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15 posts from February 2009

February 26, 2009

Octomom Porn Offer Follow-Up: Nadya Suleman Wisely Rejects the Offer

Octomom rejects offer
As a quick follow up to my previous blog post, it has been reported that Nadya Suleman, also known as Octomom, has rejected the offer by Stephen Hirsch of Vivid Video to star in a porn film for $1 Million.  Read the story here.  My faith in motherhood has been restored.


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Octomom Offered $1 Million to Do A Porn Movie: Sordid & Offensive

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I haven't really been following the Octomom story because, frankly, I don't think it's any of my business what she does.  It's a bit scary to know that Nadya Suleman has a 2 bedroom, 1 bathroom apartment within which to raise 14 young children and babies.  Is it really any of my business, though? My take on her is that she's a woman who desperately loves her children.  

Octomom is also in a very vulnerable situation right now - the buzz is that her living situation may cause the powers-that-be to prevent her from taking her new babies home from the hospital. Click here

In light of that horrific situation, Fox News reports that Vivid Video has offered her $1 million to do a porn movie. I have no idea how this will turn out but, it seems to me, that Vivid is preying on this desperate woman's love for her children and, in so doing, is asking her to denigrate herself by having sexual relations with 8 men in this proposed movie project.


Please read the following passage - does this offend you as much as it offends me or am I just out of touch?

"The number eight is obviously heavily associated with her so we would like to work with that," Vivid’s CEO Stephen Hirsch told Tarts. "But we would really love just to sit down and talk with her and come up with something she feels comfortable with. We want her to be involved with the whole thing from the plot line to the packaging."

Hirsch says Suleman has received their offer and is considering it. Suleman did not return calls for comment.

"She’s struggling financially and this is a woman who wants to provide for her kids," Hirsch said. "This way she can hold her head high and not be using taxpayers money to support her family."

I ask again: Is anyone else outraged and offended by this sordid plan or is it just me?  I'm not saying that this woman is a saint (I have no way of denying it, either) but she is a mother and this whole idea of capitalizing on her vulnerable situation by dangling $1 million in front of her is an insult to the institution of motherhood.

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"Treated With the Respect That You Deserve"



February 23, 2009

Video New California Law for 2009: DUI Zero Tolerance

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Uncle sam no drink drive This new law prohibits a convicted DUI offender from operating a motor vehicle with a blood alcohol level (BAC) of .01 percent or greater while on probation for DUI. The law requires the driver to submit to a Preliminary Alcohol Screening (PAS) test, a portable breath test to determine the presence of alcohol. If the driver refuses, or if the driver submits and has a BAC of .01 or greater, a citation will be issued, the driver's license will be taken and driving privileges will be suspended. In addition, the vehicle will be impounded.





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February 22, 2009

2009 Laws: Text Messaging in California Video - Don't Do It While Driving!

TextmessagedrivingWe all know how dangerous and annoying it is to text while driving.  How about the person crawling in front of you at 10 miles per hour because they're "safely" texting.  Don't think that this little stunt increases safety!  Or the person so involved in their texting that they don't notice the car in front of them coming to a halt?  Well, California has taken care of this issue once and for all (we hope).  See video below.

This new law makes it an infraction to write, send, or read text-based communication on an electronic wireless communications device, such as a cell phone, while driving a motor vehicle in California. Previously this was only illegal for individuals under 18 years of age, but now has been expanded to all drivers.





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February 21, 2009

Lowell Steiger's Mediation: A Sample Video of a Neighbor Dispute

This is a glimpse into a mediation wherein the issue is that Javier's dog chews up Michael's yard and all of its contents -- on a regular basis.  Thanks to Javier and Michael for allowing this session to be recorded.



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Frivolous Lawsuits - Not So Fast: A Lifecare Planner Speaks Out

Victoria powell Victoria Powell is the founder and current President of VP Medical Consulting.  She has been providing nursing education and consulting services for 14 years.  Ms. Powell is a Registered Nurse and holds specialty certifications in Case Management, Legal Nurse Consulting, Life Care Planning and Ergonomic Assessments.

She wrote Frivolous Lawsuit: Not So Fast. Her insight and analysis of large jury verdicts in catastrophic cases are excellent and well taken.  If you've read my blog in the past, you know that I believe that there is no such thing as a frivolous lawsuit and that the phrase is a misnomer.  In fact, the idea of frivolous lawsuits are nothing more than a myth.  Read here, here and here.

