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OSHA nominee: Certitude is his product

President Obama last week announced his intent to nominate David Michaels to become administrator of the Occupational Safety and Health Administration, and today The New York Times hails Michaels' selection in an editorial, "A Champion for Workers' Safety." The Times observes that Michaels' nomination is "apt to provoke opposition from some business interests" and offers advice:

They should hold their fire. His emphasis on cultural change and involvement of workers in improving safety could help ease the polarization between business and labor. And his emphasis on sound science could give everyone greater confidence that OSHA will make the right decisions.

Would it be all right to at least express a little skepticism?

On experience alone, Michaels appears a solid nominee to head OSHA. During the Clinton Administration, he served as the Department of Energy's Assistant Secretary for Environment, Safety and Health, overseeing workplace safety programs for DOE's nuclear weapons facilities. He has earned a Ph.D. in sociomedical sciences and an MPH in epidemiology. (See bio at The George Washington University's Department of Environmental and Occupational Health, where he is a research professor.)

But in his writings, most notably the book, "Doubt is Their Product," Michaels has demonstrated unremitting hostility toward business, and he has run an advocacy group funded by trial lawyers and the left-wing benefactor George Soros. The Times lauds Michaels' "emphasis on sound science," but it sure looks an emphasis on science in the service of a political agenda...politicized science, to use a popular term. What it does not look like is the record of a fair-minded regulator.

Details below...

Since joining the faculty at GWU in 2001, Michaels has been director of The Project on Scientific Knowledge and Public Policy, or SKAPP, with a website named after its stated mission: www.defendingscience.org. SKAPP was an important player in the activist/trial lawyer/media campaign to undermine the legitimacy of Bush Administration regulatory decisions as based on "politicized science" -- an accusation The New York Times' editorial page aggressively promoted.

A good example of this campaign's success and the role of Michaels and SKAPP came in the attacks against bisphenol A, or BPA, a plastics hardener some consumer activists and many trial lawyers claim is unsafe, scientific evidence notwithstanding. In an April 2008 POL post, "More about a Key Source in that WaPo Story on BPA," we note Michaels criticized the chemical industry for defending itself and supporting arms-length studies of BPA. In Michaels' view, big corporations invariably follow the tobacco industry's historical approach toward science and public relations.

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

Michaels' argument -- and the thesis of the Post story by Lyndsey Layton -- recapitulated a paper published by SKAPP, "Battles over Bisphenol A." Since then, the scientific case for BPA's safety has only strengthened, with a California regulatory board finding it safe, and Canada Health determining that children faced no risk from exposure from BPA in food packaging. So, in fact, doubt was warranted.

What really is SKAPP, the group that turns out such provocative works "defending science?" The "About Us" page describes it as a "project of the George Washington University School of Public Health and Heath Services," which "examines the nature of science and how it is used and misused in government decision-making and legal proceedings." Its genesis is revealing.

Funding: Support for SKAPP is provided by the George Washington University School of Public Health and Health Services, the Open Society Institute, and the Rockefeller Family Fund. Past support has been provided by the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation; the Alice Hamilton Fund; and the Bauman Foundation.

Because we know that George Soros' Open Society Institute (www.soros.org) and the class-action lawsuit industry are so dedicated to science. (SKAAP emphasizes its independence and says its financial backers have no influence or pre-approval of its work.)

As for the Common Benefit Trust Fund's generosity, consider it a testament to the success of junk science in litigation. As Walter summarized in a November 2006 post at Overlawyered, "FDA ends ban on silicone breast implants":

Silicone breast implants, available to consumers in most other countries, were driven from the market after a campaign of speculation and misinformation by trial lawyers and allied "consumer" groups, particularly Dr. Sidney Wolfe's Public Citizen Health Research Group. The campaign resulted in billions in legal settlements over nonexistent autoimmune effects from the devices, none of which had to be repaid even after more careful scientific studies dispelled the early alarms.

After debasing science for so long, the silicon breast implant attorneys decided to spend some money to defend it. Sure.

Steven Milloy of JunkScience.com has followed Michaels and SKAPP, and he summarizes its raison d'etre, describing the Common Benefit Trust fund as originally "an expense account" established for compensating plaintiff lawyers for legitimate costs in connection with the multibillion-dollar lawsuits.

Oddly enough, some of that money was diverted to form SKAPP, whose mission was to work to overturn the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals -- the landmark decision that permits judges to set up scientific review panels in federal litigation to keep junk science out of the courtroom.

One Daubert panel played a pivotal role in stopping SBI litigation in federal courts. As a proxy for personal injury lawyers, SKAPP hasn't been able to land a glove on Daubert so far, but a new opportunity may be at hand.

Indeed, a chapter of Michaels' book is entitled, "Daubert -- The Most Influential Supreme Court Ruling You've Never Heard Of." Michaels almost seems to take use of the Daubert process as a personal affront, recounting his testimony as an expert witness in a case and writing, "While Daubert may have chased out some lawsuits based on questionable science, it serves to erect hurdles for scientific testimony and do not reflect the way science works, hurdles that may unduly protect wealthy and powerful defendants."

(A paper with the same title was published by SKAPP and the Boston-based Tellus Institute.)

We bought "Doubt is Their Product" in June 2008 at the Politics and Prose bookstore in northwestern Washington, D.C., when Michaels gave a presentation and signed copies. It was an interesting enough talk, delivered in a good-nature fashion to an audience comprised mostly of friends, colleagues and activists -- or so it seemed to us -- with no one interested in challenging his thesis.

The introduction, page XII, lays out that thesis:

The vilification of any research that might threaten corporate interests as "junk science" and the sanctification of its own bought-and-paid-for research as "sound science" is indeed Orwellian--and nothing less than standard operating procedure today. ...

...At its heart, this book documents the ways in which product defense consultants have shaped and skewed the scientific literature, manufactured and magnified scientific uncertainty, and influenced policy decisions to the advantage of polluters and the manufacturers of dangerous products.

Obviously this is the depiction desired by the plaintiffs' bar: Any industry-influenced science, analysis or arguments is derived from bad faith manipulation made with no regard to individuals.

We have no doubt Michaels arrived at his perspective independently of the trial lawyer largess, but his history and that of SKAPP still closely align with the interests of the litigation industry.

That's troubling enough for a potential OSHA administrator, especially as the agency considers such issues as federal preemption and other aspects of regulation that could encourage the filing of extortionate or extravagant lawsuits.

But what's most disturbing is his unshakable certainty that corporations are always bad actors, malevolent agents motivated by greed. In his book, his writings and his presentations, Michaels never seems to acknowledge that doubt can be legitimate. He consistently rejects the possibility that industry scientists might actually believe in their work, that corporations might have a case, or that he might be wrong himself.

During the Bush Administration, "consumer activists" always protested when someone with business experience was considered for a regulatory post, claiming he was "in bed with industry" or a "fox in the henhouse." Now we are faced with the appointment of a top agency official charged with overseeing people and economic activities he has made a career of condemning. It's a career history that suggests a Michaels-run OSHA will be more interested in punishment and litigation than fair-minded regulation.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.