As a guy who spends most of his days representing nursing homes and their employees who work every day addressing very difficult end of life issues, I was saddened last year when I read the San Antonio Court of Appeals’ decision in Living Centers of Texas, Inc. v. Penalver, 217 S.W.3d 44 (Tex.App – San Antonio). At issue was counsel for Plaintiffs’ insinuation that Living Centers, its employees and counsel were somehow comparable to Nazi Germany’s T-4 program wherein persons who were deemed inferior were euthanized or subjected to medical experimentation. Never mind that counsel for Living Centers was/is a well respected member of the state bar and that Living Centers had admitted liability for the resident’s fall.
In refusing to remand the case for a new trial, the San Antonio Court of Appeals basically blessed this type of tactic, insinuating that argumentation or analogy was fair game, so long at it did not result in incurable error that struck at the heart of impartiality, equality and fairness of justice. Thankfully, the Texas Supreme Court has a different opinion of what it means to encourage emulation of argumentation that is improper, unsupported and downright wrong. For those of us who have had to live the reality of not being able to “unring the bell” or “get the skunk out of the box,” the Texas Supreme Court’s decision in Living Centers of Texas, Inc. v. Penalver, — S.W.3d — , 2008 WL 204502, Tex. Jan. 25, 2008, gives us the ability to go home tonight and tell our kids that no matter what people may say, we are still proud to be lawyers.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.