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Jay Breakstone
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Sully's Saga

     We have always loved to fly. Our father was a bombardier on B-24's during the war and he painstakingly took us through his own version of ground school using every war movie ever made involving flight. We never watched movies about the Navy, unless of course, they involved aircraft carriers. All throughout high school we wore his leather A-2 flight jacket on the subway and a pair of large Ray-Bans, the one with the sweat bar. His original A-2 still sits in our closet, as do his uniforms; his bombardier wings sit in a velvet box next to our bedside. One of the first poems we ever remember reading was "High Flight", by John Gillespie Magree, Jr., an RAF pilot who died shortly after writing these words: "Oh, I have slipped the surly bonds of earth; And danced the skies on laughter-silvered wings."

     Flight is a bargain between man and machine. However, it is a unique one, for man controls both seats at the table. It is man who makes the machine that carries him. The sky just exists and has no position as to life or death. It is man who sees the risk, weighs it and seeks to beat the odds. If he does his job well, the risk is less than driving on the highway. If he fails, however, the risk is not worth the bet. Flying is a poker game played on only one level - - all in.

     Capt. Sully Sullenberger understands this in a way which few of us ever will. In January 2009, he landed a crippled airliner on the Hudson River in Manhattan with 155 souls on board. They all survived. This is not supposed to happen, for when planes crash, especially into the water, people are supposed to die. The machine failed; the man didn't. At the end of the day, that spoke volumes to us. It's the man; it always was. Whether building the machine and the infrastructure surrounding its operation, it's the man who makes flight possible.

     So when two brand-new Boeing airplanes crash and kill people, the aircraft isn't to blame. Perhaps the men who built it, who operated it, who sold it, who supervised its operation or who were supposed to be the guardians of our safety are at fault. Putting it bluntly, it's fair to ask who each of these people were working for at the time they made decisions which led to the two planes crashing. Airplanes neither fly by themselves nor crash by themselves. It's man, remember, who holds the balance. Last week, Capt. Sullenberger said as much when he asked what the Federal Aviation Administration, the guardians of our safety in the air, did or didn't do and on who's behalf they were doing it. That's a fair question from someone who, you can bet your bottom dollar, knows the answer. Sullenberger said that both Boeing and the FAA “have been found wanting” in an “ugly saga that began years ago but has come home to roost with two terrible fatal crashes.” For want of funds, the FAA has let the manufacturers certify and inspect their own planes. This is a recipe for disaster. “For too many years,” Sullenberger said, “the FAA has not been provided budgets sufficient to ensure appropriate oversight of a rapidly growing global aviation industry. Staffing has not been adequate for FAA employees to oversee much of the critically important work of validating and approving aircraft certification.”  So that delicate balance between the sky and those that fly in it has been upset, at the cost of 350 dead. To those that love flight, this is an abomination. As 19-year old Magee ended his poem, "and, while with silent, lifting mind I've trod the high untrespassed sanctity of space, put out my hand and touched the face of God." An abomination indeed. 

     We have changed the font and type size we have been using here in the new MondayMonday, we hope this feeds the nostalgics among you and also those whose age is gently catching up with them. Comments on more pithy matters continue to be welcomed.

     Good attorneys know that facts control law and not the other way around. Trial law applies itself to that which has already occurred, once we figure out precisely what that is. Often we are alchemists, spinning straw into gold.Discovery is part of that formula, for sometimes the facts are in the hands of the bad guys and they don't seem all that willing to disgorge them. The advent of technology and electronic media has created new problems in discovery and new solutions. Remember, we plaintiff's lawyers are very, very smart.

     And so, in Vargas v. Lee, 2019 NY Slip Op 02142 [2d Dep't 3/20/19], the Appellate Division was faced with a new modality on the discovery horizon. Plaintiff was hospitalized for surgery on his foot. Unfortunately, the hospital and his physicians failed to manage his post-surgical care properly, resulting in substantial swelling, infection, gangrene and ultimately the amputation of his leg from the knee down. In trying to discover just what this post-surgical care was and when it was administered, plaintiffs' counsel sought the medical records of the hospital. In moving to compel such discovery, plaintiffs demanded not only the records themselves, but the audit trail pertaining to patient's care. As explained in the decision "plaintiffs asserted that every time the injured plaintiff's electronic medical records were accessed during the relevant period, an entry was created in [the hospital's] database which contained 'information about the [injured plaintiff's] care.'" Since the timeliness of diagnosis and treatment were key issues on the issue of malpractice, the audit trail was obviously relevant.

     Supreme Court [Dabiri, J.] disagreed, holding that the audit trial was nothing but "metadata" and that metadata is not routinely discoverable "unless the requesting party shows good cause." Even on renewal, when plaintiffs demonstrated that the hospital had willfully withheld portions of the patient's file while, at the same time, claiming to have made full production, the motion court held firm in its denial. Its  logic, however, would not carry the day in the Appellate Division. 

     After reviewing both the discovery in this case and the law's support for broad-based discovery, the Appellate Division turned to "audit trails." The hospital did not dispute that audit trails did precisely what plaintiffs said they did, i.e., showed the sequence of by whom, when and where a patient's records had been accessed. This was required by federal and state law. Moreover, it clearly was relevant to allegations of negligence in post-operative care. The hospital's technology vice-president's testimony that compiling the audit trail would be "time-consuming" was given little, if any, weight. Ultimately, audit trails (get ready for it) become happy trails for plaintiffs here.

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You don’t have to go it alone. Jay Breakstone, Appellate Counsel with Parker Waichman LLP, is here to help. You can ask Jay Breakstone your question right now, here on this website.
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Jay Breakstone
Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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Parker Waichman
Parker Waichman LLP has been fighting for the rights of victims for over two decades. Parker Waichman LLP is one of the preeminent personal injury law firms in the US.
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