Amputation Demand Letter
May 22, 1995
Mr. Stephen T. Minderhoff
JOHNSON, NEELSON AND MINDERHOFF
555 Sunny Boulevard
Any City, CA 5555
555-555-5555
Re: Plaintiff:
Lindsey Wong
Defendants:
The Mainstream Innovations Company,
Jim Best Development Productions,
Jane Gingerstein
Date of Loss: April 26, 1992
Date of Mediation: May 28, 1995
Dear Mr. Minderhoff:
I. SETTLEMENT DEMAND
We have reviewed all of the information presently available in the captioned cause in order to evaluate this case for settlement purposes in conjunction with our mediated settlement conference currently scheduled for May 28, 1995, before the Honorable Judge John E. Smith, Jr.
Suit has not yet been filed herein, however, due to the obvious nature of the liability on the part of the Defendants and the fact that we have obtained very thorough diagnoses and prognoses regarding our client's physical and emotional conditions, we are able to fully evaluate the case at this time.
Based upon the following review of the liability and damages aspects of this case, we are offering to settle all claims arising out of this tragic occurrence for the cash sum of FIVE MILLION DOLLARS ($5,000,000.00) or a combination of cash and a structured settlement of equal present value. Our opinion is predicated upon the following factors:
II. FACTUAL SYNOPSIS
Lindsey Wong is a 21 year old female who is known to her friends as Lindsey. Her date of birth is March 2, 1971. Lindsey, who is unmarried and has no children, graduated from Danville High School in Los Angeles, and attended Santa Monica College.
This lawsuit arises out of an automobile-motorcycle collision which occurred at the intersection of McCormick and Danville Avenues in Los Angeles on April 26, 1992, at about 8:45 p.m. Lindsey was operating a 1985 Honda motorcycle in a northerly direction on Danville Avenue while Defendant Jane Gingerstein was driving south on Danville Avenue in a 1991 Oldsmobile vehicle owned by The Mainstream Innovations Company. As the parties entered the intersection of Danville and McCormick Avenues, Lindsey was proceeding straight through the intersection and clearly had the right of way over Defendant Gingerstein who was turning left to enter McCormick Avenue. As Lindsey entered the intersection, Gingerstein, suddenly and without warning turned left directly into Lindsey’s path, violently and unexpectedly impacting Lindsey’s body, despite the fact that Lindsey was blowing her horn to attract the attention of the inattentive Defendant driver. Lindsey was hit with such force as to throw her through the air from the point of impact to a crash landing on the curb and sidewalk. As she landed, her left knee was crushed against the curb and her head violently struck the sidewalk, causing a traumatic brain injury to her cerebral frontal lobe and her cerebral motor strip.
As a result of Defendant Gingerstein's negligent conduct, Lindsey suffered extensive permanent physical and emotional injuries, primarily in the form of a devastating leg injury, traumatic brain injury, and a fractured hip. However, the sequelae of complications have combined with these primary injuries to become so extensive as to cause Lindsey to be hospitalized for a total of nine weeks to date, during which she endured seventeen (17) surgical procedures including amputation of her left leg below the knee.
The extensive medical care rendered to Lindsey to date has totaled $364,690.00. Lindsey faces the prospect of future health care costs of an even greater sum as she lives under the specter of a possible above-the-knee amputation and a lifetime of prosthetic devices. The development of coping mechanisms for her traumatic brain injury and emotional problems secondary to the traumatic physical injuries also add significantly to her future rehabilitative costs.
III. PARTIES
A. PLAINTIFF
Lindsey Wong is a 21 year old Asian, having been born of Vietnamese and Korean parents. Lindsey tests out in focus groups as being a very credible, extremely personable young woman with a bright future who has suffered devastating injuries, but who is making highly courageous and admirable attempts to cope with both the physical and the emotional trauma which she has suffered and continues to suffer as a result of the negligence of Defendant Gingerstein.
At the time of this tragic collision, Lindsey was working at two jobs and participating in a third in an effort to pursue a singing career. She was assistant manager of her father's restaurant and also worked part time at a fast food restaurant. Lindsey played guitar and sang with a group and was hoping to pursue a career in music. Lindsey will be presented to the jury as a very energetic and active young lady prior to this accident who had a great number of goals in life, who was constantly surrounded by friends, who had a loyal following for her musical endeavors and was a very happy, hard working young lady.
