ACCEPTED 01-15-00774-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 6:53:36 PM CHRISTOPHER PRINE CLERK No. __________________ FILED IN IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 9/8/2015 6:53:36 PM CHRISTOPHER A. PRINE Clerk IN RE PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN INCAPACITATED ADULT, Relator.

Original Proceeding from the 269th District Court, Harris County, Texas, Trial Court Cause No. 2009-40925 Honorable Dan Hinde, Presiding

RELATOR’S RECORD IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS VOLUME III OF III TERRY & THWEATT, P.C. BECK REDDEN LLP L. Lee Thweatt Russell S. Post State Bar No. 24008160 State Bar No. 00797258 [email protected] [email protected] Joseph D. Terry Constance H. Pfeiffer State Bar No. 24013618 State Bar No. 24046627 [email protected] [email protected] One Greenway Plaza, Suite 100 William R. Peterson Houston, TX 77046-0102 State Bar No. 24065901 (713) 600-4710 [email protected] (713) 600-4706 (Fax) Parth S. Gejji State Bar No. 24087575 [email protected] 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax) COUNSEL FOR RELATOR INDEX TO RELATOR’S MANDAMUS RECORD Page Volume I Plaintiffs’ Second Amended Petition (April 25, 2011) ...................................000001 Order Granting Leave to File Third Party Action (August 19, 2011) .............000010 Defendants’ Combined Third Amended Answer (October 5, 2011)...............000011 Second Amended Plea in Intervention (October 12, 2011) .............................000020 Defendants’ Motion for Leave to File Third Amended Answer & First Amended Answer to Plea in Intervention, and Response to Plaintiff & Intervenor’s Joint Motion to Strike (October 17, 2011) ..................................000029 Order Granting Leave to File Pleading Signed (October 17, 2011) ................000046 Plaintiff and Intervenor’s Joint Motion for Entry of Final Judgment (November 18, 2011) .......................................................................................000047 Response to Plaintiff and Intervenor’s Joint Motion for Entry of Final Judgment (December 13, 2011) .......................................................................000079 Plaintiff’s Brief in Support of Motion for Judgment (December 15, 2011) ....000096 Volume II Intervenor’s Brief in Support of Motion for Judgment Based Upon Jury Award (January 10, 2012) ........................................................................000148 Defendants’ Response to Plaintiff Wagner’s Brief in Support of Motion for Judgment (January 11, 2012) ........................................................000169 Final Judgment (January 13, 2012)..................................................................000249 Motion for Judgment Notwithstanding the Verdict or In the Alternative, Motion for New Trial (February 13, 2012) .................................000252 Volume III Supplement to Defendants’ Motion for Judgment Notwithstanding the Verdict Or, In the Alternative, Motion for New Trial (March 5, 2012) ..........000297 Intervenor’s Response to Defendants’ Motion for Judgment Notwithstanding the Verdict Or, In the Alternative, Motion for New Trial (March 6, 2012) .......................................................................................000312 Plaintiff’s Response to Defendants’ Motion for JNOV, New Trial and To Modify, Correct or Reform the Judgment (March 7, 2012) .......................000322 Intervenor’s Brief on Defendant’s Challenge to the Factual Sufficiency of the Jury Verdict that Esperanza Arzola Was Not Negligent (March 16, 2012) .............................................................................000410 Plaintiff’s Brief on Jury’s Failure to Find Negligence in Question 1 (March 16, 2012)..............................................................................................000419 Defendants’ Brief on Jury’s Failure to Find Negligence on Esperanza Arzola (March 23, 2012)..................................................................................000471 Order Setting Aside Final Judgment (March 27, 2012) ..................................000480 Motion for Reconsideration of Order Granting New Trial (April 10, 2012) ................................................................................................................000481 Defendants’ Response to Plaintiff’s Motion for Reconsideration of Order Granting New Trial (May 1, 2012)........................................................000497 Reply in Support of Motion for Reconsideration of Order Granting New Trial (May 3, 2012) .................................................................................000507 Order Denying Plaintiffs’ Motion for Reconsideration of Order Granting New Trial (May 4, 2012) ..................................................................000515 Order Denying Motion to Dismiss (August 23, 2012) ....................................000516 Notice of Appeal of Anthonia Uduma (August 24, 2012)...............................000517 ii Mandate ............................................................................................................000520 Hearing transcript of Pretrial Motions, Voir Dire, Statement of Facts from October 17, 2011......................................................................................000522 Hearing transcript of Jury Trial from October 18, 2011 ..................................000875 Hearing transcript of Jury Trial from October 19, 2011 ..................................001195 Hearing transcript of Motion for Entry of Judgment from January 13, 2012 ............................................................................................0001417 Verification Respectfully submitted, BECK REDDEN LLP By: /s/ Russell S. Post Russell S. Post State Bar No. 00797258 [email protected] Constance H. Pfeiffer State Bar No. 24046627 [email protected] William R. Peterson State Bar No. 24065901 [email protected] Parth S. Gejji State Bar No. 24087575 [email protected] 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax) TERRY & THWEATT, P.C.

L. Lee Thweatt State Bar No. 24008160 iii [email protected] Joseph D. Terry State Bar No. 24013618 [email protected] One Greenway Plaza, Suite 100 Houston, TX 77046-0102 (713) 600-4710 (713) 600-4706 (Fax) Counsel for Relator

iv CERTIFICATE OF SERVICE I hereby certify that on September 8, 2015, a true and correct copy of the above and foregoing Relator’s Record in Support of Petition for Writ of Mandamus was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered, otherwise by email, as follows: Jim Plummer Michael D. Hudgins Amar Raval Nicole James Petrelli PLUMMER & KUYKENDALL THE HUDGINS LAW FIRM, P.C.

4203 Montrose Blvd., Suite 270 24 Greenway Plaza, Suite 2000 Houston, TX 77006 Houston, TX 77046 [email protected] [email protected] [email protected] [email protected] Counsel for Real Parties in Interest Counsel for Real Parties in Interest

/s/ Russell S. Post Russell S. Post

v NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT OF JENNI WAGNER, AN § INCAPACITATED ADULT, § Plaintiff, § § v. § HARRIS COUNTY, T E X A S § FOUR J'S COMMUNITY LIVING § CENTER, INC., ANTHONIA UDUMA, § AND GODFREY UDUMA, § Defendants. § 269TH JUDICIAL DISTRICT

SUPPLEMENT TO DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE. MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT: Defendants, Four J's Community Living Center, I c. and Anthonia Uduma, supplement their Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial, as follows: Defendants supplement their Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial with the attached evidence: 1. Revised affidavit of Ms. Debra Little Smith; 2. Affidavit of Ms. Marianne Reat, Custodian of Records for Texas Department of Aging and Disability Services, with attached Contract #001007724.

Supplement to Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial 1 000297 Respectfully submitted, PLUMMER & KUYKENDALL

James C. Plummer Texas Bar No. 16075700 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 Telephone 713 .522.2887 Facsimile 713 .522.3605 THE HOLMAN LAW FIRM, P .C.

sfDavid W. Holman David W. Holman Texas Bar No. 09902500 Greenway Plaza, Suite 2000 Houston, Texas 77046 Telephone 713 .400.4840 Facsimile 713.400.4841 Attorneys for Defendants

Supplement to Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial 2 000298 CERTIFICATE OF SERVICE I hereby certify that on March 5, 2012: This document was filed via Texas.gov electronic filing system, and the required number of copies was forwarded to the Court by regular mail or express mail.

This document was forwarded to the following via Texas.gov electronic filing system and/or electronic mail: Attorneys for Plaintiff Mr. L. Lee Thweatt Mr. Russell S. Post Mr. Joseph D. Terry Ms. Constance H. Pfeiffer TERRY & THWEATT, P.C. BECK, REDDEN & SECREST, LLP One Greenway Plaza, Suite 100 1221 McKinney, Suite 4500 Houston, Texas 77046 Houston, Texas 77010-2010 Telephone 713.600.4710 Telephone 713.951.3700 Facsimile 713.600.4706 Facsimile 713.951.3720 Attorneys for Intervenor Mr. Shelton Sparks Ms. Tiffany Harvey SHELTON SP ARKS & ASSOCIATES Cordell Street Houston, Texas 77009 Telephone 713.862.5533 Facsimile 713.862.4913

s/David W. Holman David W. Holman

Supplement to Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial 3 000299 APPENDIX Tab Document A Affidavit of Debra Little Smith (revised) B Affidavit of Ms. Marianne Reat, Custodian of Records for Texas Department of Aging and Disability Services, with attached Contract #001007724

Supplement to Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial 4 000300 A

Affidavit of Debra Little Smith (revised)

000301 .......\~''' •~, ;JEXAS ~~Department of Aging COMMISSIONER ~"" and Disability S.ervices Chris Traylor

STATE OF TEXAS § COUNTY OF TRAVIS § Before me, the undersigned authority, on this day appeared Debra Little Smith, who being by me duly sworn, deposed as follows: 1. ''My name is Debra little Smith. I am of sound mind and capable of making this affidavit. I have personal knowledge of th~ facts stated herein and they are true and correct.

2. I am the Manager for Waive.r Survey and Certification, which is a unit within Regulatory Services at the Texas Department of Aging and Disability Services.

My job duties include managing tbe unit that certifies Home and Community- based Services (HCS) and Texas Horne Living (TxHmL) contracts. RCS and TxHmL are home aud community-based services waiver programs for persons with intellectual or developmental disabilities adopted in accordance with Section 1915(c) of the federal Social Security Act.

3. Pursuant to my authority, I have investigated the status of Four J's Community Living Ce.nter, Inc. Contract # 001007724 to determine its certification history.

This is the HCS contract that serves waiver contract area #5, which inelude·s Harris County.

4. From that investigation, I found that this Four J's HCS contract has been certified continuously by the State of Texas since the contract was issued on March 12, 2004. This means this Four J's HCS contra.ct was certified by the State of Texas on September 4, 2008, and this HCS contract is certified by the State of Texas today.

Notary without Bond SWORN TO AND SUBSCRIBED before me on this the / ~ay o.f ~' 2012.

~~ T~ Notary Public, State of . . '· 70l"W. 51stSt. * P.O. Box 149030 *Austin, Texas 78714-9030 * (512)438-3011 * www.dads,slil.te.i:ic.us An Equ.?I Opporiunity EmplO'!f!t and Provider 000302 B

Affidavit of Ms. Marianne Reat, Custodian of Records for Texas Department of Aging and Disability Services, with attached Contract #001007724

000303 STATE OF TEXAS § § DOCUMENT CERTIFICATION COUNTY OF TRAVIS §

Before me, the undersigned authority, en this day appeared Marianne Reat, who being by me duly .sworn, deposed as follows: '"My name is Marianne Real. I am of sound mind, capable of making this affidavit, and personally .acquainted with the 'facts herein stated. I am the Managing Attorney, Litigation Services Unit, Leg·a1 Services S~ctiqn for the Texas Department of Aging and Disability Services (DADS). The :Commissioner of the Texas Department of Aging and Disability Services has delegated to me the authority to serve as custodian of the documents referred to herein below for the Texas Department of Aging and Disability Services.

Pursuant to this authority, I have attached hereto a true and correct copy of I pages: Contract Records for Four J's Community Living Centers, Inc. Contract# 001007124 The Texas Department of Aging and Disability Ser\iices keeps the at'tached records in the regular course of business. It was fn the regular course of business for an employee or representative of the Texas Department of Aging and Disability Services or its predecessor agency, with knowledge of the act or event, to make the record or to transmit information thereof to be.included in sucn re.cord, and the record was made at or near the. time or reasonably soon thereafter; or, in the case of documentation given to DADS by another entity; It was in the regular course of business for an employee or representative ·of the Texas Department of Aging and Disability Serviees or its predecessor agency to receive the. r~cord .and place it In files of the. Department. The attached re·cords are exact dt1plicates of the originaJ, except where information may have been deleted or redacted pursuant to -the requirements of law." . ~!/}1tU1 d.~·/1--vv.~-~ i ( /..!l_tl-f.

Marianne Reat Custodian of Records SWORN TO ANO SUBSCRIBED before me on this the .2nd day of February, 2012.

LAURA MULL Nota.ry Public, State of Texas ~otary Public STATE Or TEXAS Commission Exp.11·02·2014 ' Notary without Bond

000304 Medicaid Provider Agreement For The Provision Of HCS Program Services Component Number 86V Vendor Number 001007724 The Texas Department of Mental Health and Mental Retardation or its successor (the Department) and Four J's Community Living Centers, Inc. (the Program Provider) hereby enter into this .Medicaid Provider Agreement for the Provision of Horne and Community-Based Services (HCS) Program Services (this Agreement) for the considerations set forth herein.

This Agreement is effective the 12th day of March, 2004, and will continue in force until terminated in accordance with the tenns of this Agreement.

I.

The Department is the Texas state agency responsible for operating the HCS Program administered under §1915(c) of the Social Security Act.

The Program Provider is provisionally certified or ce1tified by the Depaitment as a qualified HCS Program provider to provide HCS Program services to individuals enrolled by the Depaitmentin the HCS Program (Individuals) residing in those counties within the Department's Waiver Contract Area (WCA 5) that ai·e set forth under Vendor# 001007724in the Depaitment' s Automated Enrollment and Billing System (the counties served).

II.