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Here is Ms. Powell's article in its entirety (reprinted with her permission, of course):

I have enjoyed the legal environment for many years.  Since becoming a Legal Nurse Consultant, I have especially been intrigued with medically related cases.  I have come to understand that the media spin that surround medical cases does not always adequately reflect the issues of the case.

When the general public hears the millions of dollars that is sometimes awarded, they do not know what makes up the award.  As a Life Care Planner I can tell you that future medical is oftentimes in the millions of dollars for what on the surface might seem like a minor medical problem.  What you don’t see is the hours of assistance, medical devices used, and frequent follow up with medical providers to keep the patient moving and an active member of society.

The famous McDonald’s coffee case is one such example.  This was not a frivolous case.  It was just that the major findings were never made public by the media.  Since that case was settled some facts have been made known.  You can read about these in this article or in another by the Wall Street Journal.

My Twitter friend, Lowell Steiger, an attorney from Los Angeles, writes about another such case.  A Manhattan Jury awards $3.5 million to a young man who lost his leg when an MTA train ran over him while he lay on the tracks.  In a closer look, Steiger points out that the jury actually found fault with both parties and the award was decreased to $2.3 million.  You can read more about this case on his law blog.

As a Life Care Planner, $2.3 million for a below knee amputation, does not mean this young man has been hit by the gravy train.  Prosthesis are tens of thousands of dollars and require regular maintenance and replacement.  The skin problems due to wear and tear due to the prosthesis can be numerous and expensive to treat.  The medication regimen for an amputee with phantom limb pain results in hundreds of dollars in prescription costs each month.  Add to this the physician appointments and the associated mileage.  When you are finished with those calculations multiple those dollars by the many years of life expectancy for this young man and you should have close to $2 million plus in medical expenses.

The media does not always follow through on a case.  The reporters are often looking for a quick story and sensational headlines.  They do not have the advantage of this nurse, to enter the home of the injured and see how their life and the lives of those around them are affected.  Do not be too quick to judge based solely on the size of the award or the headlines you have read.

If you were injured and received a large award, how would you want the headlines to read?

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February 18, 2009

Manhattan Jury Awards $2.3 Million in MTA Leg Amputation Case: Frivolous Lawsuit? I think not...

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Dustin dibble The New York Post just published a story about a young guy who lost his leg just below the calf when an MTA Train ran over him while he lay on the tracks.  The public is outraged by this story because the 25 year old victim, Dustin Dibble, was drunk and fell onto the tracks. 

The outrage should not be directed at Dibble, however, because the ultimate cause of his injury arose when, per Dibble's attorney Andrew Smiley, "a subway-train operator is obligated to stop a subway train before it strikes a large object on the tracks, even if it is not known that the object is actually an intoxicated person."

The train operator, Michael Moore, was deposed and testified that "I saw what I thought was garbage on the track" and continued into the station.  He hit the emergency brakes when he saw the "garbage" move.  Too little, too late because NYC Transit rules mandate that the train operator is to stop the train if there's a mass on the tracks.  Moore failed to follow procedure and, in so doing, because the legal cause of Dibble's catastrophic injury.

I am blown away by the outrage expressed in the comments section of the New York Post article and the spin that the Post puts on it beginning with their title "Drunk Rides Gravy Train."  The comments range from calling the jurors stupid, the lawyer slimy, the judge being on the take and the like.  What people who were not on the jury don't realize is that there are legal thresholds that plaintiff Dibble must surpass in order to find the MTA liable.  Trial is not a circus.  It is a forum where both sides, while adhering to the rules of evidence, present their case and a jury of 12 people then decides whose story to believe.  In this case they found for both the plaintiff AND the defendant in that their actual damages award was $3.5 million but they found Dibble to be 35% at fault for his own injuries.  Therefore the total award to him was reduced by that percentage to a net of $2.3.

What worries me about this case is that the general public will see it as another frivolous lawsuit.   However, if they delve into the facts of the lawsuit, they will see that it is not frivolous and that, in fact, the frivolous lawsuit theory is nothing more than a myth.  See previous postings on the Myth of the Frivolous Lawsuit.  In particular, people may liken this to the McDonald's Hot Coffee case which is, again, NOT a frivolous lawsuit but one which had great merit.

Feel free to post your comments.

 
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February 14, 2009

Medicare Reimbursement in Personal Injury Cases

MedicareCard j.jpg The following is an article that was posted on my website, www.steigerlaw.com  As a preface to the article, it should be noted that your attorney has a statutory obligation to follow the rules as they apply to Medicare in relation to a personal injury matter.


