Published September 16, 2009
President Obama's pick to serve as the assistant secretary of the Occupational Safety and Health Administration is an "aggressively anti-business" proponent of junk science who should not be confirmed by the Senate, his critics say.
Dr. David Michaels, a research professor and interim chairman in the Department of Environmental and Occupational Health at George Washington University's School of Public Health and Health Services, was nominated on July 28 to become OSHA's next assistant secretary. If confirmed, he would serve under Labor Secretary Hilda Solis.
Obama cited Michaels' "tremendous dedication" and expertise while making the announcement. According to his biography from George Washington University, Michaels received the American Association for the Advancement of Science's Scientific Freedom and Responsibility Award for his work on behalf of nuclear weapons workers and calls for scientific integrity.
Michaels was also the chief architect of an initiative to compensate Department of Energy nuclear weapons workers who developed cancer or lung disease as a result of their exposure to radiation, beryllium and other life-threatening hazards. Since 2000, the Energy Employees Occupational Illness Compensation Program has doled out more than $4.5 billion in benefits to those workers and their relatives.
But Michaels' critics say the epidemiologist, who has conducted numerous studies on the health effects of occupational exposure to toxic chemicals, will bring a junk science-based, anti-business agenda to the post. Second Amendment advocates are also up in arms, saying they expect Michaels to seek stricter gun control in the workplace as an issue of public health.
"It's one of the scariest appointments the new administration has made," said James Copland, director of the Manhattan Institute's Center for Legal Policy, which argues that the country's litigation system adversely affects innovation and safety.
"One would expect this administration would pick some folks relatively left of center, relatively pro-labor, that's to be understood," Copland said. "But Michaels has associated himself throughout his career with junk science claims that are pushed by the plaintiff's bar."
Michaels' detractors point to a 1993 Supreme Court case, Daubert v. Merell Dow Pharmaceuticals Inc., in which the court ruled that trial judges could hold hearings without juries in an effort to determine whether expert testimony is relevant. The intended goal of the ruling was to protect a trial from being corrupted by hired experts who could sway a jury without proven scientific evidence, with the trial judge acting as a gatekeeper of sorts.
In a June 2003 paper published by the Project on Scientific Knowledge and Public Policy (SKAPP), which Michaels now directs, the Daubert ruling was characterized as a "well-intentioned attempt to ensure reliable and relevant evidentiary science." But it went on to describe the consequences of the ruling as "troubling."
The paper said that over 10 years, "some judges, in our opinion, have routinely misinterpreted and broadened the reach of Daubert" and concluded that "polluters and manufacturers of dangerous products are successfully using Daubert to keep juries from hearing scientific evidence or any other evidence against them."
The result, according to the SKAPP paper, has been a significant rise in the percentage of expert testimony excluded from the courtroom, an increase in successful motions for summary judgments, 90 percent of which "came down" against plaintiffs, and a chilling effect upon plaintiffs since they often don't have the same resources as large corporations and cannot afford to "defend against aggressive attacks" on their experts.
Michaels' critics say they fear he will use his new position at OSHA to seek to overturn Daubert.
"Michaels is closely associated with trial lawyers, so they're going to try to overturn this," said Steven Milloy, founder of junkscience.com. "That's his mission. Our concern is that he's going to take this mission and somehow implement it at OSHA."
"Trial lawyers would love him," Milloy said. "He has a junk science agenda. The standards of science [at OSHA] under Michaels will be extremely low. If nothing else, he will promulgate junk science-based workplace regulation."
Michaels' critics say any push to reverse Daubert could keep safe products off the market, much like silicone breast implants that sank Dow Corning Corp. into bankruptcy after it agreed in 1998 to pay women $3.2 billion to settle their claims. A year later, however, an independent panel of 13 scientists convened by the Institute of Medicine concluded that silicone breast implants do not cause any major diseases.
Copland said Michaels was tapped to head OSHA because of his support of "activist regulation through litigation" that often proves beneficial to plaintiff attorneys who frequently have Democratic ties.
"I don't think there's an apolitical rationale for this individual being chosen for this position," Copland said. "Business will fight this nomination -- it's a major threat to business."
White House spokesman Tommy Vietor scoffed at the criticism and praised Michaels, calling him a "respected scientist."
"Dr. David Michaels is a well-respected epidemiologist with a commitment to using the best available science to protect workers and the environment," Vietor said in a statement to FOXNews.com. "He is a nationally recognized leader in efforts to ensure the integrity of the science underpinning public health and environmental regulation. These accusations are simply ridiculous and false."
Vietor also dismissed claims that Michaels is an "anti-gun zealot," as he was described in a Sept. 7 Washington Times editorial that urged the Senate to deny his confirmation.
In 2007, while writing on a failed bill that would have allowed workers to bring guns into company parking lots, Michaels predicted that the National Rifle Association "will no doubt be back, pushing legislation that stands in the way of preventing gun violence."
"Thankfully, the NRA's legislation failed," Michaels wrote. "When the toll of preventable and pointless deaths or injuries from any single event or related events becomes so great, or particular aspects of the story bring it to the public's attention, our nation invariably demands more and stronger regulation, not less."
Hans Bader, a senior attorney and counsel for special projects at the Competitive Enterprise Institute, a conservative Washington-based think tank, said he expects "a lot more restrictions" on real or perceived workplace hazards if Michaels is confirmed.
"If you view guns as a public health hazard, that may have implications for people's ability to possess firearms at the workplace," Bader told FOXNews.com. "It raises the possibility that by overzealous regulations he'll be undermining rather than advancing workplace safety."