This is a summary of Appendix A of Design for Prevention (D4P), a handbook for the professional engineer, supporting due diligence toward prevention law compliance.  The main part of D4P describes the pragmatic foresight methodology for achieving prevention in complex systems.  In Appendix A, the author notes that tort law depends on the definition of “foreseeability”:  if a stakeholder incurs damage and that damage was foreseeable, then tort liability applies.  The author informs the Court that technological advances in dynamic modeling and simulation have made practically every instance of stakeholder damage foreseeable, requiring a comprehensive reevaluation of tort law.

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Amicus for Prevention

Summary

Preface and Declaration

The “amicus” is directed at professional engineers and the judiciary, both pledged to hold the public health, safety and welfare paramount.  The purpose is to assist due diligence in preventing stakeholder damage, under canon I.1 of the professional engineering code.  It’s our duty as licensed engineers to inform the court on such matters of public interest.  Over 4,000 years ago, the Code of Hammurabi fixed responsibility for the failure of buildings on their creators.  The advances in computer power and software tools have increased the legal liability of engineers, by increasing the foreseeability of hitherto “unforeseeable” engineering problems.

Declaration

As licensed professional engineers we claim, under penalty of perjury, that the following is true and correct.

Leave

1. I.This Court has broad discretion to permit the filing of an amicus
   

The information is both timely and useful.

2. II.The “public interest” nature of this disclosure, which involves important legal, welfare and safety issues for society as a whole, clearly justifies the intervention of an amicus
   

3. III.The Court has significant “gatekeeper” responsibilities as set by Daubert and progeny
   

We assert that this amicus is reliable, auditable and relevant.

4. IV.Professional Engineers are independent officers of the Court
   

By precedent, the PE has an obligation to speak up about matters of vital interest, to “whistleblow” when public safety is involved, to warn “up the ladder” before significant damage occurs.

5. V.The Court has sole responsibility to establish the standard of care in litigation involving the duty of “foreseeability”
   

6. VI.Professional Engineers are uniquely entrusted by society to husband the science, technology and methodology of pragmatic foresight—the engine of “foreseeability”
   

Pragmatic foresight is engineering.  Engineers have an obligation to “Let no harm take place,” and engineers accept its necessity.  Engineers thus have a strong incentive to improve their foresight skills. The results of engineering are anonymous—owned by Natural Law—if successful; pinned on the perpetrator if not.  The results of the engineering process are objective and transparent to testing, not simply to be “trusted” due to reputation.  The advances in foresight competency necessarily affect the conduct of tort law.

7. VII.Professional Engineering is the only profession that shares, as a learned and regulated profession, the same paramount duty to safeguard the public assigned to the Court
   

The PE takes a public oath to uphold canon I.1.  Only engineers have the responsibility—and the wherewithal— to prevent damage.  Exploration trips into the future (via modeling and simulation) are a necessary part of (foresight) engineering.  The results of engineering change culture by changing work habits and, consequently, habits of thought.  To execute his responsibilities, the engineer relies on foresight technology.  Not using the technology is irresponsible.  Engineers who understand this technology can help the Court objectively resolve disputes about foreseeability, even though—as captives of institutions—they may be reluctant.  For the protection of the public, the Court needs to adapt to this change in foreseeability.

8. VIII.There is no other professional source of this particular expertise, engineering process, positioned to inform the court of significant and relevant emergent issues in the methodology of foreseeability
   

Although society—and the Court—often ignore engineers, engineers are the unique source of knowledge about foreseeability.  To protect the public, the court should listen to what engineers have to say about foreseeability.

9. IX.Conclusion
   

Since this information is timely, useful, and in the public interesting, the court should admit the following amicus.

Amicus for Prevention

1. I.Statement
   

Due to advances in foreseeability, Court rulings will increasingly involve the duty to protect the health, safety and welfare of the public.  Engineers have an obligation to prevent damage to stakeholders, and hence are concerned that the law be consistent with new engineering capabilities.  This amicus informs the Court about the new capabilities and encourages the Court to use this information in relevant Court proceedings.

2. II.Summary of Argument
   

The remarkable advances in foresight capability imply the need for changes in tort standards of “foreseeability” and the selection of appropriate expert witnesses.

3. III.Argument
   

1. A.The standard of care for “foreseeability” as used in tort law has materially advanced
   

Tort’s standard for foreseeability is engineering practice.  Technology has made practically everything about engineering artifacts foreseeable: there are no excuses.  Every engineering failure should have been foreseen: plaintiffs take note.  Engineers now have the capability, hence the duty to foresee every possible mode of failure.  If damage occurs, the Court should determine whether pragmatic foresight was employed.

2. B.The impact on litigation is proportional to the magnitude of the advance in pragmatic foresight
   

Engineering accomplishments are limited by available materials, power, and intelligence.  Those limits have all been vastly expanded, changing engineering not only quantitatively but qualitatively: engineering is now fully objective, independently auditable for full scrutable connection to natural law—hard transparency.  Institutional conventions—business-as-usual—are not compatible with pragmatic foresight.  Though they abhor engineers, institutions are addicted to the products of engineering.  Business-as-usual is no excuse for damage done.  The results of pragmatic foresight are transparent and independently auditable.  Modern capabilities for accident reconstruction use the same technology as pragmatic foresight.  Fewer than 10% of institutions value pragmatic foresight; law forbids PEs from working for the other 90%.  Foresight has no support in Congress.  This amicus alerts the Court to the impact of foresight advances on the law.  With the technology, engineers are obliged to foresee—and prevent—problems before they occur.  The Court should use this standard of care to protect the public from illicit damage, and will be supported by engineers in doing so.

3. C.Elevation of the foreseeability standard of care has precipitated a new duty to determine status relative to the institutional inflection point
   

Institutions proliferate rules, typically increasing their vulnerability to unavoidable disturbances. In the past, institutions treated engineers’ conclusions as mere opinions, to be weighed with other opinions and precedent.  With the delivery of hard transparency, engineering is now objective, tied to Universal Law, not subject to opinion.  Although engineers cannot predict the future in detail, engineers can depict the range of events that may occur.  Prevention can no longer be left to the subjective realm, with its history of damage.  If nothing changes, hindsight’s rules works fine.  Things always change, however, so rules become obsolete; acting on obsolete rules makes damage worse.  PE must withdraw from a project constrained by rules that will prevent its success.  When rule-based business is what prevents prevention, then adding more rules (corporate or governmental) will not solve the problem.

4. D.The Court’s burden as “gatekeeper” can be substantially assisted by the elevated standard of care for foreseeability
   

Foreseeability is about engineering, not science. The Daubert decision listed factors for judging scientific evidence: tested theories, peer-reviewed laws and principles, known error-rate methodology, standardized method application, and widely accepted engineering process.  Pragmatic foresight scores high on every factor. [Missing period after “with a passion”.]  The tools of pragmatic foresight remove all guesswork from engineering, correctly revealing the counterintuitive dynamics of systems.  Many people find the pure objectivity of engineering distasteful, even though it works.  The engineering process begins with a goal.  Next step is the “front end”, which defines design basis scenarios.  After that, goal-seeking begins, with means being continually adjusted until the end is measurably accomplished.  Analysis and synthesis are fundamentally different: analysis can be ordered; synthesis only works with volunteers.  DARPA offers rewards for synthesis; volunteers come forward and achieve the goals.

4. IV.I.Conclusion
   

The Court is urged to update its foreseeability standard: all damaging events are now foreseeable through established engineering practice.