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Medicare, established in 1965, is a federal health care plan for those 65 and older, in addition to certain persons under 65 (e.g., the disabled).  In the event a Medicare recipient is injured through the fault of another, he may have the right to recover from the person causing injury (or his insurance company).

Medicare
Medicare was initially the "primary payer" for medical services to beneficiaries, meaning that it paid first for medical costs, even where other sources existed.  However, high costs led Congress, beginning in 1980, to enact "Medicare Secondary Payer" (MSP) laws.  The MSP legislation sought to reduce Medicare costs by requiring beneficiaries to first exhaust other sources of payment before resorting to Medicare.

Medicare Payment for Treatment of Injuries
Federal law generally prohibits Medicare from paying for any item or service where payment can reasonably be expected from another "primary" source within 120 days.  Primary sources include the following:
  • Automobile insurance
  • Liability insurance (including self-insurance)
  • No fault insurance

When payment from another source is probable, yet not likely to occur within 120 days, the law allows "Conditional Medicare Payment" for medical costs.  Although Medicare providers are often required to question patients regarding possible alternative sources of payment, as a practical matter, the agencies that run Medicare have little way of knowing about such alternatives.  As a result, "conditional payment" is often made.

 
Medicare Reimbursement: Rights and Duties
The MSP system includes provisions for reimbursement and "subrogation."  In other words, Medicare succeeds to the rights of the injured party to sue the injuring party, or others, for recovery.  Further, the administration of enforcement efforts of Medicare reimbursement rights has been contracted out to HGS Administrators (HGSA).
 
Debate has taken place over the nature and extent of Medicare's right to recover.  Some commentators, for example, have called it a "super lien" against any settlement or judgment in a personal injury lawsuit.  Strictly speaking, the right to recover does not technically constitute a lien (i.e., not a right to recover from specific property or funds).  However, the MSP program grants extensive powers and specifies broad rights and duties related to reimbursement of "conditional payments."  These include, but are not limited to:   
  • A duty on the part of the beneficiary (and maybe her attorney) to notify HGSA of any lawsuit and pending or possible settlement or recovery.
  • The beneficiary (and maybe her attorney) has a statutory duty to reimburse Medicare for its "conditional payments" within 60 days of receipt of a "third party-payment" (e.g., a settlement or collection on a judgment).  If payment is not timely made, Medicare may begin charging interest.
  • HGSA and Medicare have the right to seek repayment (e.g., bring a collection action) from a wide range of individuals who receive payment, but fail to reimburse Medicare (including the injured party and her attorney).  Although it is not clear whether Medicare can proceed directly against the injured person's attorney after the money has been distributed, at least one court has affirmed this right.  In general, however, it appears that if the money has been distributed and spent, the injured person's future Social Security benefits will be used to reimburse Medicare.
  • As part of Medicare's right of action, it may recover double the amount of the conditional payments from an insurance company that is a "third-party payer" and "primarily liable" for the damages.  This is true even if payment has already been made to the injured party.  As a consequence, the insurance company may end up paying the injured person and Medicare (resulting in triple payment).  Furthermore, Medicare has the right to deduct the amount from Medicare payments owing to the third-party payer.
  • Medicare is deemed to have a "priority right of recovery;" i.e., it takes precedence even if state law or the third-party payer asserts otherwise.
Waiver or Compromise
Depending on the circumstances, Medicare may waive its right to reimbursement, though it is more likely to compromise the amount.  Under applicable regulations, Medicare will reduce its recovery to allow for the cost of procuring the settlement or judgment, including attorneys' fees.

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February 12, 2009

Attorney General Brown: Homeowners Should be on High Alert for Property Tax Scams

Scam
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Fantastic news!  If, like me, you have been receiving "We Can Reduce Your Property Taxes" ads in the mails and were almost seduced by their incredible promises, our great Attorney General Edmund G. Brown is trying to put a stop to it. Brown was NOT seduced by these scoundrels.  Read the press release below:

Press Release

Sacramento—Attorney General Edmund G. Brown Jr. today issued a Consumer Alert to California homeowners about a “blatant and costly scam” targeting homeowners with declining property values.

“This blatant and costly scam holds out hope to homeowners that their property taxes will be reduced if they pay hundreds of dollars to a middleman to have their property re-evaluated,” Attorney General Brown said. “In point of fact, homeowners can seek relief directly from their county assessor free of charge. Homeowners should be on high alert.”

