Living Centers of Texas, Inc. v. Penalver, No. 06-0929 (Tex. Jan. 25, 2008)(per curiam)
(wrongful death, nursing home negligence, improper jury argument)

RAMON PEÑALVER; from Bexar County; 4th district (04-05-00565-CV, 217 S.W.3d 44, 09-13-2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument,
the Court reverses the court of appeals' judgment and remands the case to the trial court.

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Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678 (Tex. 2008) (per curiam)



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, we reverse and remand for a
new trial.

Belia Peñalver 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 Peñalvers 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
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 Peñalvers’ 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 Peñalvers’ 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 court of appeals affirmed, with one justice dissenting. 217 S.W.3d 44. In its
petition for review, Living Centers continues to complain of the final jury argument which criticized Living
Centers’ counsel and referenced Germany’s World War II T-4 Project.

Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.
Tex. Employers’ Ins. Ass’n v. Haywood, 266 S.W.2d 856, 858 (Tex. 1954). The complaining party must not
have invited or provoked the improper argument. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839
(1979). Typically, retraction of the argument or instruction from the court can cure any probable harm, but
in rare instances the probable harm or prejudice cannot be cured. In such instances the argument is
incurable and complaint about the argument may be made even though objection was not timely made. See
Tex. R. Civ. P. 324(b)(5); Haywood, 266 S.W.2d at 858. To prevail on a claim that improper argument was
incurable, the complaining party generally must show that the argument by its nature, degree, and extent
constituted such error that an instruction from the court or retraction of the argument could not remove its
effects. See Haywood, 266 S.W.2d at 858. The test is the amount of harm from the argument:

whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice
to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not
eliminate the probability that it resulted in an improper verdict. Id.

But jury argument 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.

In Reese, this Court discussed different types of jury argument that constitute incurable error. For example,
appeals to racial prejudice adversely affect the fairness and equality of justice rendered by courts because
they improperly induce consideration of a party’s race to be used as a factor in the jury’s decision. See
Reese, 584 S.W.2d at 840 (citing Haywood, 266 S.W.2d at 858); see also Moss v. Sanger, 12 S.W. 619,
620 (Tex. 1889). Unsupported, extreme, and personal attacks on opposing parties and witnesses can
similarly compromise the basic premise that a trial provides impartial, equal justice. See Reese, 584 S.W.2d
at 840 (citing Howsley & Jacobs v. Kendall, 376 S.W.2d 562 (Tex. 1964) and Sw. Greyhound Lines, Inc. v.
Dickson, 236 S.W.2d 115 (Tex. 1951)). Further, accusing the opposing party of manipulating a witness,
without evidence of witness tampering, can be incurable, harmful argument. See Howsley & Jacobs, 376 S.
W.2d at 565-66.

The serious effects of arguments not based on evidence or invited by opposing counsel, such as the one
under consideration here, are recognized in our Rules of Civil Procedure. Rule 269 provides that during
final arguments, “[m]ere personal criticism by counsel upon each other shall be avoided, and when
indulged in shall be promptly corrected as a contempt of court.” Tex. R. Civ. P. 269(e). Trial courts are not
required to wait for objections before correcting improper argument, but should guard against such conduct
and correct it sua sponte. Tex. R. Civ. P. 269(g).

Incurable argument is, however, rare. Not all personally critical comments concerning opposing counsel are
incurable. But arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond
the parties and the individual case under consideration if not corrected. Such arguments damage the
judicial system itself by impairing the confidence which our citizens have in the system, and courts
countenance very little tolerance of such arguments. See Reese, 584 S.W.2d at 840 (“The injection of new
and inflammatory matters into the case through argument has in exceptional instances been regarded as
incurable by an instruction. . . . [A]n affront to the court and the equality which it must portray will be dealt
with harshly.”).

The argument which Living Centers complains of struck at Living Centers and its trial counsel by comparing
trial counsel to perpetrators of the T-4 Project atrocities. The T-4 Project was brought up only once during
trial when, upon inquiry by the Peñalvers’ counsel, a witness testified that he was not familiar with the
program. There was no evidence that Living Centers either intended to injure or kill Belia or that Living
Centers performed medical experiments on her. The extreme final argument cannot be said to have been
invited by the actions of Living Centers’ counsel in pointing out what the evidence clearly showed: Belia was
elderly and had certain impairments that accompanied the aging process. The Peñalvers’ improper
comments were not inadvertent, and 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 do: advocate clients’
interests within the bounds of law. Counsel for Living Centers 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 by utilizing an argument that was improper, unsupported,
and uninvited. Failure to deal harshly with this type of argument can only lead to its emulation and the
entire judicial system will suffer as a result.

Our analysis and conclusion is not altered because it was Living Centers’ counsel who first used the term
“Nazi.” The right to complain of improper, incurable jury argument is not lost by counsel’s attempting to
respond to and reduce the effect of such argument. See Tex. R. Civ. P. 269(e); Panhandle & S.F. Ry. Co.
v. Huckabee, 216 S.W. 666, 668 (Tex. 1919).

We agree with the dissenting justice in the court of appeals: the 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. The judgment of the court of appeals is reversed, and the case is remanded for a new trial.

OPINION DELIVERED: January 25, 2008