Trials and Errors and Milward v. Acuity
Today the U.S. Supreme Court denied U.S. Steel's petition for writ of certiorari in Milward v. Acuity. As a result plaintiffs' expert is now free to testify about his untested and in fact untestable hypothesis. It's a shame because the First Court of Appeals has apparently lost sight of what science, at least reliable science, is all about.
Consider "Trials and Errors: Why Science is Failing Us". The article describes what was deemed the shocking failure of torcetrapib - a drug designed to prevent so-called "good" cholesterol (HDL) from converting into "bad" cholesterol (LDL). Noting that "[t]here was a vast amount of research" supporting the proposition that increasing the HDL:LDL ratio would prevent coronary artery disease, and given that "the cholesterol pathway is one of the best-understood biological feedback systems in the human body", scientists assumed that they knew how torcetrapib would act and that its effect would be positive. Instead, "the drug appeared to be killing people."
Rather than a failure of science the story of torcetrapib should be viewed as a triumph, at least so long as science is viewed as a method for subjecting big ideas to the acid bath of skepticism rather than the hatching of seemingly clever notions. Milward, by allowing an expert to base his causation opinion on nothing more than a plausible hypothesis consisting of a proposed biologic mechanism far less well understood than that of the cholesterol pathway, embraces the big idea view of science.
The debate is an old one but one in which common law countries have generally sided with the scientific method over mere idealism. Perhaps it has something to do with the experience of French and English bridge designers. The early French suspension bridges had an unfortunate tendency to collapse despite being beautiful whereas the English versions tended to be ugly but sturdy. For the French designers the thought was "it must stand because it is so beautiful". For the English the idea was "it must stand or I shall be fired".
The opinions of experts should be no less tested and no less reliable than bridges as both have so much riding on them.
