Weekly Docket
Dive into the world of law with 'Weekly Docket,' hosted by Silberman Law Firm's Phil Silberman. Get the latest on landmark cases, practical law, and a unique perspective on the legal landscape. Join us for a weekly exploration of law like you've never heard it before.
Weekly Docket
CrossFit Tragedy Highlights Liability Risks, Meta’s $1.4B Payout, Restraining Orders, Suing Doctors, and Uber’s Contractor Victory
Join Phil Silberman and Austin Black in Episode 31 of the ‘Weekly Docket’ as they discuss the tragic drowning of a CrossFit athlete during an event in Fort Worth, raising serious questions about liability and safety. Explore Meta's record-breaking $1.4 billion settlement with Texas over facial-recognition privacy violations. Get insights into how restraining orders and medical malpractice lawsuits are handled in Texas, and Phil and Austin bash California over the recent ruling that secures independent contractor status for Uber and Lyft drivers. Don’t miss this episode packed with legal insights, expert advice, and thought-provoking discussions!
Welcome to Silverman Law Firm's Weekly Docket, Episode 31, where we talk legal news and practical law. Today is August 15th, 2024, and I'm Phil Silverman, owner of the firm and your host. Austin Black is my co host, and he also works in our Dallas office. How are you doing today, Austin?
austin_4_08-15-2024_125708:I am doing great. How about yourself?
phil-silberman_4_08-15-2024_125707:I'm doing pretty well. I'm back in Texas, and I'm just blown away by the heat.
austin_4_08-15-2024_125708:Yes,
phil-silberman_4_08-15-2024_125707:always takes some getting used to.
austin_4_08-15-2024_125708:you're here to experience this now and not in your ivory castle of the cool weather. So
phil-silberman_4_08-15-2024_125707:my kids still go to school here, so I have to come back, but it is beautiful here in the wintertime. And, just these are the, these are our worst months of the year. what do we have on our docket today, Mr. Black?
austin_4_08-15-2024_125708:so first we're going to go for our legal news section as per usual. the, beginning story we're going to be talking about is how a CrossFit games athlete drowned during an event in Fort Worth, Texas. that may not sound like a legal situation, but we'll be talking about, potential lawsuits, involved in that. then we will be discussing Meta, or what Facebook became, settling a lawsuit from the state of Texas regarding facial recognition, software that was running automatically on Instagram. and this is something that's been going on for a long time, and they just reached a settlement for 1. 4 billion dollars now. Are you ever going to see that? We'll let you know. then the legal question section of our show today. First, we're going to be talking about. If Phil is coming outside of my apartment every day and banging on my door and I want him to go away, how is a restraining order handled? Okay, that's the first thing we're going to be talking about, legal questions, and then second, if my girlfriend, who is a doctor, does something very bad, how can you sue her? Okay, how do you sue doctors in Texas? We'll be talking about that finally, our rant and rave section, will be discussing how California, recently had a ruling that secured independent contractor status Lyft and Uber drivers. Now, is that good that it secures independent contractor status for them or do they want to be employees? We'll talk a little bit about that and let you know our Oh,
phil-silberman_4_08-15-2024_125707:I'm, in reference to the, your comment about me beating on your door and perhaps you need to get a TRO, if I were beating on your door, it would be to get you to bill more hours. I want you to, I want you to know that. that would be the, that'd be my old,
austin_4_08-15-2024_125708:think every judge would grant that TRO.
phil-silberman_4_08-15-2024_125707:how sympathetic judges are to the billable hour, requirement that attorneys are for profitability.