The Program Ptovider agrees to: A. Provide the following HCS Program service components, defined in Attachment A, as authorized by each Individual's Individual Plan of Care (IPC): 1) Case Management; 2) Counseling and Therapies; 3) Nursing Care; 4) Residential Assistance; 5) Day Habilitation; 6) Supp01ted Employment; 7) Adaptive Aids; 8) Minor Home Modifications; 9) Dental Services; and 10) Respite Care; to Individuals, up to the number set forth under Vendor# 001007724, CARE Screen# C70, in the Department's Automated Enrollment and Billing System. These service components will be provided in accordance with applicable state laws and rnles, including but not limited to the 25 Texas Administrative Code (I'AC) Chapters 409 and 419; applicable federal laws and regulations, including but not limited to the Code of Federal Regulations (CfR) Title 42, Parts 440, 441, 455 and 456; B. Provide Case Management using only one or more persons employed by, not contracting with, the Program Provider; C. Maintain continuous certification from the Depaitment as a qualified HCS Program provider; 2004

000305 HCS Provider Agreement Page2 of7 D. Keep its application for participation in the HCS Program current by informing the Department in writing of any changes to the information contained in its application, including but not limited to, the counties served, changes in ownership or control, federal tax identification number, and addresses, at least ten days prior to making such changes; E. Upon request by the Department, execute, submit to the Department and comply with the Department's computer security agreement; " F. Accept the cm1ent HCS reimbursement rate or the rate as it may hereafter be amended, as payment in full for perfo1mance under this Agreement, and to make no additional charge to the Individual, any member of the Individual's family, or any other source, including a third party payor, except as allowed by federal and state laws, rules, regulations and the Medicaid State Plan. In addition, the Program Provider agrees that, in accordance with 42 CFR §433.145 and Human Resources Code §32.033, an Individual assigns to the Depaitment his or her rights to payments and recovery from third parties; G. Manage an Individual's personal funds at the request of the Individual. This includes maintaining a financial account for Individuals who entrust personal funds to the Program Provider and maintaining a separate detailed record of all deposits and expenditures for each Individual. The Individuals' personal funds will not be commingled with the Program Provider's funds; H. Submit claims for payment, including electronic claims, in accordance with billing guidelines and procedures promulgated by the Department. The Program Provider certifies that infmmation submitted regarding claims will be tlue, accurate, and complete, and that such infmmation can be verified by source documents from which data entry is made by the Program Provider. Further, the Program Provider understands that payment of the claim will be from federal and state funds and that any falsification or concealment of a material fact may be prosecuted under federal and state laws; I. Allow the Depmtment to adjust payments made to the Program Provider, without notice, for plior overpayment or underpayment to the Program Provider, except as provided in paragraph II.J; J. Refund to the Department any "ove1payment" (as defined in 42 CFR §433.304) to the Program Provider. Such refund will be made within 60 days following the Program Provider's discovery of the overpayment or the Program Provider's receipt of a notice of such discovery from the Depmiment, whichever is sooner; K. Cooperate with and assist the Depaitment and any state and federal agency charged with the duty of identifying, investigating, sanctioning, or prosecuting suspected fraud and abuse; L. Disclose information on ownership and control, information related to business transactions and information on persons convicted of crimes in accordance with 42 CFR Part 455, Subpart B, and provide such information on request to the Department, the Texas Department of Human Services or its successor (TDHS), Texas Health and Human Services Commission (HHSC), the Texas Department of Health or its successor (TDH), the Texas Depruiment of Family and Protective Services (DFPS), the Texas Attorney General Medicaid Fraud Control Unit (AG Medicaid Fraud), or the United States Department of Health and Human Services (USHHS);

2004

000306 HCS Provider Agreement Page3 of7 M. Provide the following information to the Department, through the Department's Automated Enrollment and Billing System, each calendar quarter and when the information changes: 1) The Program Provider's business address and telephone number; 2) The name of the Program Provider's chief executive officer; 3) A telephone number at which the Program Provider's chief executive officer or designated representative can be reached during and after normal business hours; and 4) The name, if any, physical address and telephone number of all residences of Individuals in which HCS Program services are provided and in which the Program Provider or the residential assistance provider hold a property interest; N. As provided by 42 CFR §431.107, keep any records necessary to disclose the extent of services provided by the Program Provider to Individuals (including Individuals' clinical records) and, on request, provide to the Depai1ment, HHSC, AG Medicaid Fraud, or USHHS, any such records and any information regarding payments claimed by the Program Provider under this Agreement; 0. Provide any information, records, or copies thereof, required by this Agreement at no cost to the state or federal authority requesting such information or records; P. Keep all records required by paragraph II. N. of this Agreement until one of the following occurs, whichever is the latest: 1) six years elapse from the date the records were created; 2) any audit exception or litigation involving the records is resolved; or 3) for records concerning an individual under 18 years of age, the individual becomes 21 years of age.

Q. Allow representatives of the Department, or the local mental retm·dation authority as its designee, HHSC, TDHS, TDH, DFPS, AG Medicaid Fraud, and USHHS, full and free access to the Program Provider staff, Individuals, and all locations where the Program Provider delivers HCS Program services; R. Allow the AG Medicaid Fraud and HHSC to conduct interviews of the Program Provider's employees; subcontractors and their employees, witnesses, and Individuals without the Program Provider's representative or the Program Provider's legal counsel present unless the person voluntarily requests that the representative be present. The Program Provider's employees, subcontractors and their employees, witnesses, and Individuals must not be coerced by the Program Provider or the Program Provider's representative to accept representation by the Program Provider and the Program Provider agrees that no retaliation will occur against a person who denies the Program Provider's offer of representation. Nothing in this Agreement limits a person's right to counsel of his or her choice. Requests for interviews are to be complied within the form and manner requested. The Program Provider wiJI ensure by contract or other means that its employees and subcontractors over whom the Program Provider has control cooperate fully in any investigation conducted by the AG Medicaid Fraud and/at HHSC. Subcontractors are those persons or entities who provide medical goods or services for which the Program Provider bills the Medicaid program or who provide billing, administrative, or management services in connection with Medicaid-covered services; 2004

000307 HCS Provider Agreement Page 4of7 S. Comply with applicable state laws and mies, including but not limited to 25 TAC Chapters 409 and 419, and 1 TAC Chapter 355, Subchapter F; applicable federal Jaws and regulations, including but not limited to 42 CFR Parts440, 441, 455, and 456, and 45 CFR Parts 46, 80, 84, 90, and 91; T. Comply with the HCS Service Definitions & Billing Guidelines and any amendments thereto, and the HCS Provider Manual and any amendments thereto, after such manual is provided to the Program Provider; U. Comply with the Civil Rights Act of 1964, §504 of the Rehabilitation Act of 1973, the Immigration Reform and Control Act of 1986, and the Americans with Disabilities Act of1990; V. Comply with the Texas Health and Safety Code, §85.113 relating to workplace and confidentiality guideli_nes regarding AIDS and HIV; W. Comply with Executive Order (E.O.) 11246, Equal Employment Opportunity, E.O. 11375, Amending Executive Order No. 11246, Relating to Equal Employment Opportunity, and 41 CFR Part 60, Office ofFederal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor; X. Comply with 42 United States Code (USC) §7401 et seq., the Clean Air Act, and 33 USC §1251 et seq., the Federal Water Pollution Control Act, and all applicable standards, orders and regulations issued pursuant to those acts; Y. Comply with 31 USC §1352, Limitations 011 Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions, and 45 CFR Pait 93, New Restrictions 011 Lobbying. In accordance with these provisions, the Program Provider will: (a) execute and submit to the Department, Form 2047, Ce11ification Regarding Federal Lobbying, upon execution of this Agreement; (b) execute and file with the Deprutment, Standard Fo1m-ILL, Disclosure Regarding Lobbying, if applicable; and (c) require compliance with 31 USC §1352 and.45 CFR Patt 93 by participants in lower tier transactions, if applicable; Z. Comply with 45 CFR Prut 76, Govemmemwide Debamzent and Suspension (Nonprocurement) and Govemme1itwide Requiremellts for Dmg-Free Workplace (Grants). In accordance with these regulations, the Program Provider will: (a) execute and submit to the Department, Form 2046, Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions upon execution of this Agreement; (b) provide written notice to the Department if at any time the Program Provider learns that its ce1tification is e1TOneous when submitted or has become erroneous by reason of changed circumstances; and (c) require compliance with 45 CFR Part 76 by participants in lower tier covered transactions; AA. Comply with the Hea1th Insurance Pmtability and Accountability Act of 1996 (HJPAA); specifically, the Standards for Privacy of Individually Identifiable HeaJth Information, 45 CFR Parts and 164, Standards for Electronic Transactions, 45 CFR Parts 160 and 162, and Secmity Standards, 45 CFR Parts 160, 162, and 164; BB. Comply with all HCS Policy Letters promulgated by the Department that are received by the Program Provider after the effective date of this agreement; CC. Notify the Deprutment in writing at least 10 days prior to declaring bankruptcy; and 2004

000308 HCS Provider Agreement Page 5 of7 DD. Rep01t to the Department, through the Department's Automated Enrollment and Billing System, within 30 days following the end of each calendar month, the reportable data, by type, for that calendar month. The types of reportable data are descdbed in Attachment B.

III.

By execution of this Agreement, the Program Provider certifies and agrees: A. That the Program Provider is cu1Tent in its payment of any required Texas franchise tax. If the Program Provider becomes delinquent in the payment of .its Texas franchise tax during the term of this Agreement, payment to the Program Provider may be withheld by the Comptroller of Public Accounts until such delinquency is remedied; B. That; under Texas Family Code §231.006, the Program Provider is not ineligible to receive the payments specified in this Agreement (Texas Family Code §231.006 states that a child supp01t obligor who is more than 30 days delinquenfin paying child support and a business entity in which the obligor is a sole proprietor, prutner, shareholder, or owner with an ownership interest of at least 25% are not eligible to receive payments from state funds under a contract to provide property, materials, or services, or receive a state-funded grant or loan.); C. That the Program Provider has not been excluded or debmTed from participation in any state or federal health care program, including any Title XVm (Medicare) or Title XIX (Medicaid) program, under the provisions of §1128(a) or (b) of the Social Security Act [42 U.S.C.§1320a-7(a) or (b)) or Executive Order 12549. The Program Provider will notify the Depaitment within 10 days of the date it receives notice that any action is being taken against the Program Provider or any individual or entity defined under the provisions of§ 1128(b)(8) or (15) which could result in exclusion of the Program Provider from a Medicaid Program; and D. That the Program Provider will provide wdtten notice to the Department if, during the te1m of this Agreement, the Program Provider learns that any of the certifications made by the Program Provider in this Agreement are or have become inaccurate.

IV.

The Department agrees to: A. Pay the Program Provider, in accordance with applicable state and federal laws, rules, and regulations, the cmTent HCS reimbursement rate or the rate as it may hereafter be amended, for HCS Program services provided to hldividuals; and B. Provide an administrative hearing to the Program Provider, in accordance with state and federal laws, rules, and regulations, concerning an adverse action taken by the Department. v. The Department and the Program Provider mutually agree that: A. Payment by the Department to the Program Provider under this Agreement is contingent upon the Program Provider's maintaining certification as a qualified HCS Program provider, availability of appropriated funds and federal financial participation, operation of the HCS Program by the Department, and the Program Provider's compliance with the tenns of this Agreement. No payment 2004

000309 HCS Provider Agreement Page 6 of7 will be made to the Program Provider under this Agreement for HCS Program services provided to persons who are not eligible for or enrolled by the Depaitment in the HCS Program at the time such services are delivered; B. This Agreement is subject to all state and federal laws, mies, and regulations relating to fraud and abuse in health care and the Medicaid Program; C. This Agreement may be terminated: 1) by agreement between the Department and the Program Provider; 2) by the Program Provider upon sixty days wdtten notice to the Depruiment of the Program Provider's intent to terminate this Agreement; 3) by the Department for reasons set forth in federal or state laws, rnles or regulations; 4) by the Department if the Program Provider fails to comply with the te1ms of this Agreement, including but not limited to failure of the Program Provider to maintain ce1tification as a qualified HCS Program provider; 5) by the Department or the Program Provider, subject to the equitable settlement of their respective obligations, if federal or state laws, rules, or regulations are enacted, amended, repealed, or judicially interpreted so as to render the fulfillment of this Agreement by either party unfeasible or impossible and the Department and the Program Provider cannot agree upon amendments to this Agreement necessary to comply with such changes to laws, rules or regulations; 6) by the Department if a cettification made by the Program Provider in this Agreement is false or becomes inaccurate; or 7) by the Depa11ment for good cause; D. The Department will notify the Program Provider in writing if the Department decides to terminate this Agreement. The Department will provide the Program Provider an opportunity for a heating to appeal the Department's decision to tetminate this Agreement. If the Program Provider makes a timely request for a heating, the Depmtment will not terminate this Agreement pending sµch hearing. If the final determination of a heating is favorable to the Depmtment, termination of this Agreement will be effective on the date specified in the Depatiment's notice of te1mination or as specified in the decision of the administrative law judge; E. If the Department decides to temtinate this Agreement, the Depmtment will withhold payments to the Program Provider under this Agreement in accordance with Texas Human Resources Code, §32.034, as of the date specified for such withholding in the Department's notice of termination.

If the Program Provider requests a hearing to appeal the Department's decision to tetminate this Agreement, and the final decision of the hearing is favorable to the Department or if the Program Provider does not request a hearing, payments withheld under this paragraph will not be made to the Program Provider; F. The Deprutment may place payments due to the Program Provider under this Agreement on vendor hold for reasons set fo11h in federal or state laws, mles or regulations, or if the Program Provider fails to comply with the tetms of this Agreement; G. Nothing in this Agreement will be constrned to require the Department to enter into a new agreement with the Program Provider, or to renew or extend this Agreement;

2004

000310 HCS Provider Agreement Page7 of7 H. If the Department amends·the HCS Service Definitions & Billing Guidelines, the RCS Bitling and Payment Review Protocol or the HCS Provider Manual, it will notify the Program Provider of such amendments. The Program Provider will ucknowledge the receipt of such amendments t>y executing and submitting the fonn provided by the Department by certified mail to the address indicated on sucb fonn. The Department may place payments due to the Program Provider under this Agreement on v.endor hold as provided in paragraph V.F. of this Agreement if the Program Provider fails to ex~ute and submit such fonn within twenty (20) days of the date of the notice; I. Assignment by the Program Proviaer of this Agreement must be in accordance with 25 TAC §419.710; J. In the event any provision o.f this Agreement becomes unenforceable or void, such will not invalidate any other provision of 1his Agreement; K. The venue for miy cause of action initiated by the Department or the Program Provider related to this Agreement will be Trnvis County,_Texas; and L. Any notice, f;t.C:knowlec1gment, or disclosure required to be given to the Department by the Ptogram Provider under this Agreement will be delivered in person or by certified mail, retum -receipt requested, to the following person and address: Associate Director for Vendor Operations, Medicaid Administration Texas Department of Mental Health and Mental Retardation P.O. Box 12668 Austin, Tex.as 78711-2668 Any ·notice 1·equired to be given to the Program Provider by the Department ~nder this Agreement will be in writing, ta, the most current b1,1siness address provided by the Program Provider on its -application for participation in the HCS Program and, except the notice .referenced in p,aragraph V.H., delivered in person. or by certified mail, return receipt requested; TEXAS DEPARTMENT OF MENTAL HEALTHANDMENTALRE A1l

b, &if (Date) (Authorize ignature) (Date) •<N:~i;mrJ·for Vendor Operations Medicaid Administration trN THo IJJ ~- (Typ:e/Print Name) .\1 ~ t< Mt\-- t\~.ck91 (Titl.e)

2004

000311 Filed 12 March 6 P8:26 Chris Daniel - District Cleric Harris County ED101 J016163934 By: Chariie R. Tezeno CAUSE NO. 2009-40925 WYLETTE TAYLOR, AS GUARDIAN § IN THE DISTRICT COURT OF DERRICK LEON JAMES, an § Incapacitated Adult § Intervenor, § § v. § 269TH JUDICIAL DISTRICT § § FOUR J'S COMMUNITY LIVING § CENTER, INC., AND ANTHONIA § UDUMA § Defendants. § HARRIS COUNTY, TEXAS INTERVENOR'S RESPONSE TO DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Intervenors, by and through their attorney of record, SHELTON SPARKS, who ask this Court to deny Defendant's Motion to sign a Judgment Notwithstanding the Verdict or Motion for New Trial.