Lindsey before the tragedy will be graphically contrasted with Lindsey today. Lindsey's goal today is to rebuild her life piece by piece. As she attempts to walk normally, reestablish her ability to engage in social contacts, return to her prior ability to read and write creatively and to pursue the energetic and creative lifestyle she had before this tragedy, she is left alone to contemplate why this tragedy befell her.
Lindsey will make an excellent witness in her own behalf at the time of trial in this case for the reason that she is outspokenly honest, clearly courageous and devastatingly damaged. The level of devotion which is felt by everyone who deals with Lindsey will clearly be reflected in the testimony of her physicians, nurses, therapists, friends and family members, all of whom are very sympathetic with Lindsey's plight and anxious to help her achieve both a rebuilding of her life and career.
B. DEFENDANTS
1. The Mainstream Innovations Company
Innovations is a highly respected corporation which has provided entertainment worldwide for more than fifty years. One of the hallmarks of Innovations is its futuristic outlook and its role as a leader in technological developments. Innovations always stresses the significance of, and its leadership role in, future technology.
One of our themes in this case, which we have tested successfully on focus groups, is that Innovations, the giant futuristic technological leader, owes to Lindsey Wong precisely what Innovations adheres to as its own policy, i.e., the cutting edge in technological advances. It is Lindsey's position that when biotechnology reaches each new stage where amputees may function more efficiently with futuristic prosthetic devices, Lindsey must have sufficient financial resources to be first in line for every technological advancement that occurs during her lifetime. Innovations preaches the importance of staying on the cutting edge of technology. Since the negligence of Innovations, acting through Jane Gingerstein, extinguished much of the brightness from Lindsey's future, Innovations, practicing its own philosophy, should now step forward to fully compensate this courageous young lady sufficiently to allow her to rebuild her life as closely as possible to regain the prospects she had prior to this tragedy.
We feel that Innovations, in keeping with its carefully conceived image, will do the right thing by way of recompense to Lindsey. If not, we will ask a jury of fine Los Angeles citizens to hold Innovations to its carefully-honed image.
2. Best Development Productions
Best Development Productions has also provided a considerable amount of entertainment to the American public and will be well regarded by a Los Angeles jury. However, Jane Gingerstein was operating Mainstream Innovations’ vehicle in course and scope of her employment with Best Development Productions at the time of the occurrence in question and the jurys' disdain for Miss Gingerstein's conduct will undoubtedly carry over to the other defendants.
3. Jane Gingerstein
Miss Gingerstein is a New Yorker, residing in Los Angeles. The differences in the driving habits between New York and Los Angeles are substantial; however, Ms. Gingerstein's conduct is inexcusable in any venue, under any circumstances. Confronted with the victimization of Lindsey, Jane Gingerstein will not prevail in a credibility contest with Lindsey Wong. This is particularly true since Lindsey's version of the events leading to this tragedy are supported and substantiated by eyewitnesses to the accident.
IV. FORUM
Los Angeles is a very liberal jurisdiction in the award of damages. Lindsey's ethnicity will probably be better received in this jurisdiction than in any other jurisdiction in America. When confronted with Lindsey's courage, credibility and sparkling personality, despite her tragedy, Los Angeles jurors will be very impressed with Miss Wong and will have no difficulty in awarding a very substantial verdict in order to compensate her for the egregious wrong which has been done to her.
V. LIABILITY
A. NEGLIGENCE OF JANE GINGERSTEIN
This is a clear case of liability on the part of Jane Gingerstein, who was operating a Innovations vehicle as a permissive user at the time she committed the tortious conduct of failure to maintain a proper lookout and failure to yield the right of way to Lindsey. While ignoring motorcyclists is a common failure, it is no less egregious due to the frequency with which it occurs. Lindsey was there, on her motorcycle, clearly visible to any slightly cautious driver who bothered to look. Lindsey unquestionably had the right of way and Jane Gingerstein unquestionably failed to yield the right of way to her. Additionally, Gingerstein not only failed to look, but also failed to listen since she ignored the multiple warnings which Lindsey sounded on her horn.
The combination of failure to look, failure to listen and failure to yield, clearly and unequivocally places the fault for this tragedy directly on Jane Gingerstein, and through her, the Mainstream Innovations Company.