austin_4_08-15-2024_125708:probably not much. That's why they're judges. Right
phil-silberman_4_08-15-2024_125707:but we can't say any, let's not say anything bad against judges because we, judges. We love judges. all right, let's get started with our legal news section, which is this CrossFit games, thing. and so there was a CrossFit games, event going on in Fort Worth and tragic accident. In the middle of the event, there was a gentleman, I'm gonna mispronounce it, but Lazar, who, Duch, who was from Serbia. He's participating in this crossfit event. it included a 3 and a half mile run followed by an 800, meter swim. And in the middle of swimming, you could see that he was in trouble. And the other swimmers, I heard the other swimmers say, it looks like he's in distress and tragically he drowned in the middle of the event. So horrible thing that happened in Fort Worth up near where you are, Austin. So I don't know where they were swimming, but somewhere some lake or whatnot. And Yeah, he was the third. He was, he was pretty good at the sport. Third rank CrossFit athlete in Serbia, 88th rank worldwide. So this guy was, a legitimate athlete. he was a brother, he has a son. he was married, wife is, Dr. Anja Potovic his brother, posted on his Instagram story after the death, you love the sport that didn't love you back. No tribute will ever give you back to me. And the brother states, this is something that could have been prevented and there is no way of going around it. A little bit of a loaded kind of comment there. I think the brother seems to feel pretty strongly that the event, could have done something about this and we don't have all the facts on that. But, brother, obviously, heartfelt post there. with some implications that maybe the event had some liability. So Austin, anytime you do these events, and I don't know how many CrossFit events you participate in. but when you go do this event, you have to sign a waiver and the waiver says you assume of all this risk and, The person who passed away here, Luke Keducek, he obviously signed a waiver. Now, what are your kind of thoughts on that? If he signed this waiver with this assumption of risk, does, is the event clear of all liability, Austin? Do you have any kind of initial thoughts on that?
austin_4_08-15-2024_125708:No, not all liability. it wouldn't, it doesn't normally shield them from things like gross negligence. like instance, let's say one of the organizers was like, Driving a truck full of piranhas and that dumped in the lake, right? When they're swimming, that would be grossly negligent, right? And they let them swim. Then that would not shield them from any liability for that. But, normal things that are occurring, usually it would shield them from something like that. For instance, it just a more common situation when people get hurt, like combat sports. if in the course of the combat sport, you get hurt, just from normal things there, yeah, that's not going to be a problem. But if for some reason don't check a competitor or something, or they have a knife and they stab someone, that's obviously not the normal, situation in the combat score. And someone could be held liable for their gross negligence there.
phil-silberman_4_08-15-2024_125707:Okay. Okay. So you do taekwondo or jiu jitsu or something, Austin. Did you tell me that?
austin_4_08-15-2024_125708:I, I did a little bit of, TaeKwonDo, but that was not serious. I, fencing is the combat sport I did the most. And an example of a lack of an assumption of risk or gross negligence in fencing would be if a referee, someone employed by, say the Federation International Fencing sees that, one fencer has a broken blade. and they allow them to keep they tell them to go keep fencing. and someone gets stabbed. That's the only way that the blade can actually go through the protective fabric. is if it's broken at the top and it goes through someone's body, then that would be gross negligence because they saw that it was broken or they saw that it was bending in a wrong way and they allowed it to continue.
phil-silberman_4_08-15-2024_125707:Yeah. in this case, you know, he obviously signed a waiver. He was swimming. if he's just maybe in the water and has a sudden heart attack, or maybe during the running portion, he twists an ankle, that's something that through the waiver, you assume the risk, the state of Texas recognizes an assumption of risk doctrine right? It's like when you live on a golf course and you have balls going through your windows all the time. You're assuming the risk
austin_4_08-15-2024_125708:Yeah.
phil-silberman_4_08-15-2024_125707:of living on a golf course
austin_4_08-15-2024_125708:apologize to anyone who lives on any golf course on which I have golfed, because I guarantee you, you have known it.