A. INTRODUCTION 1. Intervenor is An Incapacitated Adult male and Wylette Taylor is his Guardian.

2. Defendant, Four J's Community Living Center, Inc. is a corporation authorized to do business in the State of Texas.

3. Defendant, Anthonia Uduma, is an individual who owns 100% of the stock in Four J's Community Living Center, Inc. and is the property owner at 16355 Beretta Court, Houston, Texas 77489.

4. Intervenor sued Defendant, Anthonia Uduma, for Premises Liability in failing to correct known dangerous conditions on the property owned by her that she maintained

000312 control over that the jury found were the proximate causes of the injuries suffered by Tanya James, Deceased, prior to her death.

5. Intervenor sued Defendant, Four J's Community Living Center, Inc., for negligence in failing to provide Tanya James with adequate supervision during the fire when they knew she needed help hand over hand to remove her from an emergency and for failing to ensure their caretaker was adequately trained in the proper fire and emergency evacuation protocols.

B. FACTS 6. After the trial on the merits, the court submitted this case to the jury; the jury returned a verdict for Intervenor. A copy of the Court's Charge reflecting the answers of the jury is attached to this motion as Exhibit A.

7. On January 13, 2012, this Court entered Final Judgment. A copy of the Final Judgment is attached as Exhibit B.

C. ARGUMENTS AND AUTHORITIES 8. The court should not grant a Motion for Judgment Notwithstanding the Verdict unless a direct verdict would have been proper, Tex. R. Civ. P 301. Accordingly, the facts of this case as presented by the evidence did not warrant a directed verdict and the court properly submitted the case to the jury. The Court should view a Judgment Notwithstanding the Verdict under a No-Evidence Standard, meaning we credit evidence favorable to the jury verdict if reasonable juror could and disregard contrary evidence unless reasonable juror could not. Tanner v. Nationwide Mut. Fire Ins. Co. 289 S. W.3d 828, 830 (Texas 2009).

9. The Court should not disregard the jury's answer to a question unless there is no evidence to support it. Tiller v. Medurro, 121, S. W.3d. 709, 713 (Tex. 2003); Wal-Mart Stores, Inc. v. Miller, 102 S. W.3d. 706, 709 (Tex. 2003). If more than a Scintilla of Evidence

000313 supports the finding, the court cannot disregard the jury's answer to the question. Mancorp, Inc. Culpepper, 802 S. W.2d 226, 228 (Tex. 1990).

10. The Defendants are hereby requesting the Court to disregard the jury's answer to Question No. 1 regarding their findings to whether Esperanza Arzola's acts were "negligent." The jury found there were not.

11. Defendants allege her actions were criminal in nature and that she had committed arson and as a result, there was no evidence Four J's or Mrs. Anthonia Uduma knew or should have known she would commit arson. There was no foreseeability of whether criminal conduct previously occurred on the premises. How recently and frequently the criminal conduct occurred how similar the other criminal conduct was to the action on August 4, 2008. Timberwalk Apartment, Partners Inc. v. Cain 972 S. W. 749, 756 (Tex. 1998).

12. The jury heard testimony from several witnesses that Mrs. Arzola was a very troubled woman who had a history of committing violent and dangerous acts to herself and others. The jury heard testimony from the caretaker that she was afraid of her and knew her to have destroyed property on numerous occasions at Berretta Court. They heard testimony about her aggressive actions when she needed her medication adjusted and how she had attempted suicide on more than one occasion. They heard testimony about the Defendant's knowledge of her being a smoker and how she had ready access to a cigarette lighter at the Day Hab Center where she was taken to and brought back from by Defendant, Four J's five (5) days a week.

13. The jury also heard testimony from Dr. Susan Gallagher that Mrs. Arzola may not have had the requisite mental capacity to form the intent to commit the crime of arson.

14. The jury made the determination that the fire was not the proximate cause of the injuries to Tanya James, but the fact of a lock being on the back door fire exit which was dead bolted, and having the inexperienced employee who neglected to remove Tanya James from the property was the proximate cause of her injuries.

000314 D. ANTHONIA UDUMA'S CONTROL OVER THE PROPERTY 15. There is sufficient evidence that was presented to the jury who found Anthonia Uduma 40% liable for the damages to Tanya James.

16. The Court should not disregard the jury's answers to Question No. 1 unless there is no evidence to support it. Wal-Mart Stores, Inc. v. Miller, 102 S. W.3d, 706, 709 (Tex. 2003). If more than a Scintilla of Evidence supports the finding, the Court cannot disregard the jury's response to Question 1 and Question 2, holding Anthonia Uduma individually responsible.

17. Over the course of the trial, the jury heard numerous witnesses testify that the property located at 16355 Beretta Court was owned by Anthonia Uduma but leased to Four J's Community Living Center, Inc. The jury was also aware that Mrs. Uduma was the sole owner of the property and 100% owner of corporation.

18. The jury heard the testimony of several employees and vendors that Mrs. Uduma maintained control over the Fire Safety Control System on the property and that she was the only person who Omni Alarm System, Inc. dealt with or interacted with whenever there was a system problem or when it was time to schedule the annual system evaluation. Anthonia Uduma was the only person who made the decision on what type of system was in place on the property.

19. The jury heard from two (2) former employees who stated that whenever there was an in-service on fire safety, it was Mrs. Uduma who conducted the fire safety training.

They testified that she was the one who instructed them not to attempt to "leave out of the back door, that it was dead bolted but to attempt to take Mrs. Wagner out of a window." This is in spite of the fact that the back door with the deadbolt was a designated fire exit.

20. The jury heard from Mrs. Amuche Udemezue; that on numerous occasions she was instructed to sign off on fire safety drill sheets showing the time period to evacuate the residence was less than three (3) minutes when in reality it took longer and the time incorrectly recorded.

000315 21. The jury heard from Mrs. Uduma that the reason there was no overhead sprinkler system in the house was because they could document the time showing the residence could be evacuated within three (3) minutes.

22. The jury also heard that whenever it was time for the Fire Marshal to inspect the property, Mrs. Uduma insisted that she be the one to escort him throughout the house and made sure the back door key to the deadbolt fire exit was available.

23. The jury found, per its response to Question 1 and Question 2, that Mrs. Anthonia Uduma was negligent and determined her percentage of liability to be 40%. Far more than a Scintilla of Evidence was present that Mrs. Uduma maintained control over the entrances and exits of the property and the fire alarm system on the property. In fact, a preponderance of evidence was submitted to the jury and they so found. Restatement (Second) Torts§ 360, (1965). Johnson v. Endsley, 926 S.W. 284, 285 (Tex. 1996), Osti v. Saylor 991 S.W.2d 322 (Tex. App-Houston) [1st Dist.] 1999.

E. CHAPTER 74 APPLICABILITY

24. On the day of trial, the Court allowed Defendant to amend their pleadings to bring forth their affirmative Defense of Chapter 74. The Court inquired into whether Four J's was licensed, certified or chartered by the State of Texas. Defense counsel stated that they were and the Court asked whether the verification was attached to its Motion for Leave?

Defendant stated it was not. Defendant further stated we will "get that for the Court this morning and we certainly have testimony to bring, your honor."

25. When Intervenor closed its examination of Mrs. Anthonia Uduma, Defendant reserved its questioning of her until its case in chief. Prior thereto, no questions or evidence had been presented to the jury that Four J's or Mrs. Uduma were a healthcare provider.

000316 26. When Defendant, Anthonia Uduma, was on the stand in their case in chief, no evidence was provided to the jury regarding Four J's being a licensed, certified, or chartered by the State of Texas to provide healthcare.

27. The Defendants called two other witnesses who were employees of Four J's and no testimony was provided by them to this jury about Four J's being a licensed healthcare provider.

28. The MLIIA defines, "healthcare providers, any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, or registered, or chartered by the State of Texas to provide healthcare ..... "

29. With regard to the assertion that a Defendant meets the definition of a healthcare provider because it is certified by the State of Texas, the movant has the Burden of Proof to present evidence to establish that it is certified by the State of Texas. City of Van Alstyne v. Young 146 S. W.3d 846, 849 (Tex. App.-Dallas 2004).

30. If the record in the case contains no evidence to show Four J's Community Living Center Inc. is duly licensed, certified or registered or chartered by the State of Texas to provide healthcare, it cannot be determined whether it is a healthcare provider such that the Chapter 74 protections are applicable. Brown v. Villegas, 202 S. W.3d 803 (Tex. App-San Antonio 2006). In the absence of their evidence, we cannot determine whether Four J's meets the definition of a healthcare provider. Id. 807.

31. Defendants allege in their motion, "Plaintiff and Intervenor presented no evidence that Four J's was not a healthcare provider." This vailed attempt to shift the Burden of Proof is contrary to the law. If Defendants wanted to avail themselves of the protection of Chapter 74, it was their responsibility to present evidence to establish they met the statutory requirement of a healthcare provider. Id. City of Van Alstyne v. Young 849.

000317 32. This case had been on the court's docket for months and there had been two (2), if not more prior trial settings in which this case had not been reached. During this time, nothing had been filed by Defendants alleging they were healthcare providers and since the issue was not raised prior to Defendants amending their pleadings, a week before trial, Plaintiff and Intervenor had no ability to develop any discovery to determine whether Defendant was licensed by the State of Texas.

33. The list in the current definition of "healthcare providers" is not exclusive, so to determine if an entity qualifies as a healthcare provider, then it must be determined whether it is duly licensed, certified, or registered or chartered by the State of Texas to provide healthcare. Christus Health v. Beal, 240 S. W.3d (Tex. App.-Houston) /1st Dist.] 2007. The record must contain evidence that Four J's is licensed by the State of Texas, it does not.

There is no testimony from Anthonia Uduma or any other corporate representative that it was licensed. San Antonio Extended Medical care, Inc. v. Vasquez, 04-09-00546-cv (Tex Ca 4).

34. Defendants are incorrect in their assertion that the evidence establishes without controversy that Four J's or Anthonia Uduma are healthcare providers under Chapter 74. In open Court, Defendant's made a judicial admission that Anthonia Uduma was not healthcare provider, and as such, waived his trial amended pleadings asserting that she was.

35. It is very controversial that Four J's and Anthonia Uduma are healthcare providers and the record does not reflect that they are. Intervenor Objects to the Admission of the Revised Affidavit of Mrs. Debra Little Smith being admitted. Intervenor Objects to the Admissions of the Affidavit of Mrs. Marianne Reat being Admitted. The statements contained therein are hearsay and involve controversial matters. It is an attempt by Defendants to raise and introduce disputed issues of fact some 100 days after the verdict. In a jury case, no evidence on a controversial matter shall be received after the verdict. Tex. R. Civ. P. 270, The State of Texas v. Harrington; Et al 407 S.W.2d 467 (Tex. 1966).

000318 F. THE LEGAL SUFFICIENCY OF THE EVIDENCE RELATING TO TANYA JAMES' PHYSICAL PAIN AND MENTAL ANGUIS

36. At the trial in this case, the jury was informed by testimony of several witnesses that Tanya James had suffered severe bums over major portions of her body. The jury was informed about the time between the paramedics arriving at the Berretta Court property and the time she died at Memorial Herman Hospital. They were informed that she was unconscious, and under heavy pain medication. They were also informed that she was intubated, had IV's in her arms, and photos were also introduced into evidence showing her condition in the hospital prior to her death.

37. Accordingly, it is clear that an award of mental anguish damages will survive a legal sufficiency challenge when Plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a disruption in Plaintiffs daily routine. Parkway v. Woodruff, 301 S. W.2d 434, 444, (Tex. 1995) 38. Such evidence whether in the form of the Plaintiffs own testimony, or that of third parties or experts, is more likely to provide the fact finder with adequate details to access mental anguish claims. Id. 444.

39. The jury determined that the time duration Tanya James suffered with the physical and mental anguish as a result of the second and third degree bums over major portions of her body was adequate for them to base their award on her damages.

40. The high degree of physical pain and mental anguish the jury was able to adequate with her suffering was more than "mere worry, anxiety, and vexation." Id. 444.

41. This jury was not left to speculate about the existence of compensable severe physical pain and mental anguish that was the result of the negligence of Defendants.

42. The Court should not disregard the jury's award when sufficient evidence was provided the jury to justify the award. J.B. Custom Design & Bldg. V. Clemson 794 S. W.2d 38, 43 (Tex App-Houston) [1st Dist.] 1990, No Writ.

