Brain Injury Demand Letter
This is a demand letter from an actual case. The names of all parties have been changed.
Re: Cause No. 00-00000; Brian Hunter Forrester and Jacqueline Forrester vs. Herrington Wholesale Products, Inc. and James Anderson; In the District Court of Keethon County, Texas; 700th Judicial District
Gentlemen:
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 proposed mediated settlement conference.
While discovery has not been undertaken in this case, we have interviewed or taken statements from most of the relevant witnesses whose testimony would bear on the issue of liability. We are confident that we have an accurate evaluation of the liability aspects of the case. Additionally, we have obtained and provided to you copies of all of the relevant medical records, tests, and reports and we have also interviewed or taken statements from most of the primary healthcare providers so that we have a clear picture of Brian Forrester's medical prognosis. Thus, we are able to fully evaluate the case at this time for settlement purposes.
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 $10,000,000.00 or a combination of cash and a structured settlement of equal value. Our opinion is predicated upon the following factors:
II. FACTUAL SYNOPSIS
In June, 1997, Brian Forrester and Jacqueline Forrester were married and embarked on the wonderful journey of building a life together and building financial security for their family while vigorously pursuing their respective careers. Brian and Jackie did not know on that joyful wedding day in June that only two and one-half months later, on August 25, 1997, their marital bliss, financial security and the pursuit of excellence in Brian's career would abruptly end. They also were unaware that when tragedy stuck on that fateful August day they would be instantly confronted with severe depression, financial catastrophe and the permanent loss of many of Brian's mental functions which would bring an abrupt end to his career in his chosen profession. Brian and Jacqueline were blessedly unaware in June that they would soon be victimized by a maliciously reckless truck driver and that life together as they dreamed it and deserved it would soon be destroyed.
Brian, had an auspicious future as an electrical engineer at Maxwell, Inc. He served as a network administrator, the lead engineering programmer for Maxwell's largest in-house project, and as a technical writer for major bid proposals. He had been prepared for his next assignment as the project manager for Maxwell's next major project when this horrific, tragic event took place.
On Monday, August 25, 1997, Brian decided to go to Boerne to have dinner with Jackie. As he approached the 8000 block of Interstate 99 East near the Lotus plant, there were two very important facts over which he had no control. First, the freeway was under construction which caused narrowing lanes which in turn caused heavy traffic congestion. Second, a Herrington Wholesale Products tractor-trailer driven by James Anderson was traveling eastbound, approaching Brian Forrester’s Ferret at an unsafe rate of speed.
At approximately 4:45 p.m., as Brian sat patiently in his car, tragedy struck suddenly. James Anderson, in the course and scope of his employment with Herrington Wholesale Products, Inc., and driving his tractor-trailer at a negligently high rate of speed considering the freeway circumstances, wilfully ignored the traffic in front of him. Instead, he frantically tried to fill out his travel log because he had received word over the radio that the checkpoint in Willow County was currently open and inspecting.
As a consequence, a chain of events occurred, resulting from James Anderson's malicious disregard for the safety and welfare of Brian Forrester and others on Interstate 99 at that ill-fated moment, which caused the tragic deaths of two people and the life-threatening and permanent injuries to Brian. Nothing could have been done to avoid the collision from Brian's perspective. The accident report and statements from the investigating officer and eyewitnesses indicate that Brian never knew what hit him. Due to his brain injuries, Brian has no recollection of the events surrounding the tragedy.
Brian was immediately knocked unconscious in the impact but fortunately regained consciousness in time to avoid drowning in his own blood. Brian suffered numerous severe blows to his body, the most life-threatening of which was the blow to the abdomen which caused the mesenteric tear in his colon. Witnesses will describe how Brian was profusely spitting up blood from the internal injuries and was coughing severely and chocking when he regained consciousness. As he became aware of his situation, he was screaming in pain as he attempted to extricate himself from the mangled Ferret.
After trying diligently to free himself from the tangled metal which entrapped him, Brian cried for help and despite the efforts of people at the scene, there was no way to free him from the vehicle until the emergency medical team arrived. Brian experienced the thirty most excruciatingly painful and terrifying minutes of his life as he sat trapped in the Ferret, enmeshed in metal, and waited helplessly for the E.M.T. team to use the jaws-of-life to finally free him.