Companies are sending deceptive mailers to homeowners offering help in reducing property tax assessments, if the homeowner pays the company hundreds of dollars in fees. The companies use official-sounding names such as “Tax Adjusters,” “Tax Readjustment” or “Tax Review” to make victims believe the company is a government agency.

Property tax reassessment is a free service provided by county tax assessors. If homeowners believe their property value has declined and they are paying too much in property taxes, the local tax assessor will review the property value for free for a possible downward assessment.

To avoid becoming a victim, homeowners should:
• Never pay money for something they did not ask for.
• Avoid a middleman—they should contact their local tax assessor’s office for property value reassessment.

Homeowners who believe they are a victim of this scam should contact the Attorney General’s Office by either calling 1-800-952-5225 or by writing to P.O. Box 944255 Sacramento, CA 94244.

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California Wage and Hour Violations - Does Your Boss Owe You Back Pay?

Boss_with_cigar_2



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Answers to Questions About Your Wage & Hour Rights

Do you wonder if you have a claim against your employer for failure to pay you proper wages?  The Law Offices of Lowell Steiger and the Law Offices of Steven Waisbren would like to provide answers to some of the more common questions, and we are happy to discuss your particular situation at your convenience.

Question -

What is the general rule about payment of overtime wages?

Answer -

Under California law, a “nonexempt” employee 18 years of age or older shall not be employed more than eight hours in any workday, or more than 40 hours in any workweek unless he or she receives 1½ times his or her regular rate of pay for all hours worked over eight hours in any workday, over 40 hours in the workweek, or more than six days in any workweek.

An employee is entitled to double his or her regular rate of pay if he or she works in excess of 12 hours in any workday, and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek.

Question -

What is an exempt employee?

Answer -

An exempt employee is one to which the overtime wage protections under the California Labor Code do not apply.  If an employee is truly exempt, they are not entitled to overtime wages, regardless of the number of hours he or she works.

Question -

How do I know if I am an exempt or nonexempt employee?

Answer -

There are a number of exemptions which exist, and may apply to your particular situation.  For the most part, these would include the administrative exemption, executive exemption, and the professional exemption.  Generally, the existence of these exemptions depends upon numerous factors, including the amount of independent judgment and discretion given to the employee on significant matters, the extent of supervisory or managerial duties the employee performs, and, most importantly, whether the employee performs exempt duties more than 50% of the time.  Of course, there are a number of other considerations which must be analyzed.

A determination of your exemption classification should be made only after consultation with an attorney since there are many reasons that an employee may be nonexempt under the law .

Question -

What if my employer has classified me as an exempt employee?  Am I bound by that classification?

Answer -

Absolutely not!!  Many employers will misclassify employees either mistakenly, or in an effort to avoid paying the employee overtime wages to which he or she is entitled.  Don’t assume that your classification is correct.  You may be entitled to many years of back wages, interest, and other damages.

Question -

Can I be fired for making a claim for overtime wages?

Answer -

No.  California law specifically prohibits an employer from doing so.


Interesting Facts About Wage & Hour Claims


·     An employer is obligated to pay you overtime even if the overtime hours were not authorized. The employer can discipline you for working unauthorized overtime hours, but the employer must still pay overtime wages for those hours.

·     Discretionary bonuses or monies paid as gifts on holidays are generally not included for purposes of determining the employee’s regular rate of pay.  Therefore, such bonuses are not computed in the calculation of overtime wages.

·     Even if an employee is paid a salary, they are still entitled to overtime wages as long as they are not exempt (See discussion in Q & A section).

·     As long as overtime wages are paid, an employer may require an employee to work overtime hours.  The  employee may be disciplined for refusing to do so.

·          Any agreement signed by an employee to waive entitlement to overtime wages is not enforceable.  The employer is still obligated to pay overtime.

·          The burden of proving that an employee is “exempt” is on the employer.  The worker is always presumed to be entitled to overtime compensation.


The Law Offices of Lowell Steiger Has Expanded Its Practice 

to Represent You for Your Wage and Hour Claims


    The Law Offices of Lowell Steiger, working in association with the Law Offices of Steven Waisbren, is happy to provide you with a free consultation, including a full analysis of your entitlement to overtime wages, minimum wages, and other back pay and damages.  Give us a call, and we will set up an appointment for you to meet with one of our qualified and experienced attorneys.

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If you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send an e-mail to me at lowell@steigerlaw.com

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