B. COMPARATIVE FAULT OF LINDSEY WONG
There is simply no comparative fault on Lindsey Wong because nothing she did or failed to do contributed to Gingerstein's negligence or the ensuing collision. Gingerstein has admitted to witnesses at the scene that she did not see Lindsey despite the headlights on the motorcycle. Gingerstein simply did not maintain a proper lookout and failed to yield the right of way.
Lindsey's conduct will be completely vindicated by proof of the following facts which will be clearly supported by the numerous eyewitnesses to this horrible collision:
- Lindsey had the right of way;
- she was driving within the speed limit;
- the motorcycle headlights were on;
- she entered the intersection on a green light;
- the light was yellow at the time of impact;
- she sounded her horn two times prior to impact and a third time on impact;
- she attempted evasive action by turning the motorcycle to the right; and
- her actions did not in any way contribute to this tragedy.
Consider the following testimony from the numerous eyewitnesses, all of whom support Lindsey's position:
MELISSA EISLER:
I remember hearing a honk/beep of a horn from the motorcycle that entered the intersection....It appeared as though the driver of the vehicle had turned left into the intersection and unconsciously did not notice the motorcycle driver.
DORIT PERIOTTE:
Waiting on the corner for the light to change so I could proceed north on Danville, I observed an accident at the intersection of Danville and McCormick Streets. Both vehicles in the collision had their respective headlights on at the time of the collision which was approximately 8:30 p.m. The person on the motorcycle appeared to take evasive action by turning right then left and honking the horn to avoid the collision. The motorcyclist appeared to honk twice about a second before the impact and did the best one could to avoid hitting the vehicle or anything else. The person in the car making left turn, did not take evasive action and did not appear to see the motorcycle rider before the collision.
After the accident the driver of the car stated to me, 'I didn't know where in the Hell this person came from, and I never saw it'.
The motorcyclist did absolutely everything she could to avoid the accident.
PIERRE PERIOTTE:
The motorcycle, just prior to the collision, tried to avoid the collision by veering to the right but was unsuccessful.
JODY JAMBOURIE:
When I spoke to the driver of the automobile she stated `I didn't see her'. It is my impression that both parties had a yellow light at the time of impact.
The light was turning yellow and the motorcyclist was coming straight through and was definitely, I think, more than halfway through the intersection, and the car turned right into her, it slammed into - right into the side of her.
It was amazing how far she flew. But it was really obvious that the car ran into the motorcyclist, as opposed to the motorcyclist running into the car, and it was especially evident after I got to her because her leg was so mangled that it was obvious that a huge force hit the actual leg and squashed the leg.
LINDA WALNUT:
At the moment of impact my instincts told me that the driver of the car was at fault because she turned into oncoming traffic. Our light was red at the time of impact.
It had become dark out and both vehicles had their headlights on at the time of the accident.
The motorcycle had the right of way and it was just going through on her way and the car came from nowhere.
MEREDITH BANCROFT also heard a motorcycle horn beep twice prior to impact between a motorcycle and a blue Oldsmobile.
It is obvious from the statements of the eyewitnesses that, as previously indicated, Lindsey had the right of way; she was not speeding; she entered the intersection on a green or yellow light; the motorcycle headlights were on; she attempted to take evasive action; she sounded her horn prior to impact; and her actions did not in any way contribute to this tragedy.
While we understand that you are doing the best you can with what you have to work with, it appears that your efforts to place comparative negligence on Lindsey must fail in light of the physical facts of the case which combine with the multiple eyewitness testimony to place fault directly on defendant Gingerstein and exonerate Lindsey of blame.
C. LIABILITY OF CORPORATE DEFENDANTS
Best Development Productions and The Mainstream Innovations Company may be liable under the following theories: (a) respondeat superior, under which an employer is liable for the wrongful act of its employee committed within the scope of the relationship; (b) agency, under which a partner or joint venturer is liable for the wrongful act of another partner or joint venturer committed within the scope of the relationship; (c) imputed negligence; under Cal. Vehicle Code section 17150, a registered owner of a motor vehicle is vicariously liable for injury caused by the tortious conduct of a permissive user. If it becomes necessary to file a lawsuit in this case, discovery will be conducted to develop these theories of liability. However, the fact of Jane Gingerstein's negligence appears to be beyond dispute and the statutory imputed negligence of Innovations appears to be beyond question.
