Manufacturing Certainty

Steven Wodka is a plaintiffs’ lawyer, based in New Jersey, who has worked closely, for many years, with Dr. David Michaels, as his paid expert witness.  Yes, the David Michaels who is now the head of the Occupational Safety and Health Administration (OSHA).

When Michaels for nominated for his current post, the Democratic majority leaders in the Senate protected him from hearings, which would have revealed Michaels’ deep and disturbing conflicts of interest.  The Democratic Senators succeeded in their efforts, and Michaels was confirmed as undersecretary of the Department of Labor, on a voice vote, without hearings.

Mr. Wodka may have lost his friend, colleague, and expert witness to the OSHA, but at the same time he gained an ally in his litigation efforts on behalf of plaintiffs.  Wodka, who litigates in New Jersey and elsewhere, was troubled by court decisions that OSHA’s Hazard Communication regulations preempted his state-law tort claims. See, e.g., Bass v. Air Products, 2006 WL 1419375 (N.J. App. Div. 2006) (holding that OSHA’s hazard communication standard was a comprehensive regulatory scheme that preempted state tort failure-to-warn claims for warnings that complied with federal regulations).

Wodka may have lost his expert witness (for a while), but he gained an inside track to the Department of Labor.  Disappointed by New Jersey’s appellate court, Wodka sought an advisory opinion from the Department of Labor on the preemptive effect of HazCom.  See David Schwartz, “Solicitor Says Hazard Communication Rule Does Not Preempt Failure-to-Warn Lawsuits,” BNA (October 20, 2011).

The Department of Labor, now under control of his friend and paid expert witness, Dr. Michaels, did not disappoint.  Solicitor of Labor M. Patricia Smith, in a letter dated October 18, 2011, wrote Mr. Wodka that, notwithstanding what the appellate courts may have told him, he was correct after all.  The OSHA’s Hazard Commuication Standard, 29 C.F.R. 1200(a)(2), does not, according to the Department, preempt state tort claims alleging failures to warn.

The solicitor relied upon Section 4(b)(4) of the OSH Act, which states that nothing in the Act is intended to “enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, diseases, or death arising out of, or in the course of, employment.”  The OSH Act, however, in making this disclaimer, was focused on the employer-employee relationship, with its attendant duties, rights, and obligations.  Failure-to-warn claims arise out of laws, whether statutory or common law, designed to protect consumers.  The solicitor’s analysis really misses the key point that a comprehensive scheme, such as the HazCom Act and regulations, applies to strangers to the employer-employee relationship, and constrains the nature and content of warnings communications to the employees of purchasers of chemical products and raw materials.

The solicitor was clear that “a definitive determination of conflict can only be made based on the particulars of each case.”  Smith Letter, at footnote 4.  This slight speedbump did not slow down Mr. Wodka, who was quoted by the BNA as saying that “[t]his letter makes the question clear,” and “I’m already going to move for reconsideration of one of my cases based on this letter.”

It is good to have friends in powerful places.

Of course, there is a good deal of irony involved in this story.  David Michaels has made a career out of scolding industry over conflicts of interest.  Michaels’ book, Doubt is Their Product, gets waved around in courtrooms, when defense expert witnesses testify that the plaintiffs’ evidence fails to show that a product causes harm, or has caused plaintiff’s harm.  Some people may find this scolding a little irritating, especially from someone, like Michaels, who fails to disclose his own significant conflicts of interest, from monies received as a testifying and consulting expert witness, and from running an organization,  The Project on Scientific Knowledge and Public Policy (SKAPP),  bankrolled by the plaintiffs’ counsel in the silicone gel breast implant litigation.

Doubt is not such a bad thing in the face of uncertain and inconclusive evidence.  We could use more doubt, and open-minded thought.  As Bertrand Russell wrote some years ago:

“The biggest cause of trouble in the world today is that the stupid people are so sure about things and the intelligent folks are so full of doubts.”

Print Friendly, PDF & Email

Comments are closed.