When not to play the Nazi card

In trial No. 2 of a wrongful death suit, a nursing home stipulated its liability for the death of a 90-year-old woman who died in 2000 after an employee of the facility dropped her. The first jury trial resulted in $356,000 in actual damages and $362,000 in punitive damages for the plaintiffs, the woman’s estate and her two sons. But the 4th Court of Appeals in San Antonio reversed the judgment and remanded the suit for a new trial, because of improperly admitted evidence of previous falls at the nursing home. During closing arguments at the second trial in Bexar County Probate Court No. 2, the plaintiffs’ attorney compared the attempt by the nursing home’s lawyer to minimize damages in the suit to Germany’s World War II T-4 Project, in which elderly and impaired people were used in medical experiments and killed. The jury awarded more than $1.1 million in damages to the plaintiffs. The nursing home appealed, but the 4th Court affirmed in a 2-1 decision in September 2006. So the nursing home petitioned for review by the Texas Supreme Court, which was more sympathetic. The high court today reversed the 4th Court’s judgment and remanded the case to Probate Court No. 2 for yet another trial. In its per curiam opinion in Living Centers of Texas Inc., et al. v. Penalver, the Supreme Court stated: “The argument struck at the integrity of the courts by utilizing an argument that was improper, unsupported and uninvited.” That’s a wordy way of saying the argument was out of bounds.
-- Mary Alice Robbins