Over a decade ago, I wrote a post about the American Public Health Association (APHA) and its position papers opposing the Daubert regime of gatekeeping the validity of expert witness opinion testimony. I am updating the post, with some modifications, because the links to the APHA documents are broken. It appears that the APHA now keeps its meeting minutes and policy position statements as secrets for the cognoscenti, and so I have uploaded documents that once were publicly available to document the APHA’s tepid relationship with science.
The APHA was once a significant organization committed to the improvement of public health. The Association has many thousands of members, and it engages in the pretense that it represents the entire public health community. Among its many activities, the APHA publishes a journal, the American Journal of Public Health.
Here is how the APHA described itself and its activities, in 2014, to advance public health:
“The American Public Health Association champions the health of all people and all communities. We strengthen the profession of public health, share the latest research and information, promote best practices and advocate for public health issues and policies grounded in research. We are the only organization that combines a 140-plus year perspective, a broad-based member community and the ability to influence federal policy to improve the public’s health.”
How could anyone be against the APHA? Let’s see.
The mission statement currently on the APHA’s website has added the ultimate social justice adjective, “equitable,” and emphasized the association’s advocacy roles:
“We champion optimal, equitable health and well-being for all. We speak out for public health issues and policies backed by science. We are the only organization that combines a 150-year perspective, a broad-based member community and the ability to influence federal policy to improve the public’s health.”
Somewhere along the way, the association was commandeered by revolutionaries who remade it in the “Spirit of 1848.[1]” The APHA evolved into a tool of the lawsuit industry and its putative scientist allies. In 2004, after several years of lobbying, agents of the lawsuit industry managed to push a policy statement past the Association’s leadership, to condemn the requirement of evidence-based reasoning in federal courts in the United States. The APHA has since proven itself an enemy of good science on many fronts.
The success of the lawsuit industry’s influence was dutifully memorialized in the “Final Minutes of Meetings of the APHA Governing Council,” held in November 2004. The lawsuit industry’s attack on evidence-based science and data transparency, known as “Policy Number: 2004-11 Threats to Public Health Science,” was adopted as an official APHA policy statement.
“APHA 2004-11” was published in an American Journal of Public Health newsletter, but is now available only to members on the APHA website, as Policy Number: 2004-11: Threats to Public Health Science. I have excerpted contentions and recommendations from the APHA policy, in the left column of the chart, below. The policy statement is typical of what comes out of precautionary principle NGOs and groups such as the Collegium Ramazzini, and passed off for scientific commentary. The APHA policy is parsed in the left-hand column; my comments to quoted language are in the right-hand column.
| APHA Policy | Comment |
| “Acknowledging that within science, absolute proof and perfect information are rare;” | Note the false dichotomy between absolute proof and perfect information and the entire remaining spectrum of scientific information. This dichotomization has been part of the litigation strategy of passing off hypotheses, preliminary conclusions, unreplicated findings, etc., as though they were acceptable bases for causal conclusions. |
| “Recognizing that special interests have exploited the nature of science, specifically scientific uncertainty, to delay protective legal and/or regulatory action;” |
Note the asymmetry of the accusations; the APHA apparently has no concern for the “special interests” that exploit science by passing off hypotheses as conclusions, and seeking to accelerate protective legal and regulatory action by manufacturing faux scientific consensuses and conclusions. |
| “Acknowledging that some public health decisions must be made in the absence of perfect scientific information;” |
“Le mieux est l’ennemi du bien.” But isn’t the good also the enemy of the shabby, dodgy, and fraudulent? Note again the false dichotomy between “perfect” information and everything else, as though our failing to achieve the perfect opens the door to the worst. True, of course, that sometimes action is needed on incomplete records, but such action is rarely needed for compensation claims. |
| “Recognizing that special interests, under the guise of a call for “sound science” have sponsored and promoted changes in public policy that have weakened and continue to threaten public health protections;” |
If the call for sound science cannot be sustained, then this rhetorical gambit will blow back hard on those “special interests.” Why are these putative scientists, at APHA, so afraid of sound science? |
| “Recognizing that special interests have challenged highly regarded public health research and researchers, and inappropriately characterized established scientific methods as ‘junk science’;” |
Mon Dieu! Highly regarded by whom? How cheeky of those special interests. See the discussion of Dr. Barry S. Levy, below. Of course, special interests from the folks at Green Peace, and EWG, etc., are welcome. The claim that the challenges are inappropriate is a mere conclusion without evidence. |
| “Recognizing that the Daubert decision has propagated misinterpretations and misapplications of scientific principles relied upon throughout the public health sciences, such as insisting that any epidemiologic study that is relied on to support causation demonstrate a twofold increase in risk as well as a reliance on significance testing to determine which scientific findings are to be allowed as evidence;” |
This contention seriously misrepresents the basic nature of evidence law. Studies, whether they have statistically significant results, or not, are rarely admissible in evidence. What is admissible, or not, are the opinions of duly qualified expert witnesses, who explain and show the epistemic warrant for their opinions. With respect to general causation opinions, expert witnesses will often have to show, among other things, that they have relied upon studies that have ruled out chance, bias, and confounding to arrive at a causal conclusions. Significance testing can be abused, in both directions, but the APHA ignores the need for having some quantitative assessment of random variability and error. As for relative risks greater than two, the APHA is correct that general causation may often be found with small relative risks, but the attribution of causation in an individual claimant often can be made only on probabilistic inferences that will require relative risks greater than two, or even larger. |
| “Recognizing that special interests are engaged in a campaign to extend Daubert’s reach to those states that have not embraced prescriptive definitions of scientific reliability.” |
The APHA makes common cause with the rent-seeking and special pleading of “special interests” that would abolish all limits on the admissibility of expert witness opinions, and all normative assessments of scientific research. This position ignores the prescriptive aspect of methodology, and the nature of epistemic warrant in a methodology. |
What follows from these contentions?
