Dean’s Reversal on Tort Reform

Andrew Sullivan and Overlawyered (a great site) discover another Howard Dean flip-flop, this time on tort reform. In 1988, then-Lt. Governor Dean wrote the following letter to the New York Times:

To the Editor:
Randall Bezanson and Gilbert Cranberg detailed a situation that I hope will get far worse. As a physician, I have been frustrated for years by the reluctance of state legislatures and the United States Congress to deal with liability problems of all kinds.
I have long maintained that until the legal profession and the news media are also afflicted with the increasingly severe consequences of a tort system that benefits few people outside the legal profession, there will be no return to a fair and reasonable system of justice.
The trends toward lawyers suing one another for malpractice and toward outrageous-size punitive damages in libel cases give me hope that the crisis in our tort system may finally come to the attention of those who can make this a public issue and improve the situation for all of us who require liability insurance to do business.
HOWARD DEAN, M.D.
Montpelier, Vt., June 17, 1988

His position now is much more opaque. He rails against the Republican proposal for tort reform, even though it delivers exactly what the doctor prescribed in 1988. Instead, he proposes safety-reporting systems and non-binding mediation, which are all well and good, but does nothing about runaway jury awards and will do little to stem lottery-style class-action lawsuits, such as the Dow Corning lawsuit, that bankrupts companies with bad science and emotional manipulation.
Since the latter is one of the key issues in his 1988 letter, it signals a significant retreat on this position and particularly sets him at odds with the majority of his first profession. Why the switch? Is it because he is afraid of antagonizing the trial-lawyer lobby, a powerful fundraising source for Democrats? It’s entirely possible that he has modified his views over 15 years of public service, but if that’s the explanation, then he needs to say so and tell us what prompted the conversion. Otherwise, it is yet another policy flip-flop that looks suspiciously self-serving and insincere.
Addendum: One other item in Dean’s position paper is inconsistent. In his NY Times letter, Dean says

I have been frustrated for years by the reluctance of state legislatures and the United States Congress [emphasis mine] to deal with liability problems of all kinds.

And yet, Dean’s position paper concludes that he feels tort reform must be left to individual states:

I oppose the Republican medical malpractice bill now before the U.S. Senate. It represents unwarranted and probably unconstitutional federal interference with state tort laws. It is essentially being used for political purposes and it will never be enacted. I favor real solutions at the state level and federal support and guidance for states to implement those solutions.

Congress does not exist to give “support and guidance,” nor is that what Dean’s original statement about dealing with liability reform suggests. His anger in 1988 was directed at a Congress — a Democratic Congress — that refused or was unable to produce meaningful tort reform. Now he claims it’s none of Congress’ business. This is another flip-flop that Governor Dean should be pressed to explain.