phil-silberman_4_08-15-2024_125707:but there are certain standards and Austin's talking about gross negligence. I think an example that maybe hits home to more commonly to a lot of our viewers. if you're a parent out there, you take your kids to trampoline parks. If you take a kid to Trampoline Park, you sign a waiver doctrine, your kid goes in there, jumps, breaks an arm, that's likely not on the trampoline park, okay, you're assuming that risk, that kind of thing happens on trampolines, but you go in there, kid jumps, falls through a trampoline because the trampoline is faulty and no one inspected the trampoline. that waiver then no longer protects the trampoline park. So these are the things, the differences we're talking about. So Texas does recognize these waivers. We've represented a lot of small businesses that when we've drafted these types of waivers for trampoline parks, for amusement parks, for different kinds of, facilities, hunting, we do in Texas, we do a lot of hunting. If you got a bunch of guys coming on the property and they're doing hunting for a lease or something like that's a good type of waiver to have, or if you're offering your property up for Boy Scouts to go camp on it. you're going to want to have a waiver though. Those waivers do protect certain things. We do recognize the assumption of risk in Texas, but it's not a get out of jail free card for being negligent, for really doing something. So I think that's the crux here. We do have some cases, Smith v. Golden Triangle, again, Texas rule, recognizing gross negligence overrides a signed waiver. That was a racetrack deal. So the plaintiff was injured at a racetrack who signed a waiver. So you got Dixon v. Houston swim club. that's actually very relatable, appropriate to this case, because the CrossFit athlete died during swimming. You gotta have safety measures just because they signed a waiver doesn't mean they're gonna, they're gonna, be absolved of liability. So, if you're running these events, you have to be careful. And if you're in this type of business, CrossFit events, if you're race tracks, swimming pools, these are inherently risky activities. So you can't just have your people sign waivers and forget about it. You need to stay on top of your game, when it comes to this type of stuff. So anyway, super sad that there was a death, there in that event, that right in Fort Worth here in our home state, but, I do think there's going to be a lawsuit that arises out of that and we'll keep everyone updated as that lawsuit comes in. Likely. By, athlete's family, right? So let's move on to our next legal news piece, which we've got meta settling the Texas facial recognition case. So meta was sued by the state of Texas. They had collected, faith data that violates privacy laws. So on Facebook, presumably or Instagram there, all everyone takes photos, uploads photos, and met is using that data,
austin_4_08-15-2024_125708:and
phil-silberman_4_08-15-2024_125707:To cap.
austin_4_08-15-2024_125708:it was used specifically, for an auto tagging system, where they didn't actually tell you that this was what was happening, that they were pulling your facial recognition data and using it to like auto tag you in photos, whether or not you agreed to it or not, which is crazy. So
phil-silberman_4_08-15-2024_125707:Yeah. I think I was auto tagged.
austin_4_08-15-2024_125708:was
phil-silberman_4_08-15-2024_125707:You know,
austin_4_08-15-2024_125708:I had, I
phil-silberman_4_08-15-2024_125707:for, for me,
austin_4_08-15-2024_125708:tags. I was like, I, there's a reason I didn't tag myself in this photo, okay?
phil-silberman_4_08-15-2024_125707:is that so you, you were photographed doing something you should not have been doing and you didn't want to be
austin_4_08-15-2024_125708:doing something I should not have been doing, just a less than flattering photo of which there are many of me. and so I, I don't want that tagged. It's a pretty normal thing and Facebook's hey, let me tag that, you know.
phil-silberman_4_08-15-2024_125707:So it wasn't a photo of you doing anything scandalous. you just thought you looked a little fat or something like that.
austin_4_08-15-2024_125708:photos of me doing anything scandalous anywhere.
phil-silberman_4_08-15-2024_125707:Yeah. Let that be a lesson to all of our young people. if you want to keep, yourself hireable and be able to get future jobs or keep your current job. Like you, you don't want to photograph yourself doing anything crazy or video yourself doing anything crazy. So
austin_4_08-15-2024_125708:a good idea.
phil-silberman_4_08-15-2024_125707:I did not know this, but in Texas we have something called this Texas Biometric Identifier Law, and it's the Texas Capture or Use of Biometric Identifier Act, it's QB Act for short, enacted in 2001, prohibits companies from capturing or using biometric identifiers, including facial geometry. without informed consent from the individual. So this is, codified in the Texas business and commerce code section 503. 001B. And you have to get consent. So I guess Meta in this case, Facebook, Instagram did not get our consent when they started auto tagging us Austin.
austin_4_08-15-2024_125708:No, they did not.
phil-silberman_4_08-15-2024_125707:biggest lawsuit, MEDA agreed to pay 1. 4 billion. That's a billion with a B, to settle, over five years to settle that claim. Biggest settlement attained by any single state. it just really shows you how, everything's bigger in Texas. MEDA pretty good on that one. So, this kind of did get me. thinking about some of the crazy stuff that China does though. Have you, did you, are you familiar with all the facial recognition stuff that the communist party does over in China?