“Therefore, APHA:”
| “Opposes legislation or administrative policies that attempt to define the characteristics of valid public health science, or dictate prescriptive scientific methodologies; and” |
Admittedly, defining good science is very difficult, but the law often works like science as defining health as the absence of disease. There are obviously some well-known pathologies of scientific method, and it hardly seems extravagant to urge courts to avoid flaws, fallacies, and fraud. |
| “Supports the efforts of other scientific organizations to promote the government’s ability to utilize the best available science to protect the public’s health; and” |
Of course, sometimes the “best” available science is rather shabby. The science will only protect public health if it is valid and supports valid causal inferences. |
| “Urges friend of the court briefs that address the problem inherent in the adoption of Daubert and Daubert-like court rulings, the application of Daubert in regulatory proceedings, and when judges misinterpret scientific evidence in their implementation of the Daubert ruling.” |
There are no instances of the APHA’s deploring jury verdicts that offend scientific sensibilities; and so the APHA’s urging here is one-sided and partisan. The fact, however, that judges’ misinterpretations of scientific evidence can be criticized publicly is one of the key differences that separates judicial gatekeeping from the black box of jury determinations. |
In 2005, the APHA published, in its journal, APJH, a special supplement, “Scientific Evidence and Public Policy,” with
“academic analysis of the conflicts arising in the use of science in regulatory, civil and criminal proceedings. This special issue examines how recent developments in the legal and regulatory arenas have emboldened corporations involved in civil litigation and regulatory proceedings to accuse adversaries of practicing ‘junk science’.”
Apparently, the APHA was not, and is not, concerned with the emboldening the lawsuit industry and its efforts to subvert the truth-finding function of civil litigation.
David Michaels served as the guest editor for the APJH special supplement. Michaels repeated many of the contentions of the 2004 Policy Statement, above, and in an introductory essay,[2] he added some new dubious assertions:
- Judges are no better than juries in assessing scientific evidence.
- Scientists evaluate all the evidence by applying a “weight-of-the-evidence” approach.
- Uncertainty in science is normal and does not mean the underlying science flawed.
These are all serious half truths. Many judges are quite astute when evaluating scientific evidence, but even the lowest aptitude judges must give articulated reasons for their decisions, which opens up a public process of comment, correction, and criticism. Juries vote in secret, without having to explain or justify their verdicts. Judges can review the actual studies relied upon; juries never read the entire studies that are cited by expert witnesses. The collective judgment of juries can, on occasion, be more insightful than that of a single judge. Juries can also be more emotive and less analytical than judges, and they can be seduced by the hyperbolic rhetoric, and evidence-free claims. It seems obvious what aspects of the jury system are being endorsed by the APHA.
Scientists, metaphorically speaking, weigh evidence, as do non-scientists, but this opaque metaphor hardly explicates the process of how scientists arrive at conclusions about causal relationships. And uncertainty is a condition of many scientific fields, but the error lies in trying to pass off tentative, uncertain, preliminary observations and findings as knowledge.
Michaels sees the development of judicial gatekeeping as favoring “the powerful,” and hurting “the weak and vulnerable.”[3] Michaels showed no compunction with having his editorial recommendations favoring the lawsuit industry and undermining the truth. Michaels was the head of the Occupational Health & Safety Administration, where he squandered his tenure with a shambolic rulemaking on silica, which did little actually to protect workers.