000319 G. INPROPER JURY ARGUMENT

43. In the case of Improper Jury Argument, the complainant must prove, (1) an error, (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a mistrial, (4) was not curable by an instruction, a prompt withdrawal of the statement or a reprimand by the judge, (5) that the argument by its nature, degree, and extent constituted reversible harmful error, (6) the arguments probable effect on a material findings, (7) an importantly, a reversal must come from an evaluation of the whole case which begins with voir dire and ends with the closing argument. From all these factors, the complainant must show that the probability from the improper argument caused harm greater than the probability that the verdict was grounded on the proper proceedings and evidence. Aultman v. Dallas Ry. & Term Co. 152 Tex. 509, 260, S. W.2d (1953), Standard Fire Insurance Co. v. Reese, 584 S. W. 835 (Tex. 1979).

44. The complainant, by failing to object and press for an instruction at the time of the argument waives his complaint. Turner v. Turner 385 S. W.2d 230 (Tex. 1964) Maston v. Texas Employers Ins. Assin, 160 Tex. 438, 331 S. W.2d. 907, 910 (1960).

45. The appellate attorney is attempting to bring racial prejudice into this case when it has no bearing. Defendant's trial attorney is African American and had he felt there was some attempt to marginalize his clients based on race or nationality, he would have objected and gotten a ruling from the Court. He did not because the closing argument did not !

46. The Court should not sign a judgment Notwithstanding the Verdict or a Motion for New Trial because all answers rendered by the jury was based on substantial evidence to support it.

H. CONCLUSTION

47. The Court should not grant a Motion for Judgment Notwithstanding the Verdict or a Motion for New Trial unless a directed verdict would have been proper. Tex. R. Civ. P.

000320 301. Further, more than a Scintilla of Evidence was submitted to the jury to support their findings and the Court should not disregard their verdict.

PRAYER FOR THESE REASONS, Intervenors ask the Court to Deny the Defendant's Motion for Judgment Notwithstanding the Verdict or in the alternative, their Motion for New Trial.

Respectfully submitted, Shelton Sparks & Associates L.L.C.

By: _ _ _ _ _ _ _ _ _ _ _ __ SHELTON SPARKS Texas Bar No. 06507160 Cordell Street Houston, Texas 77009 Telephone (713) 862-5533 Facsimile (713) 862-4913 Attorney for Intervenors CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT ON march 6, 2012 a true and correct copy of the forgoing document was served on the following via facsimile, U.S. mail, and/or electronic mail: Plummer & Kuykendall - James C. Plummer Beck, Redden & Secrest, LLP - Russell S. Post 4203 Montrose Boulevard, Suite 270 1221 McKinney, Ste. 4500 Houston, Texas 77006 Houston, Texas 77010 Facsimile: 713-522-3605 Facsimile: 713-951-3720 Phone:713-522-2887 Phone:713-951-3700 Terry & Thweatt, P.C. -Lee Thweatt The Holman Law Firm, P.C. - David W. Holman One Greenway Plaza, Ste. 100 24 Greenway Plaza, Ste. 2000 Houston, Texas 77046 Houston, Texas 77046 Facsimile: 713-600-4706 Facsimile: 713-400-4841 Phone: 713-600-4710 Phone:713-400-4840

SHELTON SPARKS

000321 Filed 12 March 7 P6:16 Chris Daniel - District Clerlc Harris County ED101J01.6766226 CAUSE NO. 2009-40925 By: Charlie R. Tezeno PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF WAGNER, AN INCAPACITATED ADULT, § § Plaintiff, § § § HARRIS COUNTY, TEXAS ~ § § FOUR J's COMMUNITY LIVING CENTER, INC.; § ANTHONIA UDUMA; and GODFREY UDUMA, § § Defendants. § 269TH JUDICIAL DISTRICT

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTIONS FOR JNOV, NEW TRIAL AND TO MODIFY, CORRECT OR REFORM THE JUDGMENT

Plaintiff Patti J. Wagner ("Ms. Wagner"), appearing as guardian of Jenny Ann Wagner ("Jenny Ann"), files this response to Defendants' post-judgment motions and supplements.

FACTUAL BACKGROUND AND SUMMARY OF ARGUMENT This Court accepted briefs and heard extensive arguments before signing a judgment on the verdict. Those arguments focused on Defendants' duties and whether to apply a statutory cap on noneconomic damages. See TEX. C1v. PRAC. & REM. CODE§ 74.30l(a). Because Defendants have no new legal arguments on these issues, there is no need to reconsider them now.

Defendants do offer new evidence in an attempt to conclusively prove, at this late date, that Defendant Four J's was a "certified" health care provider. They are entitled to make a bill, as they promised to do at the conclusion of the hearing on judgment formation, but they are not entitled to prove their defensive theory months after trial. Defendants cite no rule of procedure that authorizes (much less obligates) the Court to alter its judgment based on this new evidence.

Defendants' other arguments are standard preservation points that can be swiftly rejected.

They have one meritorious point about an interest calculation, and we attach a new judgment that recalculates pre-judgment interest.

000322 ARGUMENT I. Defendants Offer No New Legal Arguments To Justify JNOV or a New Trial.

Defendants present the same arguments this Court considered before signing a judgment, as they are certainly entitled to do at this stage. They developed their arguments the first time, and their post-judgment papers confirm there is nothing else to say.

This Court showed great diligence when these arguments were first presented, considering lengthy briefs, holding a hearing, and asking pointed questions. At the end of the hearing the Court announced that "I am persuaded to grant the motion for entry of judgment.

I am not persuaded to apply the caps. I am not persuaded to exclude Ms. Uduma from liability." Tab A at 69.

At that hearing, the Court denied Defendants' request to take judicial notice of websites that had been attached to their filings, Tab A at 69, and the Court denied Defendants' request to reopen the evidence to allow Defendants to present "the certification." Id. When this Court afforded Defendants an opportunity to make a bill, they started to do so and then declined, announcing that they would "present the Court with it later." Id. at 70-71. Defendants explained that they wanted more time to get the certificate in admissible form and would present it later.

Id Now they present new evidence, presumably for purposes of their bill.

II. Defendants' New Evidence Cannot Be Considered Now.

Defendants do not formally move to reopen the evidence, nor do they formally request that the Court take notice of new evidence under a rule of civil procedure. They simply attach new evidence and ask for a new ruling. To the extent that the Defendants are making their bill, as the Court invited them to do, they are free to make a record. But there is no procedural basis for the Court to consider new evidence at this point-which is why Defendants cite no authority.

They are entitled to make their record, but they are not entitled to any relief at this late date.

000323 A. The new evidence has never been previously offered, and it would be inappropriate to consider it now.

Nearly two months after this Court signed a judgment, Defendants offer new evidence in the form of two affidavits that state they were signed on February 2, 2012 and March 1, 2012.

This newly created evidence is far too late to be considered.

First, this Court has already denied a motion to reopen the evidence under Rule 270.

Recall that Defendants did not make a Rule 270 motion before verdict, as the rule requires for "evidence on a controversial matter." See TEX. R. CIV. P. 270. Then, at the January hearing, Defendants did not even make a Rule 270 motion until after the Court signed a judgment.

Defense counsel confessed that they did not "want to get into the position of asking [the Court] to reopen the evidence to show the certification." Id. at 53. But after the Court announced its rulings on the record, Defendants asked that the evidence be reopened. The Court denied that request for the reasons argued extensively before the Court. See Tab A at 69-70.

Defendants have not cited Rule 270 in their post-judgment motions, evidently because they are simply making the bill they promised. But make no mistake: By attaching and relying on new evidence, they are in substance asking for the same relief the Court has already denied.

Defendants do not cite Rule 270 or formally ask that the evidence be reopened because they are too late under the plain language of the rule.

The plain language of Rule 270 prohibits the untimely admission of evidence on controversial matters: "[I]n a jury case no evidence on a controversial matter shall be received after the verdict of the jury." TEX. R. CIV. P. 270. The language of the rule is not discretionary; in cases tried to a jury, the trial court is bound by the mandatory term "shall." Defendants can offer these affidavits for purposes of their bill, but they cannot reopen the evidence now.

000324 Likewise, Defendants do not ask the Court to take judicial notice of their new affidavits, as they did with the websites in the January hearing, because a new affidavit offered many weeks after trial is obviously not a proper basis for judicial notice. See TEX. R. Evm. 201(b).

Defendants only argue that the affidavits are "admissible under the public records rule." Motion for JNOV or New Trial at 13 (citing TEX. R. Evm. 803(8)). It is unnecessary to consider whether either affidavit fits within this hearsay exception, because neither Rule 803 nor the cases Defendants cite offers any basis to admit an affidavit into the record four months after the trial.

The admissibility of the affidavits may be relevant to their bill, but not to their request for relief.

Defendants' admissibility arguments simply highlight that we are several steps removed from trial admissibility questions. The issue now is whether Defendants can lose a verdict, lose a judgment and only then attempt to create a more robust record on their affirmative defense.

At this late stage, the only basis to consider new evidence is Rule 324, which does not apply.

B. The affidavit is not newly discovered evidence under Rule 324.

Rule 324(b) requires parties who seek to rely on "newly discovered evidence" to file a motion for new trial. But to make a claim for a new trial based on "newly discovered evidence," the movant is obliged to allege, inter alia, that "(I) the evidence has come to its knowledge since the trial, [and] (2) its failure to discover the evidence sooner was not due to lack of diligence." Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Thus, diligence is an "essential element." Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). "Newly discovered evidence is evidence that was not, and could not have been, discovered using reasonable diligence." Patriacca v. Frost, 98 S.W.3d 303, 307 (Tex. App.-Houston [1st Dist.] 2003, no pet.). The test looks to whether the movant had notice before trial that the evidence existed-not whether the movant had notice that the evidence was necessary to its case.

000325 Here, there can be no dispute that Defendants' new affidavits are not newly discovered.

The affiants purport to review or authenticate documents that Defendants would certainly have known about before trial. At the very least, Defendants could have obtained the underlying documents or the affidavits before trial had they exercised reasonable diligence. To their credit, Defendants do not argue that the affidavits are newly discovered or explain their diligence in a verified motion, tacitly conceding that their lack of diligence is undisputed. See In re A.G.C., 279 S.W.3d 441, 454 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

In this respect, Plaintiffs note that Defendants attempted to supplement their motions with new affidavits filed on March 5, 2012, but those affidavits are untimely. A motion for new trial must be filed within 30 days of the judgment, TEX. R. C1v. P. 329b(a), and may not be amended as a matter of right unless the amendment occurs within 30 days after the judgment is signed.

TEX. R. C1v. P. 329b(b). Thus, the supplements and the attached affidavits are untimely.

Because there is no valid procedural basis to admit new evidence at this very late stage, this Court's rulings should not be revisited. Defendants are entitled to make a bill for the record, but they are not entitled to any new relief. The same reasons that persuaded the Court to sign a judgment on the verdict should persuade the Court to deny Defendants' post-judgment motions.

This is particularly true where the new evidence fails the newly discovered test. That ruling will be entitled to deference, as the Supreme Court requires every reasonable presumption to be made in favor of trial court orders refusing new trials. Jackson, 660 S.W.2d at 809-10.

III. Defendants' Miscellaneous Other Arguments Should Be Rejected.

Defendants also offer boilerplate arguments about the sufficiency of the evidence and the excessiveness of certain damage findings. Defendants must make these arguments to preserve their rights to appellate review, but it is not necessary for this Court to dwell on routine preservation points. The Court has heard all the evidence, which amply supports the verdict.

000326 Defendants also argue that a new trial should be granted because Intervenor's counsel offered "improper" jury argument. Specifically, they contend that Intervenor's counsel appealed to racial or national prejudice when he asked the jury to send a message to "these people." Motion for JNOV or New Trial at 10. They make this argument in one paragraph and with no enthusiasm because it is entirely without merit.

Everyone who was present during closing arguments knows that this general reference to one's trial opponents had no racial subtext whatsoever. The motion takes it badly out of context.

We will resist the temptation to editorialize about the circumstances of this trial and the identity of the lawyers and litigants involved; suffice to say that the notion this reference was designed to appeal to racial prejudice is impossible to take seriously.

Further, Defendants do not use the words "incurable" argument, but that is the standard because there was no contemporaneous objection, motion to instruct, and motion for a mistrial.

See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). The cases in which incurable appeals to prejudice required a new trial illustrate the stark contrast to this case. E.g., Living Ctrs. v. Penalver, 256 S.W.3d 678, 679 (Tex. 2008) Gudgment against nursing home reversed because plaintiff compared defense attorney's attempts to limit damages to the Nazis' WWII T-4 Project, in which the elderly and infirm were subjected to human experiments before they were killed). Referring to one's trial opponents as "these people" is a neutral reference, completely devoid of appeal to prejudice or bias. Further, there is no basis to believe that these words caused an improper verdict. "There are only rare instances of incurable harm from improper argument," Reese, 584 S.W.2d at 839, and this case is not one of them.

000327 IV. The Court Should Sign an Amended Judgment that Corrects the Interest Awards.

Defendants correctly note that prejudgment interest should not be calculated on awards of future damages. Because the interest awards were inadvertently calculated on the total verdict, Plaintiffs have corrected these calculations and attach an Amended Final Judgment. See Tab B.

This amended judgment is otherwise identical to the prior judgment in all material respects.

CONCLUSION & PRAYER Based on the reasons offered here and in prior filings and hearings on these same issues, which are incorporated by reference, Plaintiff Patti J. Wagner respectfully prays that this Court deny Defendants' post-judgment motions and sign the proposed Amended Final Judgment.

Plaintiff respectfully requests any and all additional relief to which she may be entitled.

Respectfully submitted, BECK, REDDEN & SECREST, L.L.P. By: Isl Russell S. Post Russell Post State Bar. No. 00797258 Constance H. Pfeiffer State Bar No. 24046627 1221 McKinney, Suite 4500 Houston, TX 77010-2010 (713) 951-3700 (713) 951-3720 (Fax) L. Lee Thweatt State Bar No. 24008160 Joseph D. Terry State Bar No. 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, TX 77046-0102 (713) 600-4710 (713) 600-4706 (Fax) ATTORNEYS FOR PLAINTIFF PATTI J. WAGNER, AS GUARDIAN OF JENNY ANN WAGNER, AN INCAPACITATED ADULT

000328 CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2012, a true and correct copy of the foregoing Brief in Support of Motion for Judgment was properly forwarded to the following counsel of record in accordance with the Texas Rules of Civil Procedure through the Texas.gov electronic filing system or bye-file or fax addressed as follows: James C. Plummer PLUMMER & KUYKENDALL 4203 Montrose Blvd., Ste. 270 Houston, TX 77006 (713) 522-3605 -Fax David W. Holman THE HOLMAN LAW FIRM, P.C.

