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Click here for the full text of this decision FACTS:Living Centers of Texas Inc., defendant in a wrongful death suit, stipulated liability. “During final argument of the trial on damages, plaintiff’s counsel compared Living Centers’ lawyer’s attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed.” Concluding that the jury argument was improper and incurable, the Texas Supreme Court reversed and remanded the case for a new trial. Belia Penalver moved into a nursing home in 1997. In September 2000, a nursing home employee dropped Belia, who was then 90 years old, while transferring her from a wheelchair to a bed. She died the next day from injuries suffered in the incident. Belia’s sons sued Living Centers of Texas Inc., its administrator and its director of nursing (collectively, Living Centers) seeking wrongful death and survivor damages. A first jury trial resulted in judgment in favor of the Penalvers for $356,000 actual and $362,000 punitive damages, reduced from $500,000 when the trial court applied the statutory cap on punitive damages. The 4th Court of Appeals reversed and remanded for a new trial because of improperly admitted evidence of previous falls at the nursing home. Before the second trial, Living Centers stipulated that its negligence proximately caused Belia’s injuries and death, so the only issue at trial was the amount of damages. During closing argument at the second trial, the Penalvers’ counsel referred to Germany’s World War II T-4 Project and defense counsel’s trial conduct: “In World War II the Germans had a project called T-Four. You probably read 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. . . . “But [the defense lawyers'] job here is to convince you that the damages are insignificant to minimize the damages. How have they done that? At the very beginning in opening statement [they] said they only have two defenses, if you want to call it defense. She is old and she is impaired. . . . “So it really goes back to that, the initial issue, where are we as a society? Have we regressed to 1944, 1945 Germany? Have we regressed or gone ahead so far now, 60 years later now, we have a different attitude, that a wrongful death of an elderly or impaired person is not every bit as significant and has every bit as significant damages as the wrongful death of anyone else?” Living Center’s counsel did not object to the argument but attempted to counter it by arguing that “there are no Nazis in this courtroom” and “I’ve never been accused of being a Nazi before.” The jury awarded almost three times the actual damages awarded in the first trial. The second jury awarded actual damages of $510,000 to Belia’s estate and $300,000 to each of her two sons a total of $1,110,000. Living Centers filed a motion for new trial based, in part, on allegations that the Penalvers’ jury argument as to the T-4 Project was improper, incurable and harmful. The trial court denied the motion for new trial. Living Centers appealed. The 4th Court of Appeals affirmed, with one justice dissenting. In its petition for review, Living Centers continued to complain of the final jury argument that criticized Living Centers’ counsel and referenced Germany’s World War II T-4 Project. HOLDING:Reversed and remanded. Jury argument, the court stated, that strikes at the appearance of and the actual impartiality, equality and fairness of justice rendered by courts is incurably harmful not only because of its harm to the litigants involved, but also because of its capacity to damage the judicial system. Such argument is not subject to the general harmless-error analysis. The T-4 Project argument, the court stated, struck at Living Centers and its trial counsel by comparing trial counsel to perpetrators of the T-4 Project atrocities. There was no evidence, the court stated, that Living Centers either intended to injure or kill Belia or that Living Centers performed medical experiments on her. The Penalvers’ improper comments, the court stated, were not inadvertent; the jury argument was designed to incite passions of the jury and turn the jurors against defense counsel for doing what lawyers are ethically bound to d advocate clients’ interests within the bounds of law. Counsel for Living Centers, the court stated, was entitled to urge a smaller damages amount than the plaintiffs sought without being painted as modern-day equivalents of T-4 Project operators who experimented on and purposefully killed humans. The argument struck at the integrity of the courts, the court continued, by utilizing an argument that was improper, unsupported, and uninvited. Failure to deal harshly with this type of argument, the court stated, could only lead to its emulation and the entire judicial system will suffer as a result. The court said that it agreed with the appeals court’s dissenting justice: “[T]he argument complained of struck at the heart of the jury trial system, was designed to turn the jury against opposing counsel and his clients, and was incurable.” OPINION:Per curiam.

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