Occupational Hazard; OSHA Nominee David Michaels Merits Opposition

Article excerpt


President Obama has made a mantra, even a fetish, of his determination to restore science to its rightful place. It appears that he means junk science rather than the real thing. The president's nominee to head the Occupational Health and Safety Administration (OSHA), a virulently anti-business epidemiologist named David Michaels, is one the nation's foremost proponents of allowing junk science to be used in jackpot-justice lawsuits.

The Senate should reject Mr. Michael's nomination.

The junk-science dispute stems from a crucially important 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals Inc. In Daubert, all nine justices (with two dissenting in small part) agreed that trial judges could hold hearings without juries present to determine if proposed expert testimony is relevant and reliable, based on objective criteria such as the use of scientific method and peer reviews. This way, a trial can be protected from being polluted by hired guns who may look and sound impressive enough to sway a jury that has no particular scientific expertise but who actually are peddling bogus theories or trumped-up evidence.

Mr. Michaels devoted a whole chapter in his tendentious book Doubt Is Their Product to the idea that Daubert created social imbalance away from the interests of plaintiffs and their lawyers. Elsewhere, he co-wrote a paper of the exact same name as the book chapter in which the authors claim Daubert has led to unreasonable legal demands of scientific certainty.

However, contra Mr. Michaels, scientific certainty can be the essential difference between getting a case right or wrong. For example, the Daubert ruling's insistence on sound science directly helped U.S. District Judge Janis Jack of Texas blow the whistle on thousands of false claims for the lung disease silicosis in which radiologists admitted to having diagnosed as many as 800 asbestosis cases in just 72 hours a physical impossibility.

D.C. lawyer Victor Schwartz, author of a widely used law school textbook on tort law and the lead writer of the crucial friend-of-the-court brief in Daubert, told The Washington Times on Wednesday, Daubert has been the greatest protection for both defendants and plaintiffs against losing their cases because of blatantly unscientific evidence. Without it, drugs that help cure diseases could be taken off the marketplace, innovation could be stifled in the United States - and likewise, people who are injured could actually lose cases that have merit.

Yet Mr. Michaels would reject this common-sense requirement in favor of an anything-goes approach through which juries would be required to decide not just the facts, but the validity of complicated scientific claims they have no training to assess. His nomination is another sop to the trial lawyers by Mr. …