Results matching “"David Michaels"”

Preparing to replay a battle royal from the Clinton Administration [Carter at ShopFloor] Earlier here, here, and, on OSHA appointee David Michaels's views, here and here.

The Senate last evening confirmed David Michaels to become Assistant Secretary of Labor for Occupational Safety and Health, that is, OSHA administrator.

His approval came on a voice vote as part of a package of nominees. Thus, this controversial nominee (see Point of Law posts) won confirmation without a public Senate committee hearing or a Senate floor debate to examine his views or record.

The lack of accountability is dismaying.

Senate Committee approves Michaels' nomination to head OSHA - PointOfLaw Forum

David Michaels, President Obama's nominee to be Assistant Secretary of Labor for Occupational Safety and Health, just had his nomination voted out of the Senate HELP Committee. Despite serious concerns about Michaels' views on science, law and business -- see Point of Law posts -- the committee never held a confirmation hearing to question him and today's vote occurred with no discussion.

Sens. Tom Coburn (R-OK) and Richard Burr (R-NC) voted no.

Committee action on OSHA nominee postponed - PointOfLaw Forum

Staff of the Senate Health, Education, Labor and Pensions Committee last night made it known the nomination of David Michaels to head the Occupational Safety and Health Administration will not be included in the committee's markup session this morning. His absence is just a matter of paperwork, or so we're told, and does not necessarily mean that there will be a public hearing on the nomination -- a hearing that many business groups have been calling for.

Just for political/PR reasons, it's hard to see the HELP Committee holding a separate markup on Michaels alone -- too much attention -- so his confirmation may be slowed until another slate of labor-oriented candidates can be put together for committee action.

It appears the committee will act on the controversial nominee to the National Labor Relations Board, labor counsel Craig Becker. More at

OSHA, NLRB nominees -- no hearings, maybe debate - PointOfLaw Forum

The Senate Committee on Health, Education, Labor and Pensions is going straight to an executive session Wednesday to mark-up President Obama's nominees for the National Labor Relations Board, the Legal Services Corporation and, astonishingly, the Assistant Secretary of Labor for Occupational Safety and Health, i.e., the head of OSHA.

That means that none of these nominees will have to submit themselves to the Senate hearing process, i.e., being sworn into to testify before the Senate about their views on their executive branch responsibilities.

This absence of accountability is especially inexplicable in the case of David Michaels, the OSHA nominee. We've written about Michaels' writings and philosophy, which invariably regard business as a bad actor. Too, Michaels is a critic of the Daubert standard, which attempts to limit the introduction of junk science into court proceedings. As The Washington Times wrote in a Sunday editorial, "Occupational hazard":

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.

Yet as it now stands, the HELP Committee will not explore this area with Michaels in a public hearing. After some discussion -- we hope -- there will just be a vote tomorrow and his nomination will go to the floor.

Well, at least we have his responses to Sen. Johnny Isaakson's questions for the record. But it's the nature of candidate responses that they are carefully written in conjunction with the White House to avoid all controversy, and Michaels are no different. Senator Isaakson is interested in combustible dust standards -- understandably so -- and we appreciate his inquiries about OSHA proposing new ergonomics standards.

We'll put the entire question and response about Daubert in the extended entry. That's apparently as close to accountability as the public is going to get.

UPDATE (4:40 p.m.): Matt Madia, regulatory policy analyst at OMBWatch -- an organization that supports an expanded regulatory state -- strenuously disagrees with the criticisms of Michaels' record and writings. Nevertheless, at the group's blog, Madia writes: "While it may be politically expedient, bypassing the hearing is a mistake, in my opinion. OSHA is a major regulatory agency, and the leaders of such agencies should, as a rule of thumb, go before the Senate committee of jurisdiction to explain their views and qualifications."

David Michaels (OSHA) nomination hearing Wednesday - PointOfLaw Forum

Occupational Health & Safety online has details.

Correction/clarification: Not a hearing, but a markup, as Carter explains.

Senate to approve OSHA, NLRB nominees without hearings? - PointOfLaw Forum

The Senate Health, Education, Labor, and Pensions Committee has just released the agenda for its October 21st executive session, i.e., its business meeting, "Executive Session - Any Nominations Cleared for Action." Listed are 11 nominees for the committee to "mark up" -- act on -- including President Obama's three nominees to the National Labor Relations Board and his nominee of David Michaels to be the administrator of the Occupational Safety and Health Administration.

