The Oct. 17 crash broke one twin's arm and left the other boy in critical condition; he was released from Stanford Hospital following a five-week stay and multiple surgeries.
The Cadigan family filed a lawsuit against the driver, Edward Nelson, seeking punitive as well as general damages for injuries ranging from multiple, extensive skin grafts and lower-body damage; orthopedic and soft-tissue damage to the upper body; and emotional trauma.
A San Mateo County Superior Court judge dismissed the request for punitive damages last month, but allowed the family's attorneys to file an amended complaint, which they did on Feb. 3.
The updated filing claims Mr. Nelson was involved in an accident in Menlo Park on Nov. 8, 2012, and had his license suspended by the DMV as a result until it was re-issued in August 2013. Therefore, the complaint alleges, he should have known "it was not safe" for him to drive.
However, according to police records, that 2012 accident involved another driver hitting Mr. Nelson's car when the driver backed out of a parking space. Investigators determined Mr. Nelson was not the party at fault, police said, which calls into question whether the DMV would even have had grounds for suspending his license.
The Cadigans' attorneys, Michael Kelly and Valerie Rose, did not respond to inquiries from the Almanac as to why they chose to include that incident in the amended complaint.
Last month the District Attorney's Office, in explaining its decision to file no criminal charges against Mr. Nelson for the Oct. 17 crash, said that he had no prior suspensions or history of reckless driving. Mr. Nelson is currently without a license, however, but it's unclear whether that's the result of a suspension or a voluntary surrender.
Under California criminal law, an infraction for driving on the sidewalk was the only possible charge, and the evidence didn't support filing it, according to the District Attorney's Office, because nothing indicated that Mr. Nelson intentionally hit the boys.
Mr. Nelson did not respond to requests for comment. His attorneys have now asked the court to compel representatives from BMW to show up for deposition regarding data collected from his SUV after the Oct. 17 accident.