Ray Hammond was 42 years old on February 4, 2004 when he was walking his six year old daughter home from school at about 2:45 p.m. As they crossed a street in in Queens, he was holding her hand when he was struck by a left turning car.
Mr. Hammond was thrown in the air, landed on the hood of the car, smashed against the windshield and ended up at Jamaica Hospital Medical Center where he was admitted and confined for three and a half months.
In an ensuing lawsuit, the driver was found fully at fault for the accident and the jury then awarded Hammond pain and suffering damages in the sum of $4,000,000 ($2,000,000 past – 4 years, $2,000,000 future – 40 years).
On appeal, the defendant argued that the pain and suffering award was excessive. The appellate court agreed, in part. In Hammond v. Diaz (2d Dept. 2011), the $2,000,000 verdict for 40 years of future pain and suffering has been ruled excessive and therefore reduced by $500,000 (the $2,000,000 for past damages was affirmed). The total pain and suffering award thus now stands at $3,500,000.
The jury made a loss of consortium award to plaintiff’s wife in the sum of $1,000,000; however, the appellate court found this excessive too and ordered a reduction to $200,000 ($100,000 past, $100,000 future).
Unfortunately, the court’s decision reveals nothing at all about Mr. Hammond’s physical injuries in this case (except to state that Mr. Hammond was hospitalized for 3 1/2 months and then treated as an inpatient at a rehabilitation hospital for an additional month).
Essentially, Mr. Hammond sustained spinal cord contusions near C-4 that left him with permanent hemiplegia (paralysis of muscles on one side of the body).
Here are the consequences of plaintiff’s hemiplegia:
- foot drop with permanent limp and need to use a foot brace
- dominant right hand and arm weakness, with muscle atrophy and and the inability to clench
Typical drop foot brace:
While in the hospital, Mr. Hammond’s left lung became infected from septic shock and he was required to undergo a lobectomy, in which the lower lobe of one lung was removed.
Previously a self-employed optician, Hammond was unable to work at all for two years. He then found a job in a friend’s practice for two days a week but testified at trial that he remains unable to grip anything with his right hand, suffers from muscle spasms several times every day and fatigues quickly while in constant pain all over his right side.
Mr. Hammond’s other activities remain severely limited in that he can no longer:
- swim (he’d been an expert)
- walk long distances or
- play with his daughter, except in very minimal ways
The defense argued for a reduction in damages because plaintiff’s condition had significantly improved from the time of his initial hospitalization (when he was unable to move any of his limbs) to the time of trial (when he could walk, perform many activities of daily living and took yoga classes three days a week).
- Two doctors testified: Ahmed Elfiky, M.D., a neurologist for the plaintiff (transcript here) and Edward Toriello, M.D., an orthopedic surgeon for the defense (transcript here). The defense has plaintiff examined by its own neurologist before trial but that doctor did not testify and plaintiff was granted a so-called missing witness charge.
- In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $5,000,000 ($2,000,000 past, $3,000,000 future) while defense counsel refrained from suggesting a figure.