Standard of Care.

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The general debate on the regulatory functions of tort law focuses on the relative institutional advantages of public and private law

At bottom an argument between the distributive superiority of public regulation and the advantages of flexibility of private law, the debate tend to cast two systems as parallel universes which can do little but frustrate each other’s objectives. 

Within tort law, decision making authority is often necessarily allocated to the political process (statutory requirements), technical knowledge (feasibility), to the market (risk/benefit), to professions (custom) or even to general social norms (reasonable man, legitimate consumer expectations). The comparative inquiry into the way standards fit into this normative fabric cannot stop at the threshold issue of ‘public law’ versus ‘private law.

        —Harm Schepel, The Constitution of Private Governance, Hart Publishing, Oxford and Portland, 2005, Print       

Standard of Care – Ethos, Pathos, Logos. Of these, Ethos is the most important

Liability associated with science and custom has evolved from the1880 Pennsylvania ‘per se’ rule as due care never exceeded social custom, to the 1932 TJ Hooper Case wherein reasonable prudence is never the sole  measure, and on to the 1975 Fifth Circuit “inherent trustworthiness” of codes and standards.

In 1993, the Supreme Court of the United States recognized competing scientific methods thereby defining “expertise” related to a scientific matter. [Daubert v Merrell Dow Pharmaceuticals]. Over the last half century scientific methods have rapidly advanced partly due to revolutionaries from within the scientific community, a failed transparency, and partly to philosophical discontent. Logical positivism, falsification, and paradigm-shift are three examples of today’s scientific methods.

The 1998 Third Restatement of Torts maintains strict liability over manufacturing defects leaving design and warning defects open to scrutiny. Compliance within a safety statute is properly considered in determining whether the product is defective with respect to the risk sought to be reduced within the statute but does not preclude as a matter of law a finding of product defect.  Non-compliance with the statute produces per se defectiveness, whereas compliance produces indicative, but not dispositive, evidence of non-defectiveness.  This raises the debate of an ex-post judiciary as inept, and an ex-ante regulatory agency as corrupt.

Today, standard of care is a persuasion. The Third Restatement process its logos, Fifth Circuit inherent trustworthiness its ethos, and statutory, technical, market, professional, and general social norm “expertise” its pathos.   The judge acts as the gatekeeper of good science and the jury decides how a standard of care fits into a normative fabric.

To mitigate our risk of bolting design defect in ASME B31.1 and B31.9 piping code applications, we have chosen to follow the inherent trustworthiness of the statutory ASME Boiler and Pressure Vessel Code Division 1.  

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