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Click here for the full text of this decision FACTS:This is an appeal from a jury verdict in favor of appellant/plaintiff, Jesus M. Cortez. Plaintiff sued Altman Nursing Inc.; Jerry Tristan; HCCI-San Antonio Inc. d/b/a Alta Vista Nursing Center (HCCI), and other entities for negligence, gross negligence, common law assault, violations of the Penal Code, and intentional infliction of emotional distress. A jury found Altman Nursing Inc., Tristan, and HCCI negligent; awarded $9 million in damages; and apportioned liability as follows: Altman Nursing Inc. 40 percent, Tristan 20 percent, and HCCI 40 percent. The jury also found Altman Nursing Inc. and Tristan liable for gross negligence, and HCCI liable for assault. Judgment was entered against HCCI and Tristan. A final judgment was also entered against Altman Nursing Inc. based on a high/low settlement agreement entered into with plaintiff before trial. HCCI tendered its share of the judgment, which plaintiff refused. Plaintiff appeals only the judgment against HCCI and Tristan. Plaintiff is the surviving heir of Carmen Puentes. Carmen was a 62-year-old woman who was admitted to the Alta Vista Nursing Center on Aug. 14, 1992. Tristan was an employee of the facility. Carmen fell in April 1995 while attempting to transfer herself from her commode to her wheelchair. Carmen sued on Aug. 31, 1995, but died on Feb. 18, 1996, while suit was pending. Altman Nursing Inc. owned the facility until Jan. 1, 1995, when it was purchased by HCCI. HOLDING:The court reverses the trial court’s judgment regarding plaintiff’s claim against Jerry Tristan for intentional infliction of emotional distress, and severs and remands that claim for further proceedings. The court affirms the remainder of the trial court’s judgment. Plaintiff contends the trial court should have discharged Snider as a matter of law because, as an insurance company claims adjustor, he prejudged the merits of the case. The record does not conclusively show that Snider’s feelings were so strong in favor of a party that he would base his verdict on those feelings and not on the evidence. Therefore, any bias or prejudice on his part was not established as a matter of law. The plaintiff asserts the trial court erred in excluding three Texas Department of Health and Human Services records. Plaintiff had the burden to show the trial court’s rulings prejudiced him. Plaintiff has not demonstrated how the trial court’s ruling harmed him in view of the jury’s finding that HCCI was negligent and committed assault, and its award of $9 million in his favor. No Texas court has addressed whether a claim for intentional infliction of emotional distress is a cause of action that is recoverable under the Texas Survival Statute. However, several federal courts, interpreting the Texas statute, have held that such a claim does not fall within the statute “because that tort does not injure health, reputation, or body.” Plumley v. Landmark Chevrolet Inc., 122 F.3d 308 (5th Cir. 1997). The court does not find Plumley persuasive. Texas courts recognize the recovery of mental anguish damages in an action under the Texas Survival Statute. Because a claim for mental anguish, which does not require proof of physical injury, is recoverable under the Survival Statute, this court is not prepared to hold that a claim for intentional infliction of emotional distress does not survive the claimant’s death. At trial, Rose Washington, a former health care worker, testified she began her employment at the facility in August 1994. For the first three months, she worked on the same floor and during the same shift as Tristan. Washington thought she first met Carmen sometime in November 1994. Washington testified she witnessed nothing “bad” for the first three or four months of her employment, but sometime in late November or mid-December she witnessed the following events. Washington saw Tristan flip or “slam dunk” Carmen into the bed, while Carmen tried to hold onto her chair. She described Carmen as scared of Tristan. She testified that Tristan removed Carmen’s call light from her bed or disconnected it from the wall; moved her food out of her reach; and moved a table on which her bedpan sat out of her reach. Reasonable minds could view this behavior as extreme and outrageous especially when directed toward an elderly and disabled woman who is cognizant enough to express fear. The evidence also sufficiently raises an issue of fact on whether Tristan intentionally or recklessly caused Carmen emotional distress and whether the resulting emotional distress was severe. The trial court erred in granting a directed verdict in Tristan’s favor. OPINION:Marion, J.; before L�pez, C.J., Marion and Speedlin, JJ. L�pez, C.J., dissents.

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