms. Alexander says.

The jury awarded the victim $13.4 million, finding the concessionaire guilty of poor maintenance of its bicycles and of not warning riders of the perilous terrain.

The money "meant she wouldn't be institutionalized for her whole life," and instead could be in her own home, able to pay for home care, Ms. Alexander says. The victory is "an example of being able to make a difference" in someone's life, she adds.

Family matters

Ms. Alexander and her family have lived in Atherton since 1989. She is married to Skip Faulkner, and her daughter, Michelle Loftis, is a graduate of Menlo School.

Ms. Loftis is now a pediatrician living in New Orleans with her 4-year-old son and 4-month-old daughter.

Ms. Alexander's parents, Dr. Theron and Marie Alexander, lived in Menlo Park for many years, and now live in Atherton with their daughter and son-in-law.