On March 29, 2009, Blanca Soltero was injured when she fell from a slippery two foot high ledge in a subway tunnel while working as part of a team of New York City Transit Authority track workers who were replacing old tracks.
Claiming significant knee injuries, Ms. Soltero sued the City of New York, the owner of the subway tracks. Her motion for summary judgment under Labor Law 240 was granted and affirmed on appeal.
In the ensuing damages trial, on July 20, 2012, the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $508,000 ($108,000 past – 3 1/2 years, $400,000 future – 21 years). She was also awarded lost earnings damages in the sum of $1,234,000 ($246,000 past, $988,000 future – 21 years).
Both parties made post-trial motions seeking modifications of the amounts of the damages awards:
- plaintiff argued that (a) the pain and suffering awards were inadequate and (b) the future loss of earnings award was also inadequate
- defendant argued that (a) the pain and suffering awards were fair and reasonable and thus should not be increased and (b) the loss of earnings awards were excessive.
The trial judge, Alison Y. Tuitt, ordered an increase in the pain and suffering awards to $1,125,000 ($375,000 past, $750,000 future) and declined to disturb the awards for loss of earnings.
As set forth in Judge Tuitt’s post-trial decision, plaintiff’s right knee injuries included several torn ligaments (anterior cruciate, medical collateral and posterior collateral) as well as tears of her meniscus. She was 32 years old on the date of the accident and over the next two years underwent four surgeries:
- on 8/7/09 – anterior cruciate ligament (ACL) reconstruction with tibialis anterior allograft, lateral meniscus repair, partial medial meniscectomy
- on 5/3/10 – arthroscopy, chondroplasty lateral compartment, removal of painful hardware, partial medial meniscectomy
- on 1/21/11 – arthroscopy, partial lateral meniscectomy, chondroplasty and removal of loose chondral body
- on 9/26/11 – arthroscopy, patellofemoral chondroplasty, microfracture lateral femoral condyle, grade IV chondral defect, and open tibial tubercle osteotomy/anterior medialization
Plaintiff’s orthopedic surgeon, Laith Jazrawi, M.D., testified that her knee was already arthritic and would get worse, she will have permanent pain, discomfort and reduced range of motion, will never be able to return to work as as trackworker and will require two total knee replacement surgeries in the future. There was no medical testimony for the defense.
The defendant consented to the increased pain and suffering awards but appealed claiming that (a) the past loss of earnings award was excessive and should be reduced by $51,000 (based upon calculations of plaintiff’s expert and the amount asked for by plaintiff’s attorney is his closing argument) and (b) the rate of interest to be paid on the judgment should be reduced from 9% to 3% as set forth in Public Authorities Law Section 1212(6).
In Soltero v. City of New York (1st Dept. 2015), the appellate court (a) rejected the defendant’s argument as to past loss of earnings holding that there was sufficient evidence at trial for the jury’s award and (b) agreed with the defendant that 3% is the proper judgment interest rate in this case because a public authority (New York City Transit Authority) is the real party interest, is bound to indemnify the City pursuant to a lease and will ultimately pay the judgment.
- Plaintiff was also awarded $258,000 for future medical expenses (21 years) and the parties stipulated to $75,000 for past medical expenses (the amount paid by plaintiff’s workers compensation carrier).
- Although two years before the trial (and a second time one year before trial), defendant had plaintiff examined by an orthopedic surgeon, no expert witness disclosure was made until the eve of trial and the defendant was therefore precluded from calling the expert (a new orthopedic surgeon) to testify at the trial.