austin_4_08-15-2024_125708:am.
phil-silberman_4_08-15-2024_125707:I mean I saw some news articles on it. Basically anytime you're walking about China, you just assume that you're being, videoed. Oh,
austin_4_08-15-2024_125708:heavily at the moment because you're talking, it's not a bad thing. So if you're not doing anything bad, you have nothing to hide, right?
phil-silberman_4_08-15-2024_125707:is that what it is? Okay, I see. it. That's what the cop tells you, you don't have anything to worry about.
austin_4_08-15-2024_125708:don't
phil-silberman_4_08-15-2024_125707:If you didn't do anything wrong. Yeah, I'm not, I don't subscribe to that type of theory. The craziest thing that I saw come out of China is that they equipped Chinese police officers with these smart helmets, and it's a very futuristic thing. the Chinese have a smart helmet on and the Chinese police officers smart helmet on, and he's going around just in the general masses of China. And the helmet is like automatically feeding him data. I don't know if that, if the sensors are going to a central location or if he has. some kind of visor where he can read the data. But during COVID, for example, he'd have the smart helmet on and he was just taking people's readings,
austin_4_08-15-2024_125708:Yeah.
phil-silberman_4_08-15-2024_125707:readings. and they would also use, I guess if the guy was fighting crime or looking for somebody, he would just, if he saw somebody who was wanted or whatever, they would just get them and disappear them. that's how that works over there.
austin_4_08-15-2024_125708:Teyuan, I don't know if I'm pronouncing that correctly, but Teyuan, China the most surveilled city in the entire world, and has 117 cameras per 1, 000 inhabitants.
phil-silberman_4_08-15-2024_125707:117 cameras per 1000 inhabitants. that's like basically one camera for every 10 people.
austin_4_08-15-2024_125708:Yeah. More!
phil-silberman_4_08-15-2024_125707:you the speeding cameras is what drives me crazy. The, the French, I like France a lot. I like France a lot better than China. They tried to put speeding cameras up in France and. And the French took to the streets and blocked the streets and tore the cameras down.
austin_4_08-15-2024_125708:the French, if they're good at one thing, it's they're good at protesting.
phil-silberman_4_08-15-2024_125707:what Republic are they on now? Is it like the fifth or sixth Republic of France? I,
austin_4_08-15-2024_125708:pretty sure it's the fifth.
phil-silberman_4_08-15-2024_125707:it's something crazy.
austin_4_08-15-2024_125708:May 5th or 6th. Yeah.
phil-silberman_4_08-15-2024_125707:All right. Meta gets tagged pretty good billion dollars or whatever it is for all that facial recognition and stuff they did in Texas. But let's go on and answer some legal questions. Okay. So the first question we have is. How are restraining orders handled in Texas? So this was where Austin was talking about, people that are harassing them. have you ever been stopped or harassed before Austin? You have to think about it.
austin_4_08-15-2024_125708:I've been harassed before. it's a very uncomfortable situation with some woman making like in her late fifties, making very uncomfortable advances and like attempting to touch me on a public bus in Austin.
phil-silberman_4_08-15-2024_125707:Really?
austin_4_08-15-2024_125708:yeah, it was one of the most uncomfortable experiences of my life. So I can't even imagine what like women who deal with that stuff so much more
phil-silberman_4_08-15-2024_125707:What was she an attractive 50 year old lady?
austin_4_08-15-2024_125708:No. And I wouldn't have cared if she was. It was violating. She like, I moved my seat. And she got up and followed me. And sat next to me again. And I got off the bus at the bus stop. no one did anything about it. They all saw. I got off the bus and walked two miles home.
phil-silberman_4_08-15-2024_125707:How old were you? This was recently?
austin_4_08-15-2024_125708:Oh, no, this is when I was in law school.
phil-silberman_4_08-15-2024_125707:Oh, you're in law school. Okay.
