Another Leftist Radical, This Time for OSHA

Although technically not a "czar" under Obama, the appointment of Dr. David Michaels to be the assistant secretary of the Occupational Safety and Health Administration (OSHA) is troubling. If confirmed, he would serve under Labor Secretary Hilda Solis.

He has a history of "regulation through litigation." Michaels was 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 (1).

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" (2) 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 (3). You can find the paper here in PDF.

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." (4)

"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." (5) You can find his original letter here.

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.

"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."

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1. Miller, Joshua Rhett (2009, September 16). "Obama's OSHA Nominee Will Be Bad for Business, Critics Say". Fox News.
Retrieved September 28, 2009, from Fox News

2. THE PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY (SKAPP) (2003, June). "Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of". SKAPP.
Retrieved September 28, 2009, from SKAPP

3. Miller, Joshua Rhett (2009, September 16). "Obama's OSHA Nominee Will Be Bad for Business, Critics Say". Fox News.
Retrieved September 28, 2009, from Fox News

4. Miller, Joshua Rhett (2009, September 16). "Obama's OSHA Nominee Will Be Bad for Business, Critics Say". Fox News.
Retrieved September 28, 2009, from Fox News

5. Michaels, David (2007, April 20). "It Takes a Tragedy". The Pump Handle.
Retrieved September 28, 2009, from The Pump Handle