Fortunately, it was obvious, even from a nonphysical examination assessment, that Brian's life was seriously threatened by the multiple injuries which had been inflicted upon him. Thus the E.M.T. team called for the LifeFlight helicopter and as soon as he was freed from his mangled vehicle, he was rushed by LifeFlight helicopter to St. John Hospital where he exhibited a Glasgow Coma Scale score of six (6) and was immediately diagnosed with severe brain injuries. On the first night of his hospitalization, Brian's Glasgow Coma score dropped to 3, the lowest number on the Glasgow scale, indicating the extreme possibility of brain death. Fortunately, Brian emerged from the coma in three days. When the doctors were able to complete the physical examination they found that he suffered a multitude of injuries in addition to the severe brain trauma, the most serious of which included the following: a right femoral head fracture with posterior subluxation and accompanying dislocation, partial blindness in both eyes, ruptured discs in the cervical area of the spine, ruptured lumbar discs, and a right colonic mesentery tear. He spent approximately two weeks at St. John Hospital undergoing repeated CT scans which verified the severity of his brain injuries.
On September 8, 1997, he was transferred to Brounnel Rehabilitation and Research Institute (B.R.R.I.), where he participated in comprehensive evaluation of his severe brain injuries. For the next two and one-half months he initiated occupational, physical, speech/language, and recreation therapies before being transferred to the Temple Learning Center (TLC) at Llanview. From December 1, 1997, to January 31, 1998, Brian underwent transition therapies at TLC to help him function without around-the-clock nursing care.
After the emergent life-threatening injuries were evaluated and treated and Brian was rehabilitated to home care, his treating neurologist, Dr. Brent Galloway undertook the evaluation of Brian's physical injuries and his long-term psychological care and treatment needs. Dr. Galloway referred Brian back to Dr. Anthony Curtis who diagnosed cervical and lumbar disc herniations; to Dr. Arthur Horowitz who diagnosed the partial blindness in both eyes; and to Dr. Timothy Majors who diagnosed the nature, extent and consequences of Brian's permanent severe brain injuries.
On January 22, 1998, and January 29, 1998, Brian underwent a comprehensive neuropsychological evaluation which revealed that he suffers from severe neurocognitive impairment in three main areas: storage and retrieval of verbal information, including severe impairments in visual reconstruction memory; speed of processing information; and executive functioning.
Currently, Brian is enrolled in the Project NewStart program where he is undergoing neurocognitive rehabilitation. As part of the program, Project NewStart will assist Brian with pain management treatment, individual and career counseling, and independent living rehabilitation. The prognosis for the neurocognitive treatment plan is attached in the enclosed Exhibit List and exceeds $800,000.00.
To date, Brian has incurred approximately $400,000.00 in medical bills, but this figure continues to increase on a day-to-day basis. A life care plan is presently being prepared which will clearly exceed $1,000,000.00 in medical and neurocognitive rehabilitative care.
III. PARTIES
A. PLAINTIFF - BRIAN HUNTER FORRESTER
Brian Forrester will greatly impress a Keethon County jury with the fact that on the day before this tragedy he was a 31-year-old electrical engineer with an exciting life ahead of him, both professionally and personally. Brian was a newlywed of two and one-half months and was facing a very bright personal future building a marriage with his new bride and an equally bright professional future as he was being trained to be a Project Manager with his company. After years of hard work to acquire an education, life was very good for Brian Forrester as he was married to a wonderful woman and was progressing rapidly in his chosen profession.
Through absolutely no fault of his own, Brian's health, happiness, and career disappeared in an instant and he was left physically crippled, emotionally shattered, and devastatingly brain damaged as a result of the negligence of James Anderson.
Brian was born in England and since an early age had two great desires in his life. His first desire was to be educated in America. His second great goal was to pursue his passion for computers into a job which was on the cutting edge of high technology. For Brian this meant a position as a Project Manager in the technological field.
Brian completed his first goal when he graduated from Evansville University with a degree in electrical engineering and a major in computer technology. For the past eight and one-half years he has pursued his second goal of becoming a high-tech Project Manager. At the time of this tragedy, Brian had moved up rapidly to the position of Systems Engineer and was being groomed as a Project Manager with his employer, Maxwell, Inc. That dream is now shattered since Brian will never again work in the highly competitive computer technology field.
A Keethon County jury will recognize that despite his severe emotional, physical, and mental limitations, Brian is a very courageous young man who is doing the best he can with what he has left in an effort to put his life back together.