austin_4_08-15-2024_125708:I
phil-silberman_4_08-15-2024_125707:I'm a little more sympathetic if you're in law school,
austin_4_08-15-2024_125708:it's inappropriate for anyone I like that stuff like people look at That's sort of a thing when it happens to a male and they treat it differently than when it happens to a woman It's just not it's just not like it happens less often than men and people ask things like what you said I know it was jokingly right was she attractive? But it's not okay either way, right? And it felt very bad at the time, and for no one to even do anything about it. Who saw that happening was crazy. But,
phil-silberman_4_08-15-2024_125707:I do agree with you that it's wrong either way, but you're not going to get a lot of sympathy, I think, as a man
austin_4_08-15-2024_125708:don't.
phil-silberman_4_08-15-2024_125707:in that case, I'm afraid,
austin_4_08-15-2024_125708:Yeah.
phil-silberman_4_08-15-2024_125707:It'd be an interesting question if our listeners are more sympathetic about it or not, but I think you handled it appropriately. And, I guess you got some exercise in the two mile walk as
austin_4_08-15-2024_125708:she had followed me home, what could I have done? That's what we're talking about now, right? A restraining order, it's a legal document that's issued by a court. protect an individual from being harmed, harassed, or threatened by another person. it can impose legal restrictions on the behavior of the person against whom it's issued to ensure the safety of the protected individual or individuals. So, yeah, the three different types of them, there's a protective order, which is usually used for family violence, stalking, or sexual assault. So that's probably the one you hear about the most. a TRO or temporary restraining order. Is used in civil disputes, and that should be used solely to maintain the status quo. and you need to show a court that you're likely to succeed on the merits of the case at the end in order to get that TRO granted. and then there's also stalking slash cyber stalking orders, which are a more recent development.
phil-silberman_4_08-15-2024_125707:Now the type of restraining order that you hear about in the media all the time is the one where they're being stalked or it's a family member, right? Those are the more Now the ones we deal with as civil lawyers are typically arise out of a lawsuit where people are fighting over money. So if you haven't, have you done any TRO hearings before or not yet?
austin_4_08-15-2024_125708:and gotten them granted. Yep.
phil-silberman_4_08-15-2024_125707:So the way that works in Texas is you have to, let's say you've got some irreparable harm that's being done to you or your business, okay? So the idea generally, you typically see them at non compete agreements. If you're an employer and you had an employee sign a non compete, and that non compete is being violated and that employee is working. The employer will often file a petition for breach of the non complete agreement and that petition will have an application for a TRO, Temporary Restraining Order, and you go down to the court after filing the petition. And you typically get, a judge who's not necessarily assigned to your case. Ultimately, he's just the judge that's assigned to hearing the TROs for the day. And you have to show that, there's irreparable harm being done to get that TRO. And typically, you have to show that money's not enough. Because if you just have a breach of contract claim, and you can solve it with money. If you win, you're going to get money. That's not the type of thing that's going to be available by restraining order.
austin_4_08-15-2024_125708:Yes.
phil-silberman_4_08-15-2024_125707:So, and it usually is an ex parte hearing, which Austin tell our listeners what ex parte is and what that means,
austin_4_08-15-2024_125708:it's a hearing with just one party, not the other party. and that's so that's for the temporary restraining order. when, if, and when a temporary restraining order is granted and sometimes judges grant temporary restraining orders, usually those are as emergency. order the emergency temporary restraining orders. Those will sometimes be granted even without a hearing. if you can show enough, in the petition for it that the judge believes that it's warranted, but whether an emergency or a temporary restraining order is granted, will then be set a hearing for a permanent. Oh, permanent restraining order or, or an injunction, or temporary injunction, something like that. the hearing for the temporary injunction, usually you're asking the judge to put in place similar restrictions to the temporary measures that was already in place until the point of the trial, at which time you would ask for a permanent injunction if you needed one. but. In cases where there are restraining orders like this, I. hearing, the Temporary Injunction Hearing, to determine if an injunction is going to be in place until trial, is usually where the cases won or lost. Because at that time, you're presenting everything you have, and the judge is going to make their decision on whether they believe that you're likely to succeed on the merits. And usually, whether someone wins or loses at that point, is when people start trying to settle.