As for self-righteousness, Michaels’ special issue of the American Journal of Public Health was itself funded by corrupt interests. Michaels and the APHA described the funding for the special AJPH supplement:
“Support for the supplement was provided through unrestricted funding to the Project on Scientific Knowledge and Public Policy (SKAPP) from the Common Benefit Litigation Trust, a fund established by court order in the Silicone Gel Breast Implant Products Liability Litigation. SKAPP is an initiative of scholars that examines the application of scientific evidence in the legal and regulatory arenas. SKAPP is based at the George Washington University School of Public Health and Health Services; more information is available at www.DefendingScience.org.”[4]
This pseudo-disclosure provides a window of discovery into the fraudulent aspect of the entire APHA enterprise. The Common Benefit Trust was a fund that was held back from settlement monies paid by defendants in the silicone gel breast implant litigation. The Trust was nothing more than the Plaintiffs’ Steering Committee’s war chest, and “walking-around-money,” from which it could advance litigation goals within MDL 926 (silicone breast implant cases). Ironically, the appointment of neutral, court-appointed expert witnesses led to the success of “sound science,” and the collapse of the plaintiffs’ counsel house of cards. Rather than returning their litigation expense fund to the claimants, the plaintiffs’ counsel diverted the funds to an illegitimate recipient, SKAPP, to advance their litigation goals, not for MDL 926, but for the next MDL, and the next, and the next….[5]
* * * * * * *
The same year that the APHA published the SKAPP-inspired and funded challenges to Federal Rules of Evidence 702, the APHA awarded its most prestigious award, the Sedgwick Medal, to Barry S. Levy, a physician whose opinions had routinely been found to be unreliable and irrelevant in various litigation industry efforts.[6]
Perhaps the APHA had Levy in mind when it complained that “special interests have challenged highly regarded public health … researchers….” Dr. Levy seems to have less favorable accolades from trial and appellate judges.[7] For instance, one federal judge found Levy engaged in a dubious enterprise to manufacture silicosis claims in Mississippi.[8] Interestingly, Judge Jack’s opinion was not mentioned in the APHA press release for Dr. Levy’s award ceremony.
* * * * * * *
The APHA is still at it. The July 2026 issue of the American Journal of Public Health features articles on ultra-processed foods and public health. The association, in its website, describes the issue as “[a] curated collection of peer-reviewed research on the health impacts of ultraprocessed food consumption, food marketing, regulatory policy, and community-level interventions.”[9] The casual observer will no doubt detect that this issue is a one-sided presentation of advocacy positions, including a sop to the lawsuit industry about how litigation is necessary to challenge the food industry’s “toxic practices.”[10] The APHA has become an unserious politicized organization, which contributes to the erosion of trust in science and scientists.
[1] See APHA, Spirit of 1848 Caucus, available at https://www.apha.org/apha-communities/caucuses/spirit-of-1848-caucus.
[2] David Michaels, Editorial: Scientific Evidence and Public Policy, 95 (Supp. 1) AM. J. PUB. HEALTH S5 (2005).
[3] Id.
[4] This press release had been available at the APHA website <http://www.apha.org/about/news/pressreleases/2005/05arenas.htm>, last visited on February 10, 2014, but alas is no longer available. The press release, Is Public Health Science Being Derailed in the Legal and Regulatory Arenas (July 20, 2005), is available here.
[5] See Schachtman, SKAPP A LOT, TORTINI (April 30, 2010), available at https://schachtmanlaw.com/2010/04/30/skapp-a-lot/; and Conflicted Public Interest Groups, TORTINI (Nov. 3, 2013), available at https://schachtmanlaw.com/2013/11/03/conflicted-public-interest-groups/.
[6] “Barry Levy Wins APHA’s Oldest and Most Prestigious Award, the Sedgwick Medal.” APHA News (Dec 11, 2005). This newsletter is no longer online, but the Wikipedia entry for the Sedgwick medal shows Levy as the 2005 recipient. Sedgwick Medal, in WIKIPEDIA, available at https://en.wikipedia.org/wiki/Sedgwick_Memorial_Medal.
[7] See Schachtman, Silica Litigation: Screening, Scheming & Suing; Washington Legal Foundation Critical Legal Issues Working Paper Series No. 135 (Dec. 2005) (exploring the ethical and legal implications of the entrepreneurial litigation in which Levy and others were involved). See also Lofgren v. Motorola, Inc., 1998 WL 299925, No. CV 93-05521 (Ariz. Super. Ct., Maricopa Cty. June 1, 1998); Harman v. Lipari, N.J. L. Div. GLO-L-1375-95, Order of Nov. 3, 2000 (Tomasello, J.) (barring the opinions of B.S. Levy in a class action for medical monitoring damages); Castellow v. Chevron USA, 97 F. Supp. 2d 780, 793-95 (S.D. Tex. 2000); Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007); Watts v. Radiator Specialty Co., 990 So. 2d 143 (Miss. 2008); Aurand v. Norfolk So. Ry., 802 F. Supp.2d 950 (2011); Mallozzi v. Ecosmart Technologies, Inc., 2013 WL 2415677, No. 11-CV-2884 (SJF) (ARL) (E.D.N.Y. May 31, 2013).
[8] . In re Silica Products Liability Litigation, 398 F. Supp. 2d 563, 611-16, 622 & n.100 (S.D. Texas 2005) (expressing particular disappointment with Dr. Barry Levy, who although not the worst offender of a bad lot of physicians, betrayed his “sterling credentials” in a questionable enterprise to manufacture diagnoses of silicosis for litigation).
[9] See Ultraprocessed Food Section, AM. J. PUB. HEALTH online, available at https://ajph.aphapublications.org/ultraprocessedfoodssection.
[10] See Jennifer L. Pomeranz & Kelly D. Brownell, Litigation as a Necessary Tool to Challenge Food Industry’s Toxic Practices, AM. J. PUB. HEALTH, published online on June 3, 2026, at https://ajph.aphapublications.org/doi/10.2105/AJPH.2026.308539.
