Living Centers of Texas, Inc., Cyndi Brown, LNFA, and Kimberly Bordovsky, DON v. Augustine Penalver, Individually and as Independent Executor of the Estate of Maria Belia Penalver, Deceased, and Ramon Penalver--Appeal from Probate Court No 2 of Bexar County

DISSENTING OPINION

No. 04-05-00565-CV

LIVING CENTERS OF TEXAS, INC.;

Cyndi Brown, LNFA; and Kimberly Bordovsky, DON,

Appellants

v.

Augustine PE ALVER, Individually and as Independent Executor

of the Estate of Maria Belia Pe alver, Deceased, and Ramon Pe alver,

Appellees

From the Probate Court No. 2, Bexar County, Texas

Trial Court No. 2001-PC-0706

Honorable Tom Rickhoff , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 13, 2006

Ten years ago this Court adopted the test for incurable jury argument first enunciated by Chief Justice Ramey for the Tyler Court of Appeals in Boone v. Panola County, 880 S.W.2d 195, 198 (Tex. App.-Tyler 1994, no writ). See Macias v. Ramos, 917 S.W.2d 371, 375 (Tex. App.-San Antonio 1996, no writ). The test is two-pronged: "whether the argument, when viewed in light of the entire record was so inflammatory as to": (1) "strike at the heart of the adversarial process or" (2) "appeal to fundamental prejudices." Id. at 375. The second prong of the test was infused with practical significance in Texas Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859 (Tex. App.-San Antonio 1990, writ denied), in which this Court held that even a "veiled and subtle" appeal to ethnic prejudice is incurable error. Id. at 864-66. This case affords us a similar opportunity to breathe life into the first prong of this test by examining whether an argument "strike[s] at the heart of the adversarial process." The majority utterly fails to address this question and, in so doing, implicitly overrules this aspect of Macias. More importantly, by disingenuously assuming error and refusing to confront why the Pe alvers' T-4 argument was so very improper, indeed pernicious, in the context of this case, the majority guts the incurable error doctrine for cases not involving pleas to racial or ethnic unity. Since 1979, when the Texas Supreme Court took such care to preserve the incurable error doctrine in Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979), the need for the doctrine - and the Reese Court's wisdom in preserving it - has perhaps nowhere been more forcefully demonstrated than in this appeal. I must therefore dissent.

Improper

By referencing the T-4 Program, the Pe alvers' attorney invoked the specter of not only the T-4 Euthanasia Program - "the official name of the Nazi Germany eugenics program" which "forcefully conducted mass sterilizations and killing of Germans who were institutionalized or suffering from birth defects" (1) - but also Hitler, "[p]erhaps the most universally hated character in the world today ...." (2) The stated premise for referring to the T-4 Program was that "the defense is that this death is not significant because she is old and because she was impaired." But this stated premise represents an insidious mischaracterization of the defendants' argument. The defendants did not argue that Maria Pe alver's advanced age and substantial impairment rendered her deathinsignificant; to the contrary, the defendants argued that the brevity of her conscious pain and suffering, coupled with her advanced age and substantial impairment, limited the resulting damages.

The majority opinion suggests the T-4 argument was somehow rendered curable because it did not use the words "Hitler" or "Nazi." But this holding "simply reward[s] counsel for ingenuity in packaging," as was so eloquently recognized in Justice Peeples's opinion in Guerrero:

The law should not stoop to evaluating subtle distinctions such as whether an argument was too crude and revolting, or on the other hand sufficiently slick and artful to pass muster. To permit the sophisticated ethnic plea while condemning those that are open and unabashed would simply reward counsel for ingenuity in packaging. Inevitably, lawyers representing their clients zealously within the bounds of the law would test the limits and fine-tune their arguments to avoid being too explicit. Courts would be asked to label some arguments permissible and uphold them with a wink when everyone knew that an ethnic appeal had been made. That course would demean the law and perhaps deepen the divisions from which society already suffers.

Guerrero, 800 S.W.2d at 865. This case demonstrates the wisdom of Guerrero's holding. Only "with a wink" can it be argued that the jury in this case could not and did not connect the dots between the words the majority sanctions - "World War II," "the Germans," "atrocities," and the "T-4 Project."

The majority opinion also suggests the references to the T-4 Program demonstrate a permissible use of a rhetorical device generally permitted in closing argument - "analogy." But the analogy is a false one. This case involves one death resulting from stipulated negligence. The T-4 Program, on the other hand, involved more than 200,000 deaths resulting from nothing short of institutionalized murder. 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." Winn v. Warner, 172 S.W.2d 526, 528 (Tex. Civ. App.-San Antonio 1943, writ ref'd w.o.m.). As Justice Murray so eloquently wrote in Winn: "To compare a litigant to this cruel, inhuman savage madman [Hitler], ... even though by the slightest remark, is calculated to arouse the deepest prejudice on the part of the jury and should not be done by counsel." Id.

The majority opinion also suggests the reference to Hitler's T-4 Program is a justified use of historical reference. But the reference is so plainly inapposite that it must be judged to have had no purpose other than to inflame the jury's passion. See State v. Frink, 158 N.C. App. 581, 582 S.E.2d 617, 624 (2003) ("Although our courts 'do not completely restrict closing arguments to matters that are only within the province of the record, to the exclusion of any historical references ... [we] will not allow such arguments designed to inflame the jury, either directly or indirectly, by making inappropriate comparisons or analogies'"; "'using Hitler as the basis for the example has the inherent potential to inflame and to invoke passion in the jury.") (quoting State v. Walters, 357 N.C. 68, 588 S.E.2d 344, 366, cert. denied, 540 U.S. 971 (2003)), appeal dism'd, rev. den., 358 N.C. 547, 599 S.E.2d 565 (2004).