phil-silberman_4_08-15-2024_125707:Yeah, so you get, to summarize that you have, you file your petition, you go down to the court, you tell the judge, Hey, this is urgent. I'm going to be harmed. Grant this restraining order. Let's just say it's non compete. Keep the employee from working. If the judge grants it, and by the way, typically you got to post a bond, but if the judge grants it, then about three weeks later, you're going to have the TI, the temporary injunction, and then you have a little mini trial. And if the grant, if the judge grants it again, then that's going to stay in place until it's resolved on the merits. That's how that works. that's the type of restraining orders we deal with in the civil courtroom. Those other types of restraining orders where you're in a family law court or some other type of court for criminal matters. That's that's different, but those are the type of restraining orders. Those are the most common types In Texas. that's all about restraining orders. And our next legal question is just generally about suing doctrine.
austin_4_08-15-2024_125708:Yeah,
phil-silberman_4_08-15-2024_125707:Now, Austin, we don't,
austin_4_08-15-2024_125708:ourselves from going further on the topic of restraining orders.
phil-silberman_4_08-15-2024_125707:we are, but we don't sue.
austin_4_08-15-2024_125708:ourselves when it comes to suing doctors. Yes,
phil-silberman_4_08-15-2024_125707:Yeah, but we don't really know a lot about suing doctors because we don't do it.
austin_4_08-15-2024_125708:we don't do
phil-silberman_4_08-15-2024_125707:But we're going to talk, we're going to talk about it because we get a lot of calls and it's just the general public want it, wants to know
austin_4_08-15-2024_125708:Yeah.
phil-silberman_4_08-15-2024_125707:it's interesting. if you have a doctor, you think you were misdiagnosed, you think the doctor didn't provide the right standard of care, you can sue the doctor for medical malpractice. It all arises out of a negligence suit. Anytime you're suing professionals, it's going to be negligence based. So if you sue an attorney, the idea is the doctor breached the standard of care, they did something that, you know, or no, no other reasonable or competent doctor or lawyer would have done, and we've talked about negligence on this show a lot, but real quickly, Austin, give us the elements of negligence, one more time.
austin_4_08-15-2024_125708:negligence, you need to have a duty of care to someone. you need to breach that duty of care. and then that needs to cause damages to the person.
phil-silberman_4_08-15-2024_125707:Now, suing doctors used to be really big business. Okay. They were entire plaintiff's law firms dedicated to medical malpractice in Texas. There wasn't, and at the bit, because there was a lot of, it's not like the defense attorneys, the guys who were defending doctors, it's not like they exactly hated the plaintiff's lawyers because the plaintiff's lawyers were keeping them in business on the billable hours. you had these gigantic sections of big law firms that were dedicated to defending malpractice lawsuits. And then along came tort reform in 2003, but it's the Tort Reform Act, House Bill 4, and it placed a cap on non economic damages. And that was a big deal because The, you can now only get 250, 000 in punitives, right? So why is that a big deal? is 250 grand, if a doctor, does something wrong, Austin is, does 250 grand seem like plenty of money to punish the doctor,
austin_4_08-15-2024_125708:no, it doesn't. Considering the starting salaries for a lot of doctors is around 300 K. No, it doesn't sound like that.
phil-silberman_4_08-15-2024_125707:all right. When you, so you're anti tort reform. You think that, you ought to be able to pop a doctor for a big number.
austin_4_08-15-2024_125708:see the public policy concerns. on like prevent, because if they could be hit with high, damages for a medical malpractice claim, then there's a possibility they wouldn't do or attempt procedures that would otherwise be the best for attempting to help the patient. so I see both sides. And pain and suffering damages are also bit sketchy to me sometimes. but I think like in situations where it is medical malpractice, like those are the most appropriate pain and suffering ones. Not situations where someone is suing their HOA, and they call me and they say they want pain and suffering for the mental anguish that dealing with their HOA has given them. I'm sorry, that's usually not going to fly,
phil-silberman_4_08-15-2024_125707:Yeah, there was a lot to this tort reform stuff. it included the cap on, non economic damages. It included some prerequisites to filing a lawsuit. You now have to have basically a report or an opinion from a professional from us and someone in that field prior to filing the lawsuit. That's a condition proceeding to the suit. And if you don't get that report, you're automatically tossed out. So there was some.
