OSHA requires strong, credible leadership from someone who will not outrun his scientific headlights, while at the same time enforcing standards that protect workers. President Obama made a serious error in appointing David Michaels, whose scientific and enforcement bona fides are weak.
Michaels has made a career out of targeting industry for perceived ethical lapses, yet he has routinely failed to make adequate disclosures himself, and some of his disclosures are downright deceptive. This hypocrisy might be shrugged off as part of the politicization of occupational and environmental medicine, except that Michaels is now an Undersecretary of Labor. When his agency starts handing out legal opinion letters to his former employers in the United States litigation industry, Michaels’ hypocrisy becomes something of a public nuisance and a scandal. See “Manufacturing Certainty” (Oct. 25, 2011). The Department of Labor’s “Dear Mr. Wodka” letter can now be found online at OSHA’s website.
Well before David Michaels became head of OSHA, his hypocrisy over conflicts of interest was noteworthy. See “Hypocrisy In Conflict Disclosure Rules.” In his book, Doubt is Their Product: How Industry’s War on Science Threatens Your Health (2008), Michaels provides no disclosure of his prior activities and testimonial adventures on behalf of the litigation industry. There is, among his acknowledgments, a tip of the hat to friends and colleagues, such as Steven Wodka. Wodka is a plaintiffs’ lawyer who retained and paid Michaels in various litigations, but you will not learn that from reading Doubt is Their Product. Not surprisingly, this book is waved around by plaintiffs’ counsel in cross-examinations in courtrooms all across the United States.
Michaels does reveal that his organization, The Project on Scientific Knowledge and Public Policy (SKAPP), accepted funding from “the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability Litigation.” This revelation is, however, quite misleading. The “Trust” is a fund for plaintiffs’ counsel in the silicone gel breast implant litigation, which was diverted to help support Michaels, and others who would advocate against evidence-based limitations to expert witness opinions.
Michaels insists that SKAPP accepts only unrestricted funding, but this insistence is also misleading. Plaintiffs’ counsel could feel safe putting “their” money into the coffers of SKAPP, which was openly committed to undermining the implementation of evidence-based standards for causation opinion testimony in federal and state courts. If the manufacturing industry, as opposed to the litigation industry, funded a not-for-profit, headed up by one of its testifying expert witnesses, most folks would call this maneuver “money laundering.” Dirty money is dirty money, regardless whose ox is gored. See also David Michaels & Celeste Monforton, “Scientific Evidence and the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System,” 18 J. Law & Policy 17 (2005) (“Major support for SKAPP is provided by the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability Litigation.”).
Other anemic or absent conflict of interest disclosures abound in Michaels’ publications.
Michaels has been involved in at least four different mass tort litigations, involving alleged injuries from exposures to asbestos, ortho-toluidene, beryllium, and vinyl chloride. He has collaborated with Wodka in three of these litigations, by serving as Wodka’s expert witness. This litigation collaboration should raise serious questions about the “Dear Mr. Wodka letter.”
Asbestos Litigation
Michaels has written several publications about health outcomes in sheet metal workers. The premise of these papers is that the workers were exposed to asbestos, and they might have greater than expected cancer mortality as a result. Most of Michaels’ papers fail to reveal that he consulted and testified for asbestos claimants. See, e.g., David Michaels & Stephen Zoloth, “Asbestos Disease in Sheet Metal Workers: Proportional Mortality Update,” 13 Am. J. Indus. Med. 731-734 (1988).
One of Michaels’ publications on asbestos exposure and health outcomes does contains a disclosure, which even reveals on which side of asbestos litigation he worked:
“This work was supported by the Sheet Metal Occupational Health Institute Trust. Drs. Welch, Michaels, and Dement have worked as consultants for law firms representing individuals with asbestos-related disease. None of the authors have a financial interest in any organization that could profit from the research presented here.”