B. PLAINTIFF - DR. JACQUELINE K. FORRESTER
Jacqueline K. Forrester, Ph.D. is a chemist at Dupont in Boerne who was the newlywed wife of Brian Forrester at the time of this tragedy. The story of how Jackie became aware of the devastating injuries to her husband will touch the jurors' hearts and create considerable empathy for this fine young woman.
At 6:00 p.m. on August 25, 1997, Jackie was becoming increasingly concerned because Brian was late arriving in Boerne for dinner and had not called. Since Brian was always very punctual about his schedule and thoughtful about calling, Jackie's concerns grew by the minute. Finally, when she could no longer stand the wait, she got in her car and headed westbound on I-99 towards Springfield desperately searching for her newlywed husband.
Jackie's fears increased exponentially when she came on the scene of a tragic accident at Highstreet Road and Interstate 99. She made her way through the deadlocked traffic looking for the silver Ferret or some sign of her husband. Brian was not there but the police confirmed to her that there had been deaths in this tragedy and that her husband had critical, life-threatening injuries and had been LifeFlighted to St. John Hospital.
Crying hysterically, Jackie managed to get to St. John Hospital where she was told that there was no patient by the name of Brian Forrester admitted to the hospital. Her hysteria increased as she surmised that if Brian was LifeFlighted to St. John but was not admitted as a patient, he must be dead.
After a nerve-racking and emotionally devastating search, Jackie finally learned that her husband had just come from emergency surgery where the immediately life-threatening aspects of his injuries had been addressed. However, she learned that he was still in danger of dying and that in the event of his survival the nature of his injuries were both devastating and permanent.
As Jackie has made her way through the quagmire of complications that have become her life since this tragedy, she has come to learn and reluctantly accept that the healthy, happy, high-tech computer whiz that she married has been replaced by a severely depressed and permanently brain-injured man whose only resemblance to her husband is physical.
The negligence of James Anderson has taken away from her the highly intelligent, ambitious, and energetic 31-year-old husband and left her with a young man who is physically crippled, emotionally labile, and severely brain injured.
Jackie seeks damages for loss of consortium and loss of household services as Brian's spouse. She is a highly-educated, competent person who has suffered immensely as a result of this tragic event.
As newlyweds, the couple had a long and bright future ahead. However, Jackie is now left with the task of aiding Brian in the long and arduous rehabilitation process. Despite the devastation of the severe traumatic brain injuries to her husband, Jackie has remained strong and courageous in her attempt to deal with this situation. She has taken weeks at a time off from work in order to be alongside Brian throughout the entire ordeal. The jury will appreciate her intelligence and determination in helping her husband.
At present Jackie is confronted with putting her career on hold and taking a leave of absence from her excellent job at Dupont in order to stay home and care for her severely depressed and brain- injured husband. Jackie is gravely concerned that Brian's level of depression requires her constant presence both to serve as a source of comfort for Brian and in an effort to reduce his level of depression. There is also the underlying fear that the suicidal ideation which plagued Brian during his hospitalization at B.R.R.I. may return.
C. DEFENDANT - JAMES ANDERSON
The malicious actions of James Anderson include driving an eighteen-wheeler in heavy rush hour traffic on an interstate freeway approaching a construction zone at 63 miles per hour, running on and off the road and failing to maintain any lookout, while filling in his delinquent log book. Such actions rise to the level of acts which involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others and which any actor bright enough to have a driver's license should recognize as very hazardous. Ignoring such hazards is malicious, particularly when the Defendant created many of the hazards he ignored.
The jury will be made aware of James Anderson's negligent homicide guilty plea arising out of this incident. We will also establish that Mr. Anderson was filling out his log book at the time of the collision, failed to maintain any lookout, was driving at an excessive rate of speed under the circumstances and conditions, and that his conduct meets the legal definition of malice.
We will outline a picture to the jury of a careless individual who demonstrated reckless indifference for the welfare and safety of those unfortunate persons traveling near him on Interstate 99 during rush hour on August 25, 1997. Mr. Anderson clearly faces a finding of malicious conduct which will support a verdict for exemplary damages in this case.
D. DEFENDANT - HERRINGTON WHOLESALE PRODUCTS, INC.
Herrington Wholesale Products, Inc. is a Texas corporation which probably will have good standing before a Keethon County jury. However, a jury may look askance upon Herrington Wholesale Products when they see the quality of the personnel to whom Herrington Wholesale Products entrusts their large eighteen-wheeler vehicles.
