New economic damages legal research

Proving and Defending Damage Claims: A Fifty-State Guide
by The Honorable James J. Brown, Wendy FleishmanList Price: $210.00ISBN: 0735562687ISBN-13:

Description (from book website)
Today, the standards for assessing the different types of damages vary greatly from state to state. Tort reform nationally has had a significant impact on tort damages. In addition, many states have codified the law concerning claims for damages arising from medical malpractice, consumer rights, wrongful death, and products liability.

Proving and Defending Damage Claims: A Fifty-State Guide is the one reference that will help you accurately assess and pursue damages-- from drafting or defending a complaint to arguing damages at trial.

Fifty-state surveys that provide quick and reliable answers to questions about recoverable damages. Analysis to help you calculate recoverable damages for particular causes of action.
Reliable insights into the framework of punitive damages, including their availability and limitations.
And much more.

Faulty OT comp scheme causes firefighters to sue

FLSA requires overtime payment to non-exempt workers including firefighters. However, the threshold for determining when overtime should be paid is different for different types of jobs. Specifically, Section 207(k) of FLSA requires that firefighters and certain law enforcement employees meet a higher threshold than 40 hours a week before the employer has to pay overtime.

City governments that have been making OT payments, but in the wrong amounts, are finding that not abiding by the 207k exemption can be costly. In some instances, incorrect OT payments actually serve to increase the city's liability.

For instance, one mid-western city agreed to pay its firefighters OT (1.5x) for all hours worked over 155 hours in a 21 day period. The union agreed OT compensation scheme comported with the Section 207k exemption.

However, instead of actually calculating the OT payment for each and every firefighter, the city paid a blanket 5.5 hours premium to every firefighter regardless of the number of hours worked. Clearly for some firefighters, the city has underpaid the amount of OT.

In fact it is argued, that in those instances where the firefighter has worked more than 155 hours, the city, according to section 207k, has not actually paid any overtime at all to those workers. In these types of cases, it is argued that not only should the OT payment not be an offset in the damages calculation, but it should actually be included in the calculation of the indiviudal's base pay. In these instances, the payment of the OT premium, since it is not legally an overtime premium payment, actually serves to increase the city's liability.

New collateral source rule research

"The Collateral Source Rule and Medicaid Plaintiffs: Eliminating Windfalls and Double Recovery"Thomas Jefferson Law Review, Vol. 30, 2007Contact: REBECCA F. ANDERSON Independent

http://ssrn.com/author=781664FullText:http://ssrn.com/abstract=974966

ABSTRACT: This Note examines damages awards for past medical expenses ofMedicaid plaintiffs and the collateral source rule's role in determiningthose damages. The traditional collateral source rule's substantivecomponent prohibits any reduction in the plaintiff's recovery for benefitsor payments the plaintiff receives from collateral sources, i.e. any sourceother than the defendant. The rules evidentiary component excludes admissionof any evidence of collateral sources. Two primary criticisms of the rule are: (1) windfalls to Medicaid plaintiffs when they recover more than Medicaid paid on their behalf, and (2) double recovery by Medicaid.

Resolving the difficulties of the rule requires a two-step solution. First, states should adopt a "real reasonable value"approach to the collateral source rule by allowing the parties to introduce evidence of the amounts billed for the services,amounts paid by Medicaid to satisfy the obligation, and evidence of automatic reimbursement to Medicaid.

Secondly, states should adopt two requirements in the handling of medicalexpenses for Medicaid plaintiffs: notify the state Medicaid agency when the plaintiff files suit against a defendant involving medical expenses paid by Medicaid and if the plaintiff recovers for medical expenses, the state Medicaid agency should automatically be reimbursed the amount they paid on plaintiff behalf after a pro rata reduction for their share of legal costs....

New forensic economics blog...welcome!

Ralph Fresco, and economist in Dayton, OH, has a wonderful new blog, titled 'The Forensic Economist' @

http://forensiceconomist.blogspot.com/

from his site:

'This blog is mainly concerned with topics of interest to forensic economists. This would include posts on the evaluation of damages in litigation. Of primary interest are economic issues related to litigation in personal injury and wrongful death suits. However, economic issues that involve other types of litigation may also be discussed.'

Welcome!

Medical expenses - billed or amount recieved by the provider

When totaling medical expenses in an injury case, is the amount billed or the amount accepted by the provider as payment in full the relevant number?

(thanks to the popular forensic economist bulletin board for this posting idea...)

While most of the legal opinions out there say the billed amount is correct, there is at least one state court case allowing testimony for the amount accepted.

In at least on instance in Federal District Court case the trial court judge, allowed the defense to present testimony about the amount the defendant (the government) would pay through its various health insurance programs and how much the plaintiff would actually pay as copay. The defense's reasoning was that the US was ultimately paying for everything, assuming the plaintiff won the case and received all his expected copays.

As such, the defense reasoned it was not collateral source as it didn’t come from some third party. Since, under the defenses theory, it was not a collateral source, the amount paid by the defendant could be considered as an offset in th damages calculation. In the trial, the court allowed the US to bring in a claims adjuster from Medicare and from Tricare to explain just how much they would pay and which procedures would be covered. They allowed me to use those estimates in determining the loss.