24 Greenway Plaza, Ste. 2000 Houston, TX 77046 (713) 400-4841 - Fax Attorneys for Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma Shelton Sparks Tiffany Harvey SHELTON SPARKS & ASSOCIATES Cordell St. Houston, TX 77009 (713) 862-4913 -Fax Attorneys for Intervenor

Isl Russell S. Post Russell S. Post

000329 TABA

000330

VOLUME 1 OF 1 REPORTER'S RECORD 2 CAUSE NO. 2009-40925 PATTI WAGNER, AS GUARDIAN * IN THE DISTRICT COURT OF OF JENNY ANN WAGNER, AN * INCAPACITATED ADULT * Plaintiff * 5 * And * 6 * WYLETTE TAYLOR AS GUARDIAN * OF DERRICK JAMES, AN * INCAPACITATED ADULT * 8 Intervenor, * * vs. * HARRIS COUNTY, T E X A S * FOUR J'S COMMUNITY LIVING * CENTER, INC., ANTHONIA * UDUMA AND GODFREY UDUMA * Defendants. * 269TH JUDICIAL DISTRICT

HEARING ON MOTION FOR ENTRY OF JUDGMENT 14 JANUARY 13, 2012

16 On the 13th day of January, 2012, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Dan Hinde, Judge Presiding, held in Houston, Harris County, Texas. Proceedings reported by stenographic machine shorthand.

24 KATHLEEN KEESE,CSR Official Court Reporter 25 269th District Court

000331

A P P E A RAN C E S:

3 Mr. L. Lee Thweatt SBN: 24008160 Mr. Joseph D. Terry SBN: 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, Texas 77046-0102 713.600.4710 Mr. Russell S. Post SBN: 00797258 Mr. Robert H. Ford SBN: 24074219 BECK REDDEN & SECREST 1221 McKinney, Suite 4500 Houston, Texas 77010 713.951.3700 COUNSEL FOR PLAINTIFF

14 Mr. Shelton Sparks SBN: 06507160 SHELTON SPARKS & ASSOCIATES, L.L.C. Cordell Street Houston, Texas 77009 713.862.5533 Ms. Tiffany C. Harvey SBN: 24067343 THE LAW OFFICE OF TIFFANY HARVEY 706 Cordell Street Houston, Texas 77009 83 2 . 498 • 7076 COUNSEL FOR INTERVENOR

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AP PE AR AN C E S: Mr. James C. Plummer SBN: 16075700 Mr. Amar Raval SBN: 24046682 PLUMMER & KUYKENDALL 4203 Montrose Blvd., Suite 270 Houston, Texas 77006 713.522.2887 Mr. David W. Holman SBN: 09902500 THE HOLMAN LAW FIRM, PC Greenway Plaza, Suite 2000 Houston, Texas 77046 713.400.4840 COUNSEL FOR DEFENDANTS

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I N D E X VOLUME 1 OF 1 2 JANUARY 13, 2012

4 Page PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Calling of case . . . . . . . . . . . . . . . . . . . . . . . 5 Appearances of Counsel 5 Plaintiff and Intervenor's Joint Motion for Entry of Judgment . . . . . . . . . . . . . . . . 6 Ruling of the Court . . . . . . . . . . . . . . . . . . . . . . . . . 69 Court Reporter's Certification . . . . . . . . . . . . . . 75

13 * * * * * * * *

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P R 0 C E E D I N G S 2 THE COURT: The Court calls Cause Number 2009-40925. Patti J. Wagner versus Four J's Community Living Center, Inc. 5 Can I have appearances of counsel for the record, please.

7 MR. POST: Your Honor, on behalf of the B Plaintiff, Ms. Wagner, Russell Post.

9 MR. THWEATT: Lee Thweatt, Jim Terry on behalf of the Plaintiff, Ms. Wagner.

11 MR. FORD: Robert Ford on behalf of the Plaintiff, Ms. Wagner.

13 MS. HARVEY: Tiff any Harvey for the Intervenor.

15 MR. SPARKS: Shelton Sparks for the Intervenor.

17 MR. HOLMAN: David Holman on behalf of the Defendants.

MR. PLUMMER: Jim Plummer on behalf of the Defendants, Your Honor.

21 THE COURT: Good afternoon. I appreciate y'all's patience, as a couple of the earlier hearings went a little longer. So thank you ~ for your patience. ~ We're here on the Plaintiff and

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Intervenor's Joint Motion for Entry of Judgment.

2 We've got a lot of substantial briefing on this. I have read the motion and the response and the reply and looked at the cases. So that's just to give y'all a heads up on that. But this is the Plaintiff and Intervenor's motion, so I will let you all proceed first.

8 MR. POST: Your Honor, I appreciate it and I'm happy to proceed in whatever way is simplest for the Court. We have a very straightforward motion for entry of judgment on the verdict. It seems to me it might make sense to allow Mr. Holman to present his substantive challenges, and it may be more efficient for the Court for us to respond to his argument.

15 But I'm happy to proceed whichever way the Court would prefer.

17 THE COURT: Would you like to go first, Mr. Holman?

19 MR. HOLMAN: Sure.

20 THE COURT: All right.

21 MR. HOLMAN: Your Honor, we saw their motion for entry of judgment on the verdict; and there were a couple of problems that we saw initially. Number one, if Chapter 74 applies, then the damages must be reduced, the noneconomic damages,

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must be reduced from $14 million down to $250,000 per claimant. Number two, they were asking for judgment against Ms. Uduma personally; and there is no basis for judgment against Ms. Uduma personally. Let me address those in order.

6 First, the question of whether Chapter 74 applies. As you know, this issue was raised pretrial. Mr. Plummer filed a motion to amend his answers to allow him to assert Chapter 74, which the Court recognized was relevant as to the damage caps. They -- the Plaintiff and the Intervenor filed motions to strike that amended answer, and the Court took that up. The Court allowed that amended answer, and so Chapter 74 is in the case.

15 Now, does Chapter 74 apply? We think that there is no question Chapter 74 applies; and let me go through the analysis, if I can. First of all, there is in black and white in the Civil Practice and Remedies Code a statement about what constitutes a health care institution. And it says that a health care institution is "a home and community-based services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal Social Security Act, as ~ amended."

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Now, there is no dispute in this record that Four J's is a home and community-based services program for the treatment of mentally retarded persons, as authorized by DADS under the charter of the State of Texas. The reason that there is no dispute about that is that every single document almost every single document discusses that Four J's a is a home and community-based services program. There is -- we presented the Court in our response to to the brief filed by the Plaintiff, Wagner, we filed excerpts from all the exhibits that talk about Four J's being a home and community-based services program, an HCS program, for mentionly retarded adults.

15 Then there was -- we also presented the Court with the reference to the testimony of Ms. Wagner, who said that she was putting Jenny into transferring Jenny to Four J's which was an HCS program. We also presented the Court with references to the testimony of other folks, such as Ms. Uduma, Ms. Obichuku and Mr. Kern, all of whom testified about HCS and HCS policies and also the regulation by DADS.

23 We also presented the Court with the reference to Mr. Kern's expert report in which Mr. Kern said Four J's is a home and community-based

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services program, services facility, HCS facility.

2 The Texas Administrative Code 40, Texas Administrative Code 9.153 defines an HCS program as a home and community-based services waiver program as authorized by Section 1915(c) of the Social Security Act.

7 THE COURT: What provision is that s again?

9 MR. HOLMAN: That's 40, Texas Administrative Code 9.153.

11 THE COURT: All right. 9.153?

12 MR. HOLMAN: Yes, sir.

13 THE COURT: Thank you.

14 MR. HOLMAN: Also we cited in our brief the other administrative code provision which further defines the HCS program; and that is 9.154(a), which states, "The HCS Program is a Medicaid waiver program approved by the Centers for Medicare and Medicaid Services (CMS) pursuant to 1915(c) of the Social Security Act. It provides community-based services and supports to eligible individuals as an alternative ~ to the ICF/MR Program," which is the intermediate facility program. That would be similar to the state school program. "The HCS Program is operated by DADS under the authority of HHSC." That's in the 40, Texas

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Administrative Code, Section 9.154(a).

2 Now, so there is no dispute that Four J's -- and there was never any dispute in the record of this case during the trial of the case that Four J's operated as a home and community-based waiver program under DADS.

7 It is clear under Section a 7 4 . 0 0 1 ( a ) ( 11 ) ( I ) that 11 a home and co mm u n it y- bas e d services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal Social Security Act, 11 is a health care institution. And then we turn to the next section which defines a health care provider; and a health care provider is defined as including, under (12) (A) (vii), 11 a health care institution." So if you are a health care institution you qualify as a health care provider under Chapter 74. Thus, we don't think that there is any dispute in the record and there can be no dispute in the record that Chapter 74 applies to Four J's and that Four J's is a health care provider.

21 And we have cited the Court to two cases that have held in the same way. They have held that the the -- the nature of this entity is a home and community-based services program for mentally retarded adults; and, therefore, it is a health care provider.

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Now, the more difficult question for you is whether Ms. Uduma is a health care provider. Now, on a blank slate, if this were being written on a blank slate, there could be no question that as a matter of law Ms. Uduma is a health care provider.

6 And the reason for that is that the statute in unmistakeable terms says that an owner, a director, an B employee of a health care provider is a health care provider. We know from the undisputed testimony that was given by both the Plaintiffs and the Defendants in the trial of this case that Ms. Uduma is the owner of Four J's and she is the CEO of Four J's and that she is the president of Four J's. So she would qualify, on a blank slate, as a health care provider under this statute, no question.

16 The question arises because at the time that the Court in pretrial was wrestling with the issue of whether to grant the motion to amend, the Court -- they raised the question about whether Chapter 74 applied to Ms. Uduma because the argument -- our argument was that she was being sued as a premises owner. Mr. Plummer said, I agree with you, I don't think Chapter 74 applies. And he went further. He said, we are not going to assert any remedies, any rights, defenses for Ms. Uduma under

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Chapter 74.

2 Now, they have taken the position that that is a judicial admission and that bars him from -- bars Ms. Uduma from arguing that she is a health care provider under Chapter 74. I was troubled by the statements that Mr. Plummer made as well. And, you know, I made no secret of that to Mr. Plummer when I saw it because I thought: Well, gosh, you know, you made these statements; the Court heard these statements. But then I started looking into the law of judicial admission. The law of judicial admission is that you can judicially admit a fact but you can't judicially admit a matter of law. The idea is, I can't judicially admit, for example, that the Tort Claims Act doesn't apply to the City of Houston.

16 That's not subject to judicial admission because it is a question of law.

18 THE COURT: Step away from the Tort Claims Act because that brings in the issues of sovereign immunity which also brings in the issues of j ur i sdict ion 22 MR. HOLMAN: Sure.

23 THE COURT: Give me a different example.

24 MR. HOLMAN: Let me give you a different example. There is a case that we cited where there

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were deemed admissions, and one of the deemed admissions was that the defendant breached the contract. Another one of the deemed admissions was that defendant owed a commission. And the Court looked at that as judicial admission and said it doesn't qualify as a judicial admission because it's admitting a question of law. And you can't, in a judicial admission, admit a question of law. So those deemed admissions, the Court said, were of no effect.

10 We cited a number of other cases 11 THE COURT: So lawyers who make arguments in court can't bind their clients as to the concessions they make? Say you are in oral argument and you concede that, well, Your Honor, yes, this law does not apply in this context. They can't be bound by that concession?

17 MR. HOLMAN: Well, you know, I -- and that's what I had trouble with, as well. I mean, frankly, I was -- I was troubled with the idea of Mr. Plummer representing to you that Chapter 74 didn't apply in that situation. What I did was I looked at it under the concept of judicial admission. If -- if I were to judicially admit, as, you know, Mr. Plummer did, that Chapter 74 doesn't apply to Ms. Uduma and Chapter 74 as a matter of law applies to

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Ms. Uduma, I don't think that judicial admission has any effect. I think you can in certain circumstances, you -- you can simplify your case by eliminating certain claims and that sort of thing. Certainly, you know, there are ways you can stipulate and abandon and do Rule 11 agreements and all kinds of things.

7 THE COURT: What's your response, a though, to Plaintiff and Intervenor's argument that, well, if Mr. Plummer hadn't said that we would have accepted the Court's offer to continue trial because that did shape our trial strategy and the way we approached presenting evidence and arguing to the jury?

14 MR. HOLMAN: I, you know -- frankly, I have no response to that. I think that -- that probably -- were I arguing on their behalf, I would probably argue judicial estoppel. I would say that, you know, they relied upon that because he made that statement and therefore he should be judicially estopped from taking the contrary position. But, you know, the argument that they made was judicial admission; and, you know, frankly, I'm just addressing the argument that they made.

24 I believe that what we have to do is look at the statute. And, you know, if we are going

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to hold that Four J's is indisputably a health care provider, which I think we have to do, then the question is: Is the owner of Four J's subject to Chapter 74 or not?

5 I think Mr. Plummer's problem was that when he looked at it he was thinking that they were suing her as a premises owner and that fell outside B the statute. And, you know, I think there was some confusion on his part, perhaps; but I don't think that that changes the nature of how the statute applies.

11 But -- 12 THE COURT: Well, let me just stop you there.

14 MR. HOLMAN: Okay.

15 THE COURT: What record suggests that they were not suing her as the premises owner?

17 MR. HOLMAN: Nothing.

18 THE COURT: Then why do -- why do we care about whether Chapter 74 applies?

20 MR. HOLMAN: Well, because if she is a health care provider then it becomes a health care liability claim even though they are suing her as, quote, a premises owner.