Laura Welch, Elizabeth Haile, John Dement, and David Michaels, “Change in Prevalence of Asbestos-Related Disease Among Sheet Metal Workers 1986 to 2004,” 131 Chest 863, 863 (2007). Note the advocacy even in the disclosure. Law firms that represent only individuals with asbestos-related disease! Do we infer from this that Michaels did not consult for any law firms that represented individuals who claimed asbestos-related disease, but where the truth in God’s eye would have it that their claims were erroneous? Perhaps the Principle of Charity requires us to infer that Michaels meant to disclose that he consulted for firms that represented persons claiming asbestos-related disease. Having read Michaels’ litigation testimony, however, I think he really meant to say that what appears in the article.
There have been many thousands of asbestos cases, most of which have been settled or dismissed. It is thus difficult to know exactly how many asbestos cases have seen the consulting work of David Michaels. Clearly, however, some of Michaels’ asbestos testimony was given at the request of Steve Wodka, for Wodka’s clients. See David Michaels deposition testimony at p. 41, in Nicastro v. Aceto Corp., New Jersey Superior Court, Law Division for Monmouth County, Docket No. L-3062-08 (Sept. 2, 2009).
Ortho-Toluidine Litigation
According to federal Magistrate Judge H. Kenneth Schroeder, Jr., Steve Wodka represents numerous plaintiffs who claim to have been harmed by exposure to ortho-toluidine. David Michaels is a common fixture in these cases brought by Wodka. See Pardee v. E.I. DuPont Nemours & Co., Case 1:07-cv-00268-WMS-HKS Document 29 (W.D.N.Y. March 31, 2008). Faced with losing his expert witness to OSHA, Wodka noticed a trial deposition de bene esse of David Michaels in several cases.
Michaels was permitted to give his testimony, before moving into his OSHA position, in the following cases:
Pardee v. E.I. DuPont Nemours & Co., W.D.N.Y., Plaintiff, No. 07-CV-0268S(Sr)
Band v. E.I. DuPont Nemours & Co., W.D.N.Y., No. 07-CV-0267S(Sr)
Weist v. E.I. DuPont Nemours & Co., W.D.N.Y., No. 05-CV-0534A(Sr)
Nicastro v. Aceto Corp., New Jersey Superior Court, Law Division for Monmouth County, Docket No. L-3062-08
Polyvinyl Chloride Litigation
David Michaels served as a plaintiffs’ expert witness in at least one PVC case, Lattin v. Borden Chemical Co., New Jersey Superior Court, Law Div. Mercer Cty. Docket No. L-3850-01. Mr. Wodka was the attorney for plaintiff.
Beryllium Litigation
One of David Michaels’ publications criticized the beryllium industry, on grounds that it advanced weak scientific data and arguments against changes in permissible exposure limits. David Michaels & Celeste Monforton, “Beryllium’s Public Relations Problem: Protecting Workers When There Is No Safe Exposure Level,” 123 Public Health Reports 79 (2008). In this article, Michaels acknowledges that he “served as an expert witness in a civil suit involving chronic beryllium disease.” Apparently, Michaels forgot to point out that he was paid for his services, and that the payor was the claimant, whose interests he was advancing in his paper.
Marc Kolanz for one of the companies sued over beryllium health claims noted, in rebuttal, that:
“Dr. Michaels is a paid expert witness in beryllium litigation. Dr. Michaels’ has not published beryllium industrial hygiene or medical research; however, he has provided litigation support serving as a paid expert witness for plaintiffs in beryllium litigation. Consistent with this role, as a hired advocate for plaintiff’s counsel, he has sought to ‘manufacture certainty’ by applying a hindsight approach to criticize the good works of dedicated beryllium researchers.”
Marc Kolanz, “Beryllium History and Public Policy,” 123 Public Health Reports 423, 427 (2008).
Michaels was an expert witness for Philadelphia plaintiffs’ attorney, Ed Reeves, in the Lonnie Pierce case, in Pennsylvania.
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There is nothing ignoble or disreputable in serving as an expert witness. Indeed, real experts may well have an obligation to make their expertise available to the civil and criminal justice system. What is unseemly is the incessant hypocrisy in accusing manufacturing industry of conflicts of interest, while hiding and misrepresenting litigation industry conflicts. David Michaels has been in the forefront of this hypocrisy. The “Dear Mr. Wodka” letter deserves more scrutiny under the principles that Michaels has advocated for manufacturing industry.
