SW Legal studies in Business

Improper Arguments in Court May Be Incurable

Texas high court held that claims by plaintiffs’ attorney that defendants actions were like Nazi murders were not only improper but were incurable, meaning the verdict must be reversed and a new trial ordered.

Topic Court Procedure
Key Words

Improper Argument; Incurable Argument

C A S E   S U M M A R Y

Peñalver was moved into a nursing home in 1997. In 2000, when she was 90, a nursing home employee dropped her while transferring her from a wheelchair to a bed; Peñalver died the next day. Her heirs sued the nursing home and others for wrongful death. The nursing home admitted that the negligence of its employee was the proximate cause of death so the issue was damages. The jury awarded $1.1 million in damages. In closing arguments, the plaintiffs’ counsel discussed the mass killing of elderly and infirm people in Nazi Germany and likened the nursing home action to that. Defendants appealed based on improper argument by the plaintiff, but the appeal was rejected by the trial and appeals court. Defendants appealed again.


Reversed and remanded for new trial. The argument made by plaintiffs’ counsel was improper, and the argument is incurable so the verdict must be overturned. By its nature, the argument was so improper its effects could not be removed by court instruction to the jury or by retraction. The argument caused prejudice that likely resulted in an improper verdict. It strikes at the fairness of the justice system and the integrity of the courts. The trial court should have acted at the time the argument was made but failed to do so.


Living Centers of Texas. Inc. v. Peñalver, ---S.W.3d--- (2006 WL 204502, Sup. Ct., Tex., 2008)

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