None of these candidates has gone through a public hearing before the committee. Their approval and Senate confirmation now seems set to occur without the scrutiny and accountability that accompany a hearing.

Point of Law has posted previously on Michaels' dislike of the Daubert ruling meant to guard against junk science being introduced into court, his reflexive antagonism toward business, and his alignment with the interests of the litigation industry and "consumer activists." Business groups have cited serious concerns about Michaels' record and philosophy to call for a Senate hearing, a public session during which the nominee could explain his views in more detail. (See here and here.)

President George W. Bush's nominee to head OSHA, Ed Foulke, testified before the HELP Committee on January 31, 2006 -- back when Republicans held a majority. So skipping Michaels is not a matter of protocol or tradition.

We can only conclude that the Republican members of the HELP Committee did not demand a hearing, did not raise a fuss, didn't even bother with a perfunctory Senatorial hold. Perhaps they felt they weren't up to a fight.

As for the NLRB...well, it's another victory for the SEIU's will to power.

Serious objections to OSHA nominee merit a hearing - PointOfLaw Forum

The U.S. Chamber of Commerce sent a letter Friday to the Senate Committee on Health, Education, Labor and Pensions calling for a full Senate confirmation hearing on the nomination of David Michaels to head the Occupational Safety and Health Administration. The gist:

Professor Michaels is a high profile advocate for more regulations, even when the science and data that is available to support such regulations may be inadequate or uncertain. He has also attacked the landmark, unanimous Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals which stands for the proposition that scientific evidence in litigation must meet certain standards to be admitted. He has also been the beneficiary of product liability actions which have been shown to be without merit. Finally, nominees for this position are normally subject to a hearing before they are confirmed and Professor Michaels should be no exception.

The letter raises substantive objections to Michaels' record under the rubric, "Professor Michaels' Views on the Use of Science Do Not Tolerate Debate," noting Michaels' misrepresentation of science on President Clinton's proposed ergonomics rule:

Instead of acknowledging that the scientific and medical record relied upon for this regulation left many questions necessary to issue a regulation unanswered, such as what level of exposures are associated with injuries, or what would be appropriate remedial measures, he described the science as settled and the efforts by business advocates to raise concerns about the science as nothing more than a delaying tactic.

Michaels' attacks against Daubert have been been discussed in previous posts at Point of Law, but this is the first time we've seen the ergonomics issue elevated as a point of discussion on Michaels' nomination.

It's a good, meaty letter representing serious concerns of the business community about the nominee. Michaels' defenders, meanwhile, continue to dismiss criticisms as "growing smear" -- as per Carl Pope of the Sierra Club, whose defense of Michaels is a pure appeal to authority.

A news release from the National Labor Relations Board, "Supreme Court is asked to settle the question of two-member rulings by the NLRB":

Washington, DC -- On behalf of the National Labor Relations Board, the Solicitor General of the United States today asked the Supreme Court to settle the question of whether the Board is authorized to issue decisions while three of its five seats remain vacant.

The request was made in two actions: a petition for certiorari in Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB (see the petition), and a response to a certiorari petition filed by an employer in New Process Steel, LP v. NLRB (see the response).

The Board has operated with only two members since the start of 2008, when the terms for two other members expired. The current chairman, Wilma B. Liebman, and Peter C. Schaumber, a Republican, have continued to issue decisions.

In May, the D.C. Circuit found the NLRB's decision in the Laurel Bay Healthcare dispute to be invalid because two members did not constitute a quorum. (Wall Street Journal story; Blog of the Legal Times coverage.)

No surprise, the issue is deep in partisan politics.

NYT: David Michaels, OSHA, Daubert and activists - PointOfLaw Forum

The New York Times (via Greenwire, or vice versa) today does a pretty fair job of examining the controversy over President Obama's nomination of David Michaels to head the Occupational Safety and Health Administration, albeit with the hook as described in the headline, "Conservatives Raise Questions About OSHA Nominee."

Not to deny that some conservative activists -- former Ohio Treasurer Ken Blackwell, for example -- have gone after Michaels as yet another radical nominee from the Obama Administration. The Van Jones debacle inspired more examination. (Cass Sunstein, repeatedly praised at Point of Law, received the brunt of the attacks.)

Still, the policy objections to Michaels ARE substantative. In the article, CEI's Hans Bader cites Michaels' own book, "Doubt is Their Product":

Bader points to one chapter in which Michaels discusses a 1993 Supreme Court ruling, Daubert v. Merrell Dow Pharmaceuticals Inc., which set the standard for admitting expert testimony in federal courts. Bader said Michaels' views on that case suggest he supports relying on "junk science," which could dramatically alter OSHA's approach to ensuring workplace safety.

