Results matching “daubert michaels”

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."

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.

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.

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 Overlawyered.com 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.

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...

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.

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