- The Washington Times - Monday, September 7, 2009

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. Obama, on the heels of what Democratic stalwarts Howard Dean and Bob Beckel both have described as a cowardly refusal to ask the lawyers for any contribution to health care reform.

The nominee’s opposition to Daubert is far from the only reason to oppose him. Mr. Michaels heads a group called the Project on Scientific Knowledge and Public Policy (SKAPP), which is extremely friendly to plaintiffs’ lawyers and is funded in large part by George Soros’ Open Society Institute. SKAPP was created by a trust fund created from proceeds of the legal jihad against silicone breast implants that pushed Dow Corning Corp. into bankruptcy. Numerous subsequent studies showed that the diseases supposedly caused by the silicone are “no more common in women with breast implants than in women without implants.”

Specifically pertaining to OSHA, Mr. Michaels testified to Congress in 2007 that the agency, already notoriously heavy-handed, should be even more aggressive in its efforts to issue and enforce additional regulations in the workplace. He even suggested that OSHA use its nearly limitless “general duty clause” to crack down on businesses that somehow fail to anticipate supposed workplace hazards even if they are in compliance with every specific OSHA regulation.

OSHA already has a well-justified reputation for engendering copious horror stories about its regulatory overreach. Our favorite is the time OSHA punished an Idaho plumbing company whose two workers jumped into a collapsed trench to save a trapped third worker. OSHA wasn’t impressed with the workers’ heroism; instead, it was upset that the two rescuers had jumped into the trench without putting on their hard hats.

Mr. Michaels also is an anti-gun zealot who has described “gun violence” as an issue of “public health” that “invariably demands more and stronger regulation, not less.”

As Walter Olson of the Manhattan Institute explained, by way of warning, on Aug. 15: “That’s by no means irrelevant to the agenda of an agency like OSHA, because once you start viewing private gun ownership as a public health menace, it begins to seem logical to use the powers of government to urge or even require employers to forbid workers from possessing guns on company premises, up to and including parking lots, ostensibly for the protection of co-workers. In addition, OSHA has authority to regulate the working conditions of various job categories associated with firearms use (security guards, hunting guides, etc.) and could in that capacity do much to bring grief to Second Amendment values.”

What is needed from OSHA is more reasonableness, not more zealotry. Because David Michaels offers more of the latter than the former, he should not be approved to take OSHA’s helm.

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