In an editorial earlier this month, the Washington Times called Michaels "one the nation's foremost proponents of allowing junk science to be used in jackpot-justice lawsuits."

At Point of Law, we've also written about Michaels' attacks against the plastics additive, BPA, a favorite target of the litigation industry as well -- posts in April 2008 and August 2009 that preceded the Van Jones hullabaloo. Those posts also noted that the project on Scientific Knowledge and Public Policy began with funding strangely allocated from the settlement in the silicone breast implant litigation.

Around the web, September 18 - PointOfLaw Forum

Why Daubert matters in considering the OSHA nominee - PointOfLaw Forum

In a single editorial today, "Occupational hazard," The Washington Times provides the most powerful point-by-point argument we've seen against the confirmation of David Michaels to be assistant secretary of labor for the Occupational Safety and Health Administration, i.e., the OSHA administrator.

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 editorial focuses on Michaels' attack against the 1993 Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals Inc, which now permits trial judges to hold hearings to weigh the merit of expert testimony. As the Times writes, "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."

Michaels devotes a chapter of his anti-business book, "Doubt is Their Product," to attacking Daubert, and has elsewhere published papers on the topic.

The editorial notes the many other reasons to oppose Michaels' nomination, including topics covered earlier at Point of Law ("Certitude is his Product") including the activism of the outfit he heads, the Project on Scientific Knowledge and Public Policy at George Washington University (SKAPP), founded with cash thrown off by the silicone breast implant settlement and still serving the purposes of litigation industry.

The editorial also quotes Walter for his observations at about Michaels' view that guns represent a public health issue. Second Amendment groups have certainly taken notice of Michaels' nomination, and you can expect their allies in the Senate to do so as well.

The OSHA nominee, preemption and the Second Amendment - PointOfLaw Forum

In an post, "David Michaels and Gun Control," Walter highlights the "strong views on firearms issues" from the President's expected nominee to head the Occupational Safety and Health Administration, epidemiologist and left-leaning public health activist, David Michaels. In an entry at the public health blog, The Pump Handle, Michaels had written passionately about guns as a workplace safety issue (and attacking the NRA in the process).

So if a Nashville restaurateur wants to ban guns from his business, it's safe to say Michaels would have his back. But what if the restaurant owner argues the case as a matter of federal preemption? After all, the Obama Administration is busy ridding federal regulations of preemption language.

From The Tennessean newspaper of Nashville, an article, "Nashville restaurateur seeks quick ruling on guns lawsuit":

Nashville restaurant owner plans to ask today for a quick decision in his lawsuit challenging the new state law that allows guns in restaurants and bars.

Randy Rayburn, who owns Sunset Grill, Midtown Cafe and Cabana, and his fellow plaintiffs will file a motion in Davidson County Chancery Court seeking summary judgment in the case, attorney David Randolph Smith said Friday.

Smith said the law, which took effect last month, creates unsafe workplaces, violating federal occupational safety and health laws.

"We're moving for summary judgment on the idea that state law is pre-empted by OSHA," he said.

So preemption serves the public health and safety goals that Michaels embraces, but President Obama, who will nominate him, opposes preemption.

And so does the plaintiffs' bar, which helped fund the creation of the Project on Scientific Knowledge and Public Policy, which Michaels heads. SKAPP's policies closely align with those of the American Association for Justice, which campaigns against preemption as hostile to justice and wealth redistribution through litigation.

The only way to resolve these tensions? Ad hoc arbitrariness! Just what the nation needs in regulatory policy.

OSHA nominee: Certitude is his product - PointOfLaw Forum

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...

More about a Key Source in that WaPo Story on BPA - PointOfLaw Forum

In working up the post below about The Washington Post's story, "Studies on Chemicals in Plastics Questioned," we were struck by that quote from David Michaels:

"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."

That's a vague identifier that raises questions: a federal regulator in the Clinton administration. Wonder where? From his bio:

Nominated by President Clinton and confirmed by the US Senate, Dr. Michaels served as the Department of Energy's Assistant Secretary for Environment, Safety and Health from 1998 through January 2001. In this position, he had primary responsibility for protecting the health and safety of workers, the neighboring communities and the environment surrounding the nation's nuclear weapons facilities.
Oh, a Department of Energy administrator in the nuclear weapons program -- might have warranted a mention, don't you think? And what does Michaels do now? We learn further down in the story that he "runs the Project on Scientific Knowledge and Public Policy at George Washington University and wrote the book 'Doubt is Their Product,' which details how various industries have used science to stave off regulation."

