Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Maria Belia Penalver was admitted to Silver Creek Manor nursing home in 1997 because she needed 24-hour care and the family could no longer care for her. In September 2000, Christina Bartek, a certified nurse’s aide, attempted, without assistance, to transfer Penalver from her wheelchair to her bed and accidentally dropped her. Penalver suffered severe injuries and died the next day. The independent executor of Penalver’s estate and Penalver’s two sons, Augustine and Ramon, filed a wrongful death and survival suit. Augustine and Ramon filed a wrongful death and survival suit against three defendants, Living Centers of Texas Inc. d/b/a Silver Creek Nursing Home; Silver Creek’s administrator, Cyndi Brown; and Silver Creek’s director of nursing, Kim Bordovsky. The initial jury trial resulted in a verdict in favor of the plaintiffs on their negligence claim. All parties appealed the judgment and the court of appeals court reversed and remanded for a new trial. Before the second trial on remand, Living Centers, Brown and Bordovsky stipulated “to their joint and several liability for negligence proximately causing the death of Maria Belia Penalver,” and the case went to trial on the amount of compensatory damages. The trial court signed a judgment in accordance with the verdict, awarding the estate $510,000 and Augustine and Ramon each $300,000. In this appeal, Living Centers contends the plaintiffs’ attorney made an improper and incurable jury argument that requires reversal; the damage awards are not supported by legally or factually sufficient evidence; and without regard to the sufficiency of the evidence, the damage awards are so excessive they clearly resulted from passion and prejudice. Living Centers asserts the trial court abused its discretion in denying defendants’ motion for new trial on the ground that plaintiffs’ counsel made an improper and incurable jury argument. The challenged closing argument referenced the T-4 Project of World War II, in part, as follows: “[Their] defense is that this death is not significant because she is old and because she is impaired. I disagree. Our society has not regressed to the point that we tolerate a wrongful death of anybody, of any age, or of any infirmity. ” . . . In World War II, the Germans had a project called T-Four. You probably heard about it in history books. But what they did is they took all the people who they thought were inferior in society, primarily older people, impaired people, and they used them for experiments. They killed them. Over 400,000. That culture 60 years ago didn’t consider the impaired and elderly valuable. “Our culture has never looked at that. We went to war to stop that, the biggest war in the history of the world to stop those atrocities that were going on. And we’re not at the point where we’re tolerant today, as the defense would like you to be, of this wrongful death.” Living Centers asserted that because the argument is “extremely inflammatory and intentionally crafted by Plaintiffs’ counsel to play on the jury’s prejudices,” it is incurable and necessarily harmful, requiring reversal of the trial court’s judgment. HOLDING:Affirmed. The court dismissed defendants’ point of error that plaintiffs overstepped by referencing the T-4 Project. “Not only did Living Centers not object to the plaintiffs’ argument at trial, its own actions exacerbated any error. Living Centers took the plaintiffs’ single reference to a relatively unknown event in history, i.e., the T-4 experiments, and expanded it with multiple references to the universally known term”Nazi.’ Living Centers further transformed an indirect reference to a time period in history into an explicit reference to a racist group or view. “Viewed in the context of the entire record, we do not believe plaintiffs’ closing argument, which referenced Germany’s T-4 Project during World War II, constituted incurable error. Furthermore, Living Centers had the opportunity to object and request a curative instruction outside the jury’s presence and failed to do so. Instead, Living Centers worsened any prejudice flowing from the argument by its own closing comments. Accordingly, Living Centers’ complaints regarding plaintiffs’ jury argument are overruled.” The court further concluded that the evidence was legally and factually sufficient to support the damage awards to Augustine and Ramon for past and future loss of companionship and society and mental anguish, and held the awards were not excessive. OPINION:Speedlin, J.; Speedlin and Simmons, J.J. DISSENT:Duncan, J. “To even suggest that the facts in this medical negligence case warrant any mention of Hitler’s program to experiment with and ultimately murder institutionalized and impaired individuals is not simply ludicrous; it is deeply offensive because it cheapens the horror of the T-4 Euthanasia Program and, most importantly in this context, constitutes error”calculated to arouse the deepest prejudice on the part of the jury.’ . . . . To label such an inflammatory argument”curable’ is, at best,”naive.’”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.