The recent tragic explosion at the Upper Big Branch Mine in West Virginia, with the death of 29 miners, is a reminder that the safety and health of American workers is often in the hands of their employers, who control, supervise, and maintain the conditions of their place of employment.  This reminder reveals the fetish that tort law places on failure to warn of remote suppliers of materials and products, when those suppliers cannot control, supervise, or maintain the conditions of employment that create real hazards to workers.  The immunity of employers under worker compensation law neuters tort law’s ability to place responsibility on the party that can really make a difference.

The tragedy also illustrates the need for vigorous governmental policing of the workplace.  Given the realignment of state and federal power in this area, from 1960s and 1970s, it is clear that the federal government has now occupied this field, and must deliver this important police power to miners through the Mine Health & Safety Administration (MSHA) and to other workers through OSHA.

Because of the importance of OSHA, it is disappointing that President Obama appointed an anti-industry ideologue, David Michaels, to head up the agency.   See Confirmed by the Senate without any discussion or debate, Michaels escaped any meaningful scrutiny before taking the position of Assistant Secretary of Labor for Occupational Safety and Health.  What the American public would have learned if the Senate had taken the time to permit debate and discussion is that Michaels is widely known for his book, Doubt is Their Product: How Industry’s War on Science Threatens Your Health (Oxford University Press, 2008).   The book is a critique of “industry” for alleged manipulations of science and for its insistence that some measure of reliability be required as a threshold in civil litigation and in regulatory proceedings.  Michaels lambasts industry for “lack of transparency,” but opaquely hides his own role as a testifying expert witness for plaintiffs’ counsel in product liability litigation. 

Michaels also misrepresents the funding source of his anti-Daubert advocacy organization, The Project on Scientific Knowledge and Public Policy (SKAPP). (  This advocacy group, which is run out of the Department of Environmental & Occupational Health at the George Washington University School of Public Health & Health Services, where Michaels taught before his appointment as an Assistant Secretary.   A typical statement occurs in Doubt is Their Product:  “I am also grateful for the support SKAPP has received from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Liability litigation.” (p, 267)  What Michaels hides with his one-way mirror held up to industry is that this “fund” is nothing more than plaintiffs’ counsel’s walking around money from a Multi-District Litigation that had little or no rationale to exist after 1999 or 2000, when court-appointed experts and the Institute of Medicine declared that the scientific evidence did not support plaintiffs’ claims that silicone caused autoimmune disease. 

The “common benefit” fund has become a commonplace of mass tort litigation.  In the context of Multi-District Litigation pre-trial consolidations, federal courts have approved a requirement that the defendant “hold back” a certain percentage of settlement proceeds.  The defendant pays this amount into a fund, which is available to those plaintiffs’ counsel who did “common benefit work”  — work for the benefit of all claimants.  Plaintiffs’ counsel who worked for the common benefit of all claimants may petition the MDL court for compensation or reimbursement for their work or expenses.  See, e.g., William Rubenstein, “On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be,” Class Action Attorney Fee Digest 87, 89 (March 2009).  In the silicone gel breast implant litigation (MDL 926), plaintiffs’ counsel on the MDL Steering Committee undertook common benefit work in the form of developing expert witnesses for trial, and funding scientific studies.  By MDL Orders 13, and 13A, the Court set hold-back amounts of 5 or 6%, and later reduced the amount to 4%.  Id. at 94.

Michaels earnestly declares that “SKAPP accepts only unrestricted funding; we do not provide our funders the opportunity to review or approve any of our work products.”  (p. 267)  The reader can imagine the outrage and vitriol if a study, funded secretly by industry, claimed funding from a court-ordered trust fund!  Readers should be asking:  when did the federal courts become involved in funding scientists to write books and articles that criticized how courts treated scientific evidence.  Those lawyers who were involved in the silicone MDL realize that what Michaels is referring to is nothing other than a plaintiffs’ counsel’s slush fund, and that plaintiffs’ counsel would know very well that Michaels and his colleagues would be aligned with their economic and ideological positions.  The breast implant plaintiffs’ lawyers really did not need to an “opportunity to review or approve any of [SKAPP’s] work products.”

Transparency is a two-way optical process.  In appointing Michaels, President Obama missed an important opportunity to have an OSHA leader who was tough on workplace safety, fair in his treatment of all parties involved, and credible in his judgments.

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