There may come a civil case in which a reference to Hitler or the T-4 Program would be an appropriate use of analogy or historical reference and thus not constitute error. I shudder even to imagine such a case since it would necessarily involve the depraved experimentation on and murder of impaired elders and innocent children. But a negligence case like this - in which a certified nurse's aide accidentally "dropped" an elderly resident - is clearly not such a case. I would therefore hold the reference to the T-4 Program was error and turn to whether it was curable by analyzing whether it struck at the heart of the adversarial system.

Incurabilility

Because the defendants stipulated to their negligence, the only jury argument available to them was the amount of the proximately-caused non-economic actual damages - the monetary value of the deceased's conscious physical pain and mental anguish and her sons' past and future mental anguish and loss of companionship and society. The defendants' arguments thus focused on certain undisputed facts that, they argued, limited the plaintiffs' damages: the deceased's conscious pain and suffering was brief (less than two hours); she was of advanced age (90) and therefore limited life expectancy; and she was, before the accident, substantially impaired (possible Alzheimer's and congophilic amyloid angiopathy or hardening of the brain vessels, which may have been the cause of severe or advanced senile dementia, all of which are terminal, progressive, and untreatable; being fed through a feeding tube and confined to a wheelchair; and existing in a mostly nonverbal state, communicating by nodding her head or with one or two words at a time).

In response to these arguments - necessarily rendered legitimate by a judicial system that requires placing a monetary value on the tragic loss of a human life - the Pe alvers' attorney invoked the specter of Hitler's T-4 Euthanasia Program. This is the name-calling pathos version of the straw man argument used so effectively by Senator Joe McCarthy when he pointed at people and called them Communists. By its very nature, this type of argument is designed to discourage a decision based upon rational thought and encourage a decision based upon emotion. As used here, this pathos argument deflected the jury's attention away from the factors involved in the legally-required loss valuation process to a highly-charged emotional question that was not before them - whether they or the defendants were like Hitler and his T-4 Euthanasia Program and thus did not properly value the life of an impaired elderly person. The argument obviously achieved its intended purpose: The $1.1 million in actual damages awarded by this jury are more than twice the $356,000 in actual damages found by the jury in the first trial. See Pe alver v. Living Centers, Inc., No. 04-02-00920-CV, 2004 WL 1392268, at *1 (Tex. App.-San Antonio June 23, 2004, no pet.) (mem. op.). Indeed, the $1.1 million in actual damages awarded by this jury exceeds the combined total of the $356,000 in actual and $500,000 in exemplary damages found by the jury in the first trial. See id.

As the Texas Supreme Court has recognized, "basic to the very essence of the adversarial process ... is that each party have the opportunity to adequately and vigorously present any material claims and defenses." Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002) (quotingSouthwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 437 (Tex. 2000)). In this case, the defendants' right to present their material defenses to the claimed damages was met by the false and purely inflammatory analogy to the T-4 Program. I can envision no more direct hit to "the heart of the adversarial system." I would therefore hold the error was incurable.

Conclusion

One of the few goods to have come out of World War II is the collective sense of guilt we now feel for atrocities committed in other parts of the world. As Hans Rolfe said in his closing argument in Ernst Janning's trial in Judgment at Nuremberg: "Ernst Janning said he is guilty. If he is, Ernst Janning's guilt is the world's guilt - no more and no less." (3) This collective sense of guilt felt by so many since World War II carries with it at least the potential to cause us to feel a corresponding collective sense of responsibility and act to prevent the recurrence of anything approaching the horrors of the Nazi regime. To permit a lawyer to invoke that sense of guilt - to permit him to employ it to suggest to jurors that the defendant is no better than the perpetrators of the T-4 Program because it argues (as it has the legal right to do) that the damages are limited by the advanced age and substantial impairment of the victim and indeed that the jurors are no better if they do not award high damages - is wrong as a matter of law and public policy. To label such an inflammatory argument "curable" is, at best, "naive." (4) I therefore dissent.

Sarah B. Duncan, Justice

1. Wikipedia, T-4 Euthanasia Program, http://en.wikipedia.org/w/index.php?title=T-4_Euthanasia_Program& oldid=70794293 (as of Aug. 20, 2006).

2. Winn v. Warner, 172 S.W.2d 526, 528 (Tex. Civ. App.-San Antonio 1943, writ ref'd w.o.m.).

3. AmericanRhetoric.com, Movie Speeches, Judgment at Nuremberg, http://www.americanrhetoric.com/Movie Speeches/moviespeechjudgmentatnuremberg2.html (last visited Aug. 24, 2006).

4. Bruton v. United States, 391 U.S. 123, 129, 88 S. Ct. 1620, 1624, 20 L. Ed. 2d 476 (1968) ("The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.") (quoting Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 723, 93 L. Ed. 790 (1949) (Jackson, J., concurring)); see also Walker v. State, 610 S.W.2d 481, 484 n. 6 (Tex. Crim. App. [Panel Op.] 1980) ("It is better to follow the rules than to try to undo what has been done. Otherwise stated, one cannot 'unring a bell'; 'after the thrust of the saber it is difficult to say forget the wound'; and finally 'if you throw a skunk into the jury box, you can't instruct the jury not to smell it.'") (quoting Dunn v. United States, 307 F.2d 883, 886 (5th Cir.1962)).