austin_4_08-15-2024_125708:only are you automatically tossed out, right? You,
phil-silberman_4_08-15-2024_125707:Yeah,
austin_4_08-15-2024_125708:already filed it, right? And you haven't, and you don't submit that report within a certain amount of days, then you not only have your lawsuit tossed out, but all costs and the doctor's attorney's fees are assessed against you.
phil-silberman_4_08-15-2024_125707:right. and it's tossed out with, yeah, tossed out with prejudice too. You don't get,
austin_4_08-15-2024_125708:bring the claim anymore. Yes.
phil-silberman_4_08-15-2024_125707:so tort reform is pretty significant in Texas. and the cost of malpractice insurance, I don't know what the exact number was, but it was crazy. It was like, if a doctor was paying 30 grand a year for malpractice insurance after tort reform, that number went down to five grand. and the real problem economically is if you're a patient and you had a doctor misdiagnose here, you had a doctor, not do the right thing or commit medical malpractice. the real problem is the cost of working up that case against the doctor, because you have to have experts. You have to have another doctor testify that the doctor deviated from. care is expensive. So you're going to spend at least 50 to 100 grand to work up that case. So if you're looking at a cap of 250 grand on non economic damages, that's tough. Now, what, what cases still work? it may, if you're a doctor and you're listening to the show, you really only want to provide services to poor people that are not high income earners, right? Because if you mess up something on a high income earner, right? Then that's an economic damage. if you're doing hand surgery on the world's most famous violinist or pianist that gets paid millions of dollars for concerts and you mess up their hands, those are economic damages. So you're, those are not capped at 250. You follow me, Austin?
austin_4_08-15-2024_125708:I do.
phil-silberman_4_08-15-2024_125707:So you want, if you're a doctor, you want to operate or provide care to people that are not high incomers. That's really, I think the take home from this.
austin_4_08-15-2024_125708:So in other words, go work at Parkland hospital.
phil-silberman_4_08-15-2024_125707:Is this the hospital where JFK was cared for? Okay, this has come up in the show before. Yeah, I don't know how much money you make working at Parkland or some of these poor hospitals. But, and obviously I'm joking, right? You can't, as a doctor, you can't.
austin_4_08-15-2024_125708:a year.
phil-silberman_4_08-15-2024_125707:I don't believe that.
austin_4_08-15-2024_125708:yes. Yes. Yes. As a resident, you do. Yes.
phil-silberman_4_08-15-2024_125707:but, that's tort reform in Texas. It really eliminated entire defense departments or defense sections at these big firms just went belly up overnight. If you're looking to find a lawyer to sue for medical malpractice, it's much, much more difficult. We don't do that. Please don't call us. Sometimes we do probate work for attorneys that are doing medical malpractice lawsuits, but it's hard to find a medical malpractice lawyer now. because there's a lot less lawsuits against doctors. There's also a lot less attorneys defending those types of lawsuits. So limitations periods. How long do you have to sue a doctor? Two years negligence is a tour is two years statute limitations. that's, Not very lucrative to sue doctors anymore. Plaintiff's attorneys had to get on to something else. And what did they jump on to? Austin, after tort reform, they all, we talked about this in previous shows as well. They all jumped on to the FLSA, the Fair Labor Standards Act. A lot of plaintiffs. And that brings us, to our ranch and rave section. which is my favorite part of the show, but we're talking about the state of California got a ruling that basically said all those Uber drivers out there, all those Lyft drivers, you are solidly and squarely independent contractors. Now, you probably never thought about whether you're Uber or Lyft driver as an independent contractor.
austin_4_08-15-2024_125708:actually I have thought very much about this and you want to know why I thought a lot about this
phil-silberman_4_08-15-2024_125707:Why,
austin_4_08-15-2024_125708:because your first year of law school, you have a legal writing class, and you typically, for that class, you typically have, a final, draft you need to produce of, a petition or an argument or a motion for summary judgment, some sort of, thing, legal filing, and the problem that mine was over that I was writing a brief on, was, independent contractors and for a like Lyft or Uber service. So I've actually done a lot of research on this in Texas. So yeah,
phil-silberman_4_08-15-2024_125707:okay, so you're familiar with the concepts of misclassification.