The Project on Scientific Knowledge and Public Policy's homepage is There's a recent paper on the studies of BPA by Sarah Vogel, entitled, "Battles Over Bisphenol A," which makes the basic argument accepted as the thesis in today's Post story.

For decades, industry trade associations and their lawyers staved off the regulation of unsafe products like tobacco, lead and asbestos by arguing that scientific uncertainty precluded government action. [41] Similarly, the plastics and chemical industries seek to deny, delay, and dismiss the low dose research on bisphenol A.

And there's also a study on diacetyl and "popcorn workers lung," another favorite target of the trial bar.

Wonder who's financing the Project on Scientific Knowledge and Public Policy, aka SKAPP? To its credit, the group explains:

Funding: Major support for SKAPP is provided by the Open Society Institute and the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation. The opinions expressed on the DefendingScience website are ours alone. We do not provide our funders advance notice or the opportunity to review or approve the content of this site or any documents produced by the project.
George Soros' Open Society Institute ( and some of the cash thrown off in class-action lawsuits against silicone breast implants -- i.e., the largess of the trial bar.

A major point raised in the Post's story is that the chemical industry finances studies, a notable if not objectionable conflict of interest. And when a left-wing billionaire and trial lawyers finance counterstudies, that doesn't warrant a mention?

The Washington Post gives prominent Page One display Sunday to the ongoing scientic, policy, PR, political and legal disputes over the use of Bisphenol A (BPA) in plastics. It's an archetypical story: Industry under attack for methods, motives -- doesn't care about the public. Congress investigates. From "Studies on Chemical In Plastics Questioned":

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

Congressional Democrats are investigating, and here's the basic line of attack:

"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."

As said, this is a typical story -- although more thorough than many -- with industry as the bad guy, the FDA as the bought-and-paid-for lackeys, and scientists and activists as heroes interested only in the public good.

Missing, though, is an acknowledgement of the trial bar's role in the debate. All signs point to an orchestrated campaign to exaggerate the risks, villify industry, and then...Well..

LOS ANGELES (Reuters) - A California mother sued Nalge Nunc International Corp, claiming the company knew, but downplayed risks, that a toxic substance in its popular Nalgene plastic sports bottles could leach into the bottles' contents and sicken consumers.

The case, filed on Tuesday [April 22], is believed to be the first consumer class action over the use of Bisphenol A, or BPA, in plastic sports bottles since Canada moved to ban baby bottles containing the substance and the U.S. government expressed concern over its safety last week.

In other BPA news, Wal-Mart will stop selling products with the chemical and Nalgene will phase out its use in water bottles.

P.S. The alleged "politicization of science" is a favorite line of attack these days. Over at we took a look at how the Union of Concerned Scientists "entrusted" a Washington Post reporter with a story about Endangered Species Act listings, eventually creating a Washington, D.C., "scandal" that destroyed a public servant's reputation over a policy dispute. The post is "Anatomy of a Beltway Takedown."

David Bernstein will be discussing his latest paper at AEI April 23 at 9:30:

In Daubert v. Merrell Dow Pharmaceuticals (1993), the Supreme Court ruled that expert testimony is only admissible in court if it passes a strict reliability test, and assigned the role of evidentiary �gatekeepers� to federal trial judges. This standard, later codified as Rule 702, has undoubtedly provided significant protection against the worst abuses of junk science since its inception. But has it created a better overall environment for sound scientific evidence? Are courts misusing the rule to bar legitimate scientific evidence? Do judges administer Daubert standards effectively? Are there lingering problems caused by experts being chosen and paid by the parties to the case? What are the future opportunities for reforming the use of scientific expert testimony in adversarial litigation? In his new article �Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution,� George Mason University School of Law professor David E. Bernstein addresses these questions and suggests that increased use of court-appointed experts would represent a significant improvement.

At this AEI event, Professor Bernstein will present his paper, followed by a panel discussion with Edward K. Cheng of Brooklyn Law School; defense attorney Joe G. Hollingsworth of Spriggs & Hollingsworth; Deborah Runkle of the American Association for the Advancement of Science; and epidemiologist David Michaels of George Washington University, who directs the Project on Scientific Knowledge and Public Policy (SKAPP). Ted Frank, director of AEI�s Liability Project, will moderate.