24 THE COURT: How is that? How is she a health care provider as a premises owner?

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MR. HOLMAN: Because -- well, Four J's is a health care provider. She, being an employee, whatever, of Four J's is a health care provider. If they sue her for her failure to provide safety for the people that were the residents, the patients, then that's a health care liability claim. You know, we presented those -- all of these cases that talk about health care liability claims and what constitutes a health care liability claim. And there is a number of cases, including the Marks case that they rely upon and the Omaha Healthcare case, the spider bite case, that the Court is familiar with, where the Court said -- where they tried to make the distinction, well, it's just a premises claim, it's not a health care liability claim. And the Court said, no, it's a health care liability claim because the central focus of this claim, the underlying nature of the claim is that you are suing them for failing to provide safety for the residents.

20 THE COURT: So if someone -- let's take a nurse. She owns her own house. Someone trips and falls in the house and scrapes their knee. And she goes, "Oh, wait. I've got the Bactine in my first aid kit and the Band-Aid." She goes and disenfects it, puts a Band-Aid on it. But, unbeknownst to the person

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who is injured, the house is infected with staph; and he comes down with a staph infection. And he files a premises liability case, defective condition, that the house had a staph infection. The very fact that, just because she is a nurse, she would not be subject to the ordinary premises liability standards for whether or not she was liable for, you know, failing to warn a and make safe her staph-infected house?

9 MR. HOLMAN: Well, you know, I think if you have a situation where you have a nurse and there is a premises problem, somebody falling -- 12 THE COURT: And add in that she works for a hospital -- 14 MR. HOLMAN: Okay.

15 THE COURT: -- a health care institution.

17 MR. HOLMAN: Right. And somebody falls down in her house. That is a, definitely, a premises claim.

20 THE COURT: She is an employee of the heal th care institution.

22 MR. HOLMAN: Yes.

23 THE COURT: She is a health care provider.

25 MR. HOLMAN: But what you do is you look

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at the underlying nature of the claim. The underlying nature of their claim is they're claiming that these folks were residents of the entity which is a health care provider and that these folks were not provided safety.

6 The best case on this -- and, you know, I discussed it in the brief; but, you know, it was a discussed pretrial, which is the brown recluse spider case. What happened is it's a nursing home, and a spider bit one of the residents. And the plaintiff sued saying, "Well, you didn't do proper pest control.

12 And, you know, you should have prevented spiders from getting in here." And that's a premises claim.

14 The Court analyzed that and they said, "Look, if somebody is in your in your facility and they are in custodial care in your facility and you are responsible for providing their fundamental needs --" What are their fundamental needs? Health and safety. And if your argument is you didn't provide them safety, then that's a health care liability claim. And that's what we're -- that's what we're faced with here. ~ The arguments and all of their arguments, the underlying nature of all their arguments is: They were patients and you

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didn't provide them safety from the fire that occurred. You didn't provide them protection from this fire, protection from this harm. You didn't provide for their fundamental needs. That's a health care liability claim.

6 Now, whether they are suing Ms. Uduma as a, quote, premises owner or not, the underlying a nature of the claim is the same as far as Ms. Uduma goes.

10 But let me address, if I may, because this -- this feeds right into the other argument. Say Chapter 74 doesn't apply to Ms. Uduma. What are we left with? They want to sue Ms. Uduma individually.

14 They want to get liability against her, a judgment against her personally as a, quote, premises owner. And you have seen that. I mean, you have seen that in their, in their pleadings. You have seen it in their questioning of Ms. Uduma.

19 They said, "Ms. Uduma, you realize you are being sued as a premises owner?" You saw that in the charge conference and in the language, in the language that they put in the charge about how they wanted liability against her with respect to the condition of the premises, so forth.

25 Can Ms. Uduma be liable as a premises

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owner in this situation? And I submit to you that the case law states that she cannot be liable as a matter of law.

4 Now, the case that I cite is the same case that they cite. It's the landmark case.

6 It's the Johnson County Sheriff's Posse versus Endsley. It's a Texas Supreme Court 1996 case. And a what that case says is that a lessor has no duty to protect one from dangerous conditions that occur on the premises after the, after the place has been leased. There is no duty. Once the lessor leases the premises, there is no duty. And the Court said, the reason for this is because she has relinquished possession of the property; therefore, we will not as a matter of law impose a duty on her.

16 Now, there are three exceptions to that rule, that general rule. And the three exceptions are burdens that the plaintiff has to prove, according to the Endsley case. The only exceptions that they have are these three: One, to show negligent repairs.

21 There is no allegation or proof of that. Number two, concealed defects. No allegation or proof of that.

23 Or, third, that she retained control over a portion of the premises on which the injury occurred. There is no allegation or proof of that.

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Now, in their brief they alleged -- in their brief they allege that she retained control of the fire safety. And they tried to establish that by showing that she took the fire marshal around and that she was the one that dealt with the OMNI group that did the fire alarms. The first problem with that analysis is that there is no showing that she retained any control over a portion of the premises after she leased the property to Four J's. And there is no evidence whatsoever about that, but the second problem is that the evidence establishes the contrary of that proposition.

13 She was asked directly about taking the fire marshal around and "Didn't you do that as the premises owner?" She said, "No. I had leased the property." 17 They asked Mr. Overholt, "Well, didn't you " I can't remember the exact words; but it was something like, "What was your relationship with Ms. Uduma?" He said, "I knew her as the principal of Four J's. Did she ever mention to you that she was the property owner?" He said, "I assumed that, but ~ she never used those words." 24 There is no evidence whatsoever that she as the premises owner, apart from -- you know, as

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the premises owner retained any control over fire safety as if they were retaining control over the premises. So, under the Endsley case and the Endsley case is clear -- there are no exceptions that apply to the general rule. And the general rule is that she has no duty as a lessor; and, therefore, she has no duty and cannot be personally liable for this a judgment.

9 Now, they have also cited and we cited as well Restatement provisions 360 and 361. And I think those are important too because the Restatement provisions talk about retention of part of the land.

13 And both of those provisions talk about retention of part of the land. That's the way that a lessor becomes liable, if the lessor retains control over part of the land. And there is no evidence whatsoever that she ever retained control over part of the land, as if, you know, the lessor would retain control over common areas, for example.

20 Now, they have cited a case called the Osti case. And, if I may, that's the only case that they cited that they say supports liability in this situation against Ms. Uduma. Osti was a case in which the fellow was in a third-floor apartment that didn't have any exits. And the Court said that's a

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structural issue. The lessor had a duty to provide a fire escape, and the lessor didn't do it. So the lessor can be liable for failing to provide a fire escape because that's a structural issue.

5 We don't have that situation here.

6 There is no allegation that there is some kind of structural problem wrong with the house, with the a group home that she leased to Four J's.

9 THE COURT: Could it have been a back door that would not open?

11 MR. HOLMAN: Well, it's a back door that was locked, that had a dead bolt; but that's Four J's problem. Four J's was the occupier of the premises.

14 Once she relinquished possession to Four J's, Four J's was responsible for all of that stuff. There is no allegation here that this was a third-floor apartment without a fire escape.

18 So that -- that case stands for a limited proposition that deals with structural problems. And there are no such problems that are alleged in and that case doesn't have any -- I couldn't find any other cases that relied on that case. But I found plenty of cases that relied on the Endsley case that say that there is no duty on the lessor in this particular type of situation.

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Now, the other thing that I saw was that they have cited something in the brief called the International Residential Code. And we tried to look through the record of the trial and couldn't find any reference to the International Residential Code. So I don't know where that comes from or how it applies or would be promulgated or how -- how it would apply to a Ms. Uduma in this situation. It might apply to Four J's because Four J's was the occupier of the premises, but it wouldn't apply to Ms. Uduma because she had already leased the premises to Four J's.

13 Now, there is another argument that's made about Ms. Uduma personally, which would apply, I guess, if Chapter 74 didn't apply to Ms. Uduma personally. And they say that, that she could be liable personally as the agent of Four J's. And, first of all, that was not what was tried. As the Court knows they tried her being a premises owner.

20 That's how they framed their case. That's how they told the jury that they were trying their case, that she was being sued personally as a premises owner.

23 They never sued her as an agent.

24 They did have alterego allegations, but they never tried those alterego allegations.

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There is a problem with them trying to hold her personally liable as the agent of the corporation. There is a series of cases -- Leitch versus Hornsby, Chron Tri versus J.T.T., Texas Supreme Court cases -- that said that if the corporate agent is accused of violating the same duty that is owed by the corporation then you can't hold the corporate a agent personally liable. And there is a number of cases that have followed that. And, you know, the idea is that they have to have some independent duty that was violated. And there was no evidence or proof of some independent duty that was here. But more importantly -- and I pointed this out at the end of the argument -- is the illogic of it. If it's true that Four J's is a health care provider whose damages are limited to 250,000 per claimant and their argument now is that Ms. Uduma was an agent of Four J's, under the statute an agent of Four J's is also a health care provider and would be subject to the damage caps. But what they are saying in their brief is you should hold that Four J's -- that damages are limited for Four J's, but they are -- you can get unlimited damages against Ms. Uduma as the agent of Four J's.

24 And that doesn't make any sense at all. And it is certainly not the proper construction of the

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statute in that circumstance.

2 If they are saying that she is personally liable as a premises owner, that's one thing. We can deal with that argument. But if she tries to say -- if they try to say she is an agent of Four J's, that takes us right back into Chapter 74.

7 So what we are asking the Court to do this is their motion for entry of judgment -- we are asking the Court, if the Court enters judgment, to reduce the damage caps to 250,000 per claimant. And it's just the noneconomic damages, the 14 million, reduce those down to 250,000 per claimant, pursuant to 74.301, which is the limitation on noneconomic damages. And then, do not enter judgment against Ms. Uduma personally because there is no basis for it.

16 THE COURT: Are you still persisting in this argument that because there was no expert report as to Ms. Uduma that the claims against her should be dismissed?

20 MR. HOLMAN: No. No, we're not. I had made that argument before I saw your comments in the pretrial. And your comments in the pretrial made it clear that that expert report argument was waived, and we're not raising that anymore.

25 THE COURT: All right.

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All right. I've got a couple questions for you.

3 One of the arguments that the Plaintiffs make was that there was a lack of evidence that Four J's was actually licensed at the time of the fire. What evidence do you have in the record that shows that Four J's was actually a licensed a institution at the time of the fire?

9 MR. HOLMAN: I don't think that there is a license on file. But -- and, as we said, the undisputed evidence is that they were operating as an HCS facility under the auspices of DADS. Everybody admitted and all the documents admitted that they are operating under, under the authority of DADS.

15 THE COURT: Don't you have to have a license to operate under the authority of DADS?

17 MR. HOLMAN: Of course. The, the situation in Texas is you can't operate a facility as an HCS facility without a license. And, believe me, if we -- if there was any dispute.about whether we had a license -- which there wasn't throughout the trial -- if there was any dispute, they would have brought that up and said, you are violating the regulations because you are operating this facility without a license. There was never any evidence or

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any dispute that we were properly authorized to act as an HCS facility. And all the documents support that.

3 THE COURT: All right. Those are my questions.

5 Mr. Post.

6 MR. POST: Yes, sir. Your Honor, I would like to begin with the Chapter 74 question regarding Four J's. I think it's important to step back for one moment and see the big picture of the case, see how the issues interact, because Four J's was found 60 percent responsible for this incident.

12 So it would be jointly and severally liable. Four J's does not have any duty argument here. Four J's is depending on its ability now to establish the applicability of Chapter 74. If it fails in that effort, then the Plaintiff and the Intervenor are entitled to a joint and several judgment of the uncapped damages with respect to Four J's. We still, obviously, would want the judgment with respect to Ms. Uduma personally. But that would essentially be a roadmap to a decision of the case.

22 THE COURT: But that would be after 60 percent the percentage liability application, right?

25 MR. POST: With respect to whom, Your

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Honor?

2 THE COURT: Four J's.

3 MR. POST: No. Four J's is jointly and severally liable because 5 THE COURT: But I'm saying that -- you're not saying that you could get 14 million against Four J's? You are saying 60 percent a of 14 million?

9 MR. POST: That would include -- we would be entitled to recover everything.

11 THE COURT: That's with the 6 0 percent of -- 13 MR. POST: Yes, because under Chapter 33 a defendant that is found more than 50 percent liable is -- 16 THE COURT: All right.

17 MR. POST: We wouldn't be entitled to recover twice, obviously. We would never try to do that.

20 THE COURT: It would be up to Ms. Uduma then to seek contribution for -- 22 MR. POST: Exactly. That's exactly right.

24 THE COURT: I see.

25 MR. POST: Now, let me turn to the

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question of whether Four J's is entitled to invoke Chapter 74 because this is a question of conclusive evidence. It's not a legal question.

4 Mr. Holman has cited the statutes that make an RCS program fall within the definition of a health care institution; but the key is he has to establish the factual predicate that Four J's at the a time of this incident was, in fact, an RCS program.

9 We had a full trial. Mr. Holman says repeatedly there was no dispute about this issue, but this is not our burden. It is the Defendants' burden of proof to prove that they are entitled to invoke this statute. They had the burden to prove it, and they did not prove it at trial. And they did not ask for jury findings on it. And so, in this posture, they had the obligation under Rule 279 to establish it conclusively. If it's not conclusively established that Four J's was a certified RCS program at the time of this incident, that defense is waived and they cannot invoke Chapter 74.

21 The proof that you see in their motion I think underscores their full awareness that they did not prove this fact at trial. The issue never came up. When they filed their original response to our motion for judgment, they simply asserted that they

000360

were an HCS program without proof. We filed our response and pointed out that they hadn't established that fact. They had a month in which to dredge the record for that evidence. And they don't have evidence that conclusively establishes that.

6 Here's what I want to emphasize. They have given you four categories of evidence that they a say establishes that they are an HCS program. None of that evidence is conclusive. And it's important to look at this carefully in light of the conclusive evidence standard. Mr. Holman correctly cites a couple of cases that have found HCS programs to be health care institutions; but, importantly, in neither of those cases was the Court faced with the question of whether the defendant proved it was an HCS program.