austin_4_08-15-2024_125708:am sure. Yeah,
phil-silberman_4_08-15-2024_125707:it's a misclassification deal under the FLSA. Now, the California angle on this, and by misclassified before I move on by misclassification, Generally, the idea is if you're a plaintiff's attorney, you find an Uber driver, you form a collective action, you sue Uber for violations of the FLSA saying that they were misclassified, and because they were misclassified, they worked overtime, and they weren't paid a minimum wage or whatever, and you sue them under this statute called the Fair Labor Standards Act. There's also Consequences. the federal government and the local government, state government, they benefit from, these drivers being classified as employees because they get to collect, the employment taxes on'em. So that's typically why the government generally wants these people, classified as independent contractors. The government will say, oh, we, we want'em to be safe. We want fair working conditions and all that. I think what they really want is more tax. this is the special kind of crazy, though, that really upsets me about the state of California. the Uber and Lyft drivers started a petition to get Proposition 22 on the ballot. And 22 basically said, we, the people of California want to vote on whether or not our Uber and Lyft drivers specifically can be contractors. And it went up to a vote and the people decided that we want Uber and Lyft drivers, should be classified as independent contractors. And that's it. We don't care. They want to be independent contractors. We want them to be independent contractors. This is how crazy the state of California is. The state of California said. Screw the people of California. We're going to challenge the constitutionality or the validity of Proposition 22 that the will of the people voted on, and we're going to take that to the California Supreme Court, and we're going to see if we can just undo that, the will of the vote,
austin_4_08-15-2024_125708:yeah. And
phil-silberman_4_08-15-2024_125707:that's what's crazy.
austin_4_08-15-2024_125708:whatever, labor unions do stupid stuff like that all the time. But the fact that the state was involved in this and spending taxpayer money on bringing this challenge that the taxpayers had already voted for is insane.
phil-silberman_4_08-15-2024_125707:Yeah, the crazy Republic of California, so goes up to the California Supreme Court, California Supreme Court, affirms the ballot says no, 22 passes. Nothing unconstitutional about it. And, there you have it. you can now be an independent contractor, Uber and Lyft driver, a DoorDash driver, DoorDash and Uber and Lyft are touting it as a huge victory. And by the way, the companies are not innocent in this either. Because the companies are saying, Oh, we, we respect the fact that an Uber driver may only want to work a couple hours and, we want them to be flexible, look, don't go believing that, these companies are, have totally altruistic value systems either, because. They really just don't want to pay the taxes either in my opinion.
austin_4_08-15-2024_125708:absolutely.
phil-silberman_4_08-15-2024_125707:They don't, they want to avoid the state and federal employment taxes. So it's not like those guys are innocent either. I'm a big free market guy. I think if you're an Uber driver and you want to be an Uber driver, I've heard that driving Ubers is pretty much no better than 10, 15 bucks an hour. I don't know if that's true or not. I've heard of it's, it can get even worse when you factor in gas and depreciation on your car. And then I've heard that a lot of people driving for DoorDash actually lose money, they just don't realize it. I don't know if that's true or not, but that brings our show to a close. I've been your host, Phil Silberman. Austin Black has been my cohost. Like us, follow us wherever you get your podcasts. As a reminder, nothing in this show is to be considered legal advice, and this has all been for entertainment purposes only. If you have a legal question, email us at info at sylblawfirm. com, info at sylblawfirm. com. Tell us you want us to answer it publicly in the podcast, we will do our best.
austin_4_08-15-2024_125708:And we have never had that request once in the history of doing this show. This is the 31st episode, and we have not once had someone email us saying they wanted a question answered in the show. Now, do I think it's because none of you have questions? No. I think it's because all of you are embarrassed about your legal questions. Don't be embarrassed. Send the question. We'd be happy to answer it. We will answer it and not name who asked it, okay?
phil-silberman_4_08-15-2024_125707:what they do, though, is they, we get hundreds, if not thousands of questions on the social media platforms. So like they go like on YouTube or whatever. And they, and when we do the shorts, they ask the question, but
austin_4_08-15-2024_125708:or they tell us what they think the answer is, right?
phil-silberman_4_08-15-2024_125707:yes. That works there. That works too. All right, everybody have a great rest of your week.