16 This is that case.

17 Now, the first category of evidence that they cite is a series of exhibits that referred to Four J's as an HCS program. That was their Appendix A. All that is is a series of internal documents from Four J's that internally brand it as an HCS program. But those documents don't say anything about certification; they don't say anything that establishes that, in fact, Four J's was certified at the time of this incident; and, in fact, they don't

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conclusively establish even that it's an RCS program.

2 They simply say Four J's holds itself out as such. A fact finder would not be obligated to believe that evidence. At best, that would have been probative evidence to put before the jury. But they didn't ask the jury to make a finding, and that's not conclusive evidence of anything.

8 In a moment, when I deal with the Web site evidence, I'm going to walk you through the way the administrative scheme works; and you will see there is a certification procedure that involves annual reviews, relicensing. And there is a certificate that has to be issued. They haven't dealt with any of that with these internal exhibits.

15 Their second category of evidence they claim is trial testimony. I read every excerpt of that trial testimony today. None of it says that Four J's was a certified RCS program. Yes, there are references to the procedures of RCS programs. Yes, there are some references to a variety of regulatory proceedings. But nothing in that testimony ever specifically says RCS is a certified program. And even if it did, it's within the province of the trier of fact to believe or disbelieve contested testimony.

25 We would have a chance to impeach and cross-examine

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witnesses on that issue if they had ever put a witness up who gave that testimony. So that can't be conclusive evidence.

4 I would emphasize, among the excerpts that they cited, from the October 18th trial testimony was the testimony of the Plaintiff's expert Mr. Kern, who at Pages 256 to 261 talked some about the a certification procedure and the fact that there are annual reviews and that an institution can loose its certification. And so there is in fact converting evidence in the record that would allow a fact finder to question whether this institution was certified.

13 That's certainly not conclusive evidence as they have to prove it.

15 The third category of evidence -- and this is, I think, the real evidence of a guilty conscience -- is they try to use the Plaintiff's Chapter 74 expert report to prove that they were an HCS program. As the Court knows, that expert report is not in evidence; and so it cannot be used now to establish their defenses as a matter of law.

22 Second, under Chapter 74, which they are trying to rely on, no expert report can be used for any purpose. They would not be trying to rely on that expert report if they believed they had proved

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this defense as a matter of law at trial. They know they didn't.

3 So that brings us to the key to their case, and their whole defense now rests on this one premise. They want you now to reopen the evidence and take judicial notice of two Web sites which they say now, two months after trial, are going to prove a their defense. And I want to talk at some length about what's wrong with that effort to rely on these Web sites.

11 First of all, I don't think it's an appropriate use of judicial notice to ask a Court to judicially notice a fact that is essential to establish an essential element of a theory of recovery or defense after trial. What they are saying is we can come in for the first time after trial and, essentially, establish the element of our defense as a matter of law. Rule 270 says that you cannot take additional evidence on a controversial matter after the jury has returned a verdict. And that's the essence of what they are asking you to do here. And it fits with the judicial notice rule because, even when judicial notice is proper, it's proper only if the fact that is being requested for judicial notice is not within reasonable dispute. They have to

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conclusively establish that the fact exists that they are asking you to take judicial notice of. And these Web site excerpts simply won't do it.

4 If you turn to the actual documents that they have attached, I want to point out a few problems with these Web site excerpts. The Web site excerpts don't say anything about whether Four J's is a certified. That's the key fact, is whether Four J's was in fact an RCS program in accordance with the Social Security Act at the time of this incident.

11 Nothing in these two excerpts say that. In fact, there is a detailed certification procedure 13 Robert, if you will give the Court a copy of this.

15 (Referenced document tendered to the 16 Court and counsel.)

17 MR. POST: -- that an institution has to go through to maintain its certification.

19 I'm going to try to do this efficiently.

20 I don't want to get lost in the regulations, but Tab A is Section 9.151 of the Administrative Code. You will see Paragraph 3 says this statute controls the process for certifying an RCS program. Likewise, Tab B says this subchapter applies to all RCS programs.

25 I think this is exactly the statutes

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that they are relying on.

2 THE COURT: Let me ask, this tab -- these are administrative codes?

4 MR. POST: Correct, Your Honor.

5 THE COURT: You were referring to a statute.

7 MR. POST: Well, I'm loosely referring to the Administrative Code as a statute. It is technically regulatory, but it is the applicable regulatory law here.

11 THE COURT: All right. Thank you.

12 MR. POST: Tab C, Your Honor, in Paragraph (a) -- this is the language upon which Mr. Holman relies. And I agree with him -- establishes that an HCS program is the Medicaid waiver program that is referenced in Section 1915(c) of the social Security Act. We don't quarrel with that conclusion, but they have to establish that they are a certified program.

20 Turn then to Tab D. Section 9.171 sets forth the certification and review procedures.

22 Paragraph (a) makes clear a provider has to be in continuous compliance with the program certification principles.

25 Paragraph (c) points out that

000366

DADS conducts on-site certification reviews annually.

2 And Paragraph (d) provides that a certification lasts for one year only, and it has to be renewed each year.

4 And so the fact that at one point in time this institution was a certified HCS program does not mean that it is "world without end, amen." 7 Turn then to Tab E, which discusses the process for certification. Paragraph (a) assumes the best case. If DADS does a certification review and finds compliance with all certification principles, the program is certified. But that's not the only provision. This is an entire spectrum of what the regulation calls sanctions that deals with the extent of noncompliance. I want to point you to just a couple of potential consequences.

16 They have the burden to show you conclusively that they were certified; so, I'm not going to try and go through this exhaustively. But look, if you would, at the second page of this provision at Paragraph (d), left-hand column, one-half of the way down, "If DADS determines that a program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference DADS does not certify the program." That throws the program into a

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follow-up review process. At the end of which -- and you can see this in Paragraph (2) -- "Based on the results of the follow-up review," Subparagraph (B), if corrective action has not been satisfactorily taken DADS denies certification of the program and implements other sanctions.

7 Without burdening the Court with a lot of administrative parlance, I will tell you that if you go through the rest of this provision you will see heightening degrees of sanctions that, likewise, lead to denials of certification. So it's not the case that simply because one assumes that this program was once an HCS program it is automatically and forever an HCS program.

15 So what do we have then on these Web sites? Again, the Web sites don't say anything about whether HCS is in fact -- pardon me -- about whether Four J's is in fact a certified HCS program, particularly not on this date. They don't say anything about whether certification was present at the time. And I want to talk a little about the details of what you see on the face here.

23 These Web site excerpts specifically say, we're providing this as a service to provide a list of providers. Look at -- at the bottom of the

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first page at the caution.

2 The caution says: This is simply a tool we provide you to help you make a selection. This is not a report of the agency's official business. This is a public service to provide a list of potential providers. And, importantly, look at the last sentence of that caution. This site may include some self-declared and unverified information.

9 The test the Supreme Court has laid out for judicial notice is that the fact you are asked to take judicial notice of must be, quote, verifiably certain. That's what the Supreme Court said in the Eagle Trucking case. This Web site says, we are telling you some of the information on this list is not verifiable. On its very face, it's not appropriate for judicial notice.

17 When you look at the second attachment that they have provided, you see a compliance history.

19 It is littered with noncompliance. We don't know what action was taken by DADS at the relevant time. We don't know what corrective steps were taken. We don't know whether they were certified at the time.

23 Now, perhaps a fact finder could draw an inference had this evidence been properly introduced at trial that they were certified; but it's certainly

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not conclusive evidence that no reasonable mind could dispute. And had they tried to put it on at trial, we would have cross-examined them, not only about what is on this document, but on the nature of the investigations that took place, the review process that took place, and whether there was in fact a certification.

8 I want you to note in this respect the dog that's not barking. They didn't put Ms. Uduma on to testify that they were certified as an HCS program. They haven't given you an official certificate that says on this date they were certified as an HCS program. Mr. Holman says, if I hear him correctly, they don't have it.

15 This is categorically not appropriate 17 MR. HOLMAN: I don't mean to interrupt, but -- -- 19 THE COURT: You will get a chance to respond.

21 MR. HOLMAN: -- I never said that I didn't have it.

23 THE COURT: You will get a chance to respond.

25 MR. POST: They have to prove this fact

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conclusively. This evidence doesn't prove this fact conclusively. And because they can't establish it, they have to live with the consequences. They have not established their right to invoke Chapter 74, which means all the other questions related to Chapter 74 are inapplicable.

7 Now I'm going to touch very briefly on a Ms. Uduma's argument that she can invoke Chapter 74.

9 Mr. Holman says he meets the one argument that we raised in our response that this was a judicial admission made by defense counsel; but, of course, I didn't make one argument in my response, I made three arrangements in my response. I argued it was a judicial admission, but I also argued that it was a waiver because counsel made a stipulation to these lawyers and to the Court that he would not assert a defense. And even if you have a legitimate legal position, a lawyer representing a client can choose to waive that position; and defense counsel did that.

20 And you cannot overcome that by saying the evidence was conclusive. He stipulated he would not assert this defense, and he has to be bound by that ~ stipulation.

24 And the third argument I made, he needed your leave to file an amended pleading asserting

000371

this defense on behalf of Ms. Uduma. You didn't give him that leave because, when counsel on this side of the table asked for a clarification of your ruling, you looked at him and you said: Are you asking for relief for Ms. Uduma? And he said no. He does not have a ruling granting him leave to amend and assert Chapter 74. He has waived that consciously. That a means it's immaterial whether it's a judicial admission.

10 Now, with respect to the judicial admission point, Auld is the only case cited by the parties that deals with the application of Chapter 74; and Auld stands for the proposition that whether you are a health care provider is a fact that can be judicially admitted. And I believe it was admitted here, but that question is not even before the Court.

17 I'm going to touch finally on the duty question with respect to Ms. Uduma. I don't think we're really in any disagreement about the law.

20 I agree with Mr. Holman's statement of the basic principles. I also agree with his statement of the exceptions with regard to the retention of ~ control.

24 The Osti case is the key case on this point. It is a Houston 14th Court of Appeals case and

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it is in the fire safety context. And the Houston court held that control remained with the property owner with respect to safe egress from the property and the tenant didn't have the obligation to provide a safe fire escape. Mr. Holman tries to distinguish Osti, but I submit he cannot distinguish it on its facts. He says that a structural problem in the premises is what Osti is all about. That's what this case is all about. The dead-bolted fire exit without the key is in violation of the applicable property ordinances and creates a premises defect. It is a structural defect. It is the same as a wall because you couldn't exit. And, in addition, there was evidence at this trial that there should have been overhead sprinklers in this facility. That is another structural defect that falls squarely within the Osti rule.

18 The argument that's made today that the control that Ms. Uduma exercised over the premises with respect to the fire escape procedures and the fire safety procedures definitely falls within control of the property. And it was for the jury to decide whether she exercised that control as the property owner or as an agent of Four J's.

25 The jury was asked to apportion fault

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between Four J's and Ms. Uduma personally. The jury made this resolution, that she had that control and she acted negligently. And that finding should be upheld.

5 THE COURT: Thank you. I have got a few questions for you.

7 MR. POST: Of course, Your Honor.

8 THE COURT: All right. Just so that we're all clear here, are Plaintiffs persisting in argument that their claim against Ms. Uduma was in her capacity only as the premises owner?

12 MR. POST: As opposed to, again, capacity as the agent, Your Honor?

14 THE COURT: Or anything else.

15 MR. POST: Well, I hadn't even thought about anything else.

17 THE COURT: Negligence. Negligent activity. The only theory of recovery against Ms. Uduma is against her in her capacity as the premises owner?

21 MR. POST: I believe that is correct.

22 Let me confer with lead trial counsel, since I wasn't at the t r i a l .

24 (Pa use. ) 25 MR. POST: I think that's right, Your

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Honor.

2 THE COURT: Okay. Now, the -- is it the Johnson case -- whatever Supreme Court case -- that talks about a landlord's duty or lack thereof 5 MR. POST: Yes, Your Honor.

6 THE COURT: -- and sets out the three exceptions? It talks about the exception for a a landlord to retain control of a portion of the lease premises. I think the standard thought is the common areas in a condominium or in an apartment complex or whatnot. And your -- as I understand, your argument is that, well, Osti explains that that also addresses control of access and departure, egress and exit -- access and egress -- it's been a long day; excuse me -- of the property. Is that what you are arguing?

17 MR. POST: That's right.

18 THE COURT: Okay. What -- what evidence do I have that Ms. Uduma maintained control of any structural changes to the property?

21 MR. POST: Well, Your Honor, I believe that the testimony was that she, obviously, is the property owner; that she made the decisions about the fire safety systems, the systems that had been installed, the systems that had not been installed

000375

with respect to sprinklers; that she was the individual who worked with the fire marshal on the OMNI systems on dealing with inspections; that she was aware of the dead-bolted door. All of that is evidence from which the jury could draw a conclusion about the capacity in which she was exercising control.

8 Essentially, the argument that's made by Defendants is that she wore two hats; and, therefore, when she undertook this activity, she was necessarily wearing her Four J's hat. I don't think the evidence of that proposition is conclusive. And so it's for the jury to decide. The jury was asked: Do you find Four J's liable? Do you find Uduma liable? And the jury made that determination and apportioned fault.

16 And I think that the jury had enough evidence before it to conclude that Ms. Uduma was acting in her capacity as property owner when she was dealing with these issues.

20 THE COURT: All right. Do you want to make any responsive reply?

22 MR. HOLMAN: Yes, Your Honor.

23 First of all, Mr. Post started his argument by saying that we have some duty to get jury findings about our status as a health care provider.

000376

There is not a single case in Texas jurisprudence that would ask a health care provider to get jury findings on that. That's a matter of the Court's interpretation of statute based on the undisputed evidence.

6 THE COURT: Is there any case that says it's a question of law as opposed to a question of fact?

9 MR. HOLMAN: Well, there is cases that talk about it being a construction of statute as a matter of law. And we would submit that we have undisputed -- 13 THE COURT: What am I construing?

14 I'm just looking at the definition and applying it to the party to determine whether they satisfied the definition, right?

17 MR. HOLMAN: True.

18 THE COURT: Why isn't that a question of fact?

20 MR. HOLMAN: Well, the question -- it's not a question of fact because the facts are undisputed in this instance.

23 THE COURT: They have got a pretty big brief there as to whether they are a health care institution.

000377

MR. HOLMAN: Let me -- let me say why that doesn't apply. The only time that they ever raised this argument about, you know, whether there is certification, or whatever, is after we made the argument post-verdict that Chapter 74 applied. They said, well, you didn't show that you were certified.

7 Well, first of all, everyone admitted, every -- every bit of testimony during the trial admitted that we were an HCS program. There wasn't a single person that got up on the stand or any document they presented that said, wait a minute, they are not an HCS program because they didn't present certification.

13 Had they have done that, we would have presented the certification. And we have the certification to present, if we need to. If we needed to, if that was ever an issue in this case, we certainly would have presented it.

18 THE COURT: But doesn't the definition require there to be -- for the party to ~ be duly certified?

21 MR. HOLMAN: Well, first of all, there is not a single case in Texas that has required a hospital, for example, to come in and present its license in order to be recognized as a health care provider. The only time that would come up is if

000378

somebody said, you don't have a license. Then they would say, well, okay, I have to present my license.

3 But, otherwise, a hospital or an HCS program is operating under the, under the auspices of the State of Texas unless shown otherwise.

6 There is no proof in -- anywhere that they were operating in somehow some kind of a renegade fashion as a treater of mentally retarded adults in Texas without a license or without certification.

10 There is no -- not even an indication or inference of that.

12 THE COURT: But whose burden is this? I mean, you are asking to impose statutory caps on damages. Isn't it your burden to establish a right to those statutory caps?

16 MR. HOLMAN: And -- 17 THE COURT: So why does it matter whether there is any evidence that they are a rogue operation? Isn't it on you all to produce evidence, get a jury finding that would support a judgment by me imposing those caps?

22 MR. HOLMAN: No. There is no -- there is no case that would require us to get a jury finding on that. The Court looks at the nature of the institution and decides whether it qualifies as a

000379

health care provider. And that's those two cases that I showed you where the Court said, the nature of this entity is a home and community-based service program for mentally retarded adults; therefore, it is a health care provider. It is the Court's determination based on the nature of the beast. Just like their argument that somehow we needed to get a jury findings on whether this was a health care liability claim or not, there is no case that so holds. In fact, the Supreme Court cases all hold that the way you determine that is to look at the nature of the underlying claim.

13 That Omaha Healthcare case, the spider bite case, says you look at the nature of the underlying claim in order to determine whether it's a health care liability claim. So you look at the evidence that was presented in this case, and the only evidence that was presented in this case is that they were an HCS program being regulated by DADS. If they are an HCS program being regulated by DADS, they are under Chapter 74. And it's in crystal clear terms in the statute. Now, if they are a health care institution, then they are a health care provider.

24 Now, this whole issue is a make-way issue about whether there is certification or not. If

000380

that were a requirement of the statute, there would be some case somewhere that said, well, you didn't make your certification requirement. But there is no case.

4 THE COURT: Well, let's be clear, though. The certification that I am referring to well, okay. Looking first at the definitions in 74.001 Paragraph (11), it lists a whole slew of B different entities that can be considered a health care institution. And one of those is a hospital.

10 And it doesn't say anything about qualifications or certifications or licensure. It just says hospital.

12 MR. HOLMAN: Right.

13 THE COURT: But you are seeking protection under Subparagraph (I ) 15 MR. HOLMAN: Right.

16 THE COURT: which i Sf from what I can tell, the longest definition under Paragraph (11) 18 MR. HOLMAN: Right.

19 THE COURT: "An intermediate care facility for the mentally retarded or a home and community-based services waiver program for persons with mental retardation adopted in accordance with ~ Section 1915(c) of the federal Social Security Act." 24 So it's not like just any intermediate care facility can qualify for that definition. They

000381

are making it narrow there. So why shouldn't you have to establish that you fall within the narrow confines there?

4 MR. HOLMAN: You will notice -- and this definition doesn't say anything about license, about licensure either, just like the hospital doesn't.

7 THE COURT: But (12)(A), "Health care provider" does.

9 MR. HOLMAN: Right. And what they say is "chartered by the State of Texas." The only way you can operate an HCS facility is to be chartered by the State of Texas. You can't go out and operate an HCS facility without one, and that's clear in all the regulations. And in the regulations that we cited to the Court about HCS programs, the only way that you can be an HCS program is to operate under Section 1915(c) of the Social Security Act.

18 There is no -- there is no dispute about any of this. There is no dispute about what constitutes a home and community-based services program for mentally retarded adults. The regulations require it. And, therefore, we are not required, just like a hospital is not required, to prove that we have a license on file because we are a chartered -- we -- we were operating under the regulations of the State.

000382

And if it were a requirement that you will have to come in and show here is a license, there would be some case that said that, that that was part of the requirement here, to show that, well, wait a minute, that you had a license on file. That's not a requirement. They are just making that up because it's the only attack -- they haven't said -- you s notice, they haven't said they are not a home and community-based services program for mentally retarded adults under Section 1915(c). They haven't said that. If we are, then we qualify as a health care provider.

13 Now, Mr. Post made the statement that I indicated we didn't have such a certification. I never said that. In fact, we have the certification.

16 The problem is that I didn't want to get into the position of asking you to reopen the evidence to show the certification because I didn't think that was part of my burden in order to show that we are a home and community-based services program under 1915(c) because that was never an issue. And it shouldn't be an issue ~ now.

23 THE COURT: Let me ask you something. A doctor is out there treating someone and leaves a sponge in the abdomen, and it turns out that the

000383

doctor had lost his license to practice medicine.

2 Whose burden is it at trial to show that the doctor qualifies as a health care provider?

4 MR. HOLMAN: Well, here's -- here's my belief. You show -- you show the requirements of the statute. You say: I fit this category. I am here. I'm hereby abiding by this statute. a I qualify as a health care provider. Then I think the burden is on the opposing party to say: No, they don't. They don't qualify as a health care provider because of XYZ. Because, once you qualify as a health care provider, then the benefits of Chapter 74 follow.

13 And here's the -- here's the rub.

14 We say we qualify as a health care provider, we fit all the definition requirements under the statute; and they come in and say, well, you didn't prove that you had a certification -- notice they didn't say you don't have a certification -- so you don't qualify as a health care provider. They didn't say: Wait a minute. There is no license; so, you don't qualify as a health care a provider. What they said is: You didn't prove that you had a license; so, you don't qualify as a health care provider.

24 We fit the definition of the statute.

25 And we are definitely chartered by the State of Texas,

000384

because otherwise you couldn't operate such a group home.

3 THE COURT: Do you -- I just want to make sure I'm clear. You agree that this is an affirmative defense of the Defendants that the -- the application of the Chapter 74 damage caps?

7 MR. HOLMAN: Yes, I do.

8 THE COURT: Okay. Let's take it as a different type of case, a contract case. The defendant claims the affirmative defense of fraud, vitiating the contract. Whose obligation is it to establish the seven elements of fraud to support the jury finding to vitiate the contract? Is it up to the defendant to make sure the question is asked as to the seven elements or is it incumbent on the plaintiff to produce evidence that they didn't show justifiable reliance?

18 MR. HOLMAN: I think the answer to that is, of course, they have to present all the evidence of the statute.

21 THE COURT: Then why wouldn't the health care provider in this situation have to establish that they are licensed or certified?

24 MR. HOLMAN: Just like I said, Your Honor, all of the evidence -- there isn't any dispute

000385

about what the evidence is. All the evidence establishes that they are a home and community-based services program for mentally retarded persons under Section 1915(c). No dispute about that. If they are operating as an HCS program, they are operating under the authority of the State of Texas. That's what the regulations tell us.

8 We don't have to come in and show our -- here's our contract, by the way. Here's our contract under which we were operating. Because all -- there is no -- there is not a single bit of evidence that controverts that we were properly operating as an HCS provider. And so it seems to me ridiculous that we would be required as part of our burden of proof to come in and present the licenses under which we are operating if nobody ever contested that, if there was never any dispute that we were properly operating as an HCS program. And there still is no dispute to this day. So they bring up this argument, but they don't have any -- a lick of evidence that we weren't operating properly as an HCS provider.

22 THE COURT: What is your response to their argument that Osti interprets the control exception for landlord liability to issues of access and egress problems?

000386

MR. HOLMAN: Well, I think it's important to recognize that Ms. Uduma leased the property in 2002. The access and egress that they are talking about is a dead bolt on a door. And the dead bolt on the door that we're talking about was in 2008 and whether there was a key available to open that door or not. And the key was -- I think the testimony a was that the key was there but it wasn't in the door, or that sort of thing. That's far different because that kind of duty -- the duty of whether you put in sprinklers after 2002 or not, that was all on Four J's because Four J's was the occupier of the premises.

13 They had possession of the premises. They had the right to control what happened with how they did their fire safety. I think that's clear in the evidence.

17 There was a statement that the fire marshal -- by her taking the fire marshal around was somehow some evidence that she controlled fire safety.

20 And I quote from the record -- and let me just read it into the record here, for the purposes of our record.

22 The question was asked by Mr. Thweatt of ~ Ms. Uduma, "Why did you take the fire marshal to the ~ house?" 25 Ms. Uduma answered, "Because when you

000387

have a four-bed the HCS policy and procedure require that every year the fire marshal will have to come and do inspection to make sure that all the fire systems are working, that the house is in compliance with the State fire code." 6 Question: "Because you owned the house and you had to escort the fire marshal through the a premises, right?" 9 Answer: "No. This was done by Four J's. But I usually take the fire marshals.

11 It has nothing to do with the group home because the house was leased to the company." 13 So the only evidence is that Ms. Uduma was doing it on behalf of Four J's, not as the premises owner. So their argument that somehow she retained control because she escorted the fire marshal around, that that imposed liability on her as a premises owner is incorrect.

19 THE COURT: All right. Do you have anything else to add?

21 MR. HOLMAN: No, I don't.

22 THE COURT: Mr. Sparks, I forgot to ask you if you had anything to add; and I apologize for M that.

25 MR. SPARKS: I do, Judge.

000388

I just want to say that Mr. Holman is incorrect because there was some contest about whether or not Four J's was duly licensed and certified. In fact, Mr. Thweatt was arguing against it when we were challenging the third combined amended answer via our motion to strike. And, if I am not mistaken, you asked him yourself, Judge, whether or not they had a license, certification, registration. And he said that he thought they did. And then you asked him if they attached it to their pleadings, and he said they didn't. Then he gave you a document that was nine years old, and then he said that they were going to come back and give you additional documentation and they were going to prove it up by testimony. That's in the record.

16 Once we got through with the examination of Ms. Uduma, we passed Ms. Uduma; and Mr. Plummer reserved any and all questions that he had about the licensing or anything else related to them being certified until his case in chief. So, at the time, when we got through with Ms. Uduma, there had been nothing in the record that had been elicited from her regarding their corporate status, certification, registration, or anything of that nature.

25 Once Mr. Plummer took her on his case in

000389

chief -- you can look through the record, Judge he asked her not one question, not one, about registration, licensing, certification, any of the things that you asked him about in reference to them proving up whether or not they came up under the Chapter 74 protections. So he never asked her and he never put any additional information into -- no additional evidence into the record.

9 So our position is that they didn't meet their burden of proving and establishing Chapter 74.

11 And, if they didn't meet their burden, then Ms. Uduma, who allegedly is the owner of the company, can't also be a health care provider unless she is a doctor or a nurse. And her testimony is that she was not. She was some type of counselor.

16 What they want to do is say, well, Mr. Plummer waived her ability to have Chapter 74 protections; but that's a conclusion of law, he couldn't do that. But our position is, if, in fact, she never -- if, in fact, Four J's was never established as a health care provider because they hadn't met the requirements of providing a license, registration, or certification from the State of Texas, then Ms. Uduma didn't either. And for him to stipulate that she wasn't a health care provider and

000390

they weren't seeking those protections and of which we detrimentally relied on and passed a continuance that you offered us, they can't come back now and say we're protected under Chapter 74.

5 So I submit to you, Judge, that, not only that Mr. Plummer did not meet their burden after telling you that he would -- you asked him the a question, if I'm not mistaken, two or three times about a license. It's in the record. And he said he was going to give it to you. They never did. And he never asked Ms. Uduma any questions about whether or not she was certified by the Social Security Administration, whether or not she was certified by DADS or anybody else.

15 The issue, Judge, in reference to Ms. Uduma having control over the premises, I think I think the facts that went to the jury were several.

18 One of them was how she instructed the staff to never take the people out the back door because it was always locked; to take them out of a window; take them out the garage; try to take them out the front door, even though that back door had been a designated fire exit. And the only time that door was utilized was when she showed up to open it up for the fire marshal.

25 Other than that, they had been instructed not to open

000391

that door. And she was doing that as the owner of the premises.

3 Mr. Plummer, in his argument to the jury tried to even say this: There is another exit out the side of the garage that they could have went out of.

6 But that wasn't a designated fire exit. The back door had been a designated fire exit, and it had been B closed off and sealed off from our clients being able to exit it.

10 The employee, who ran out of the house when the place was on fire because she was afraid, said that the first thing she did when she thought about trying to extradite these people from the property was that the back door was locked and she didn't have a key. She panicked and she ran out.

16 Additionally, Judge, I want to share with you the issue on the fire sprinkler system.

18 Ms. Uduma instructed the employees how to go in and do these mock fire drills and put down on the reports that they were getting the people out within a two or three-minute time period, even though everybody else testified that wasn't correct in terms of how it practically happened. And we submitted to the jury that they were manipulating, based on Ms. Uduma's instructions, manipulating the time periods to show

000392

that they could get the people out in less than three minutes so they wouldn't have to put the sprinklers systems in. And I submit, Judge, that by her being directly involved in terms of the fire safety system, the exit door, and what the employees should have done to try to get the people out in the event of a fire showed, and the jury ruled, that a she maintained control over those aspects of the property. Therefore, they held her 40 percent liable for the verdict.

11 And I ask you, Judge, to not throw away the hard work that this jury did and the testimony that they heard and the hours of deliberation they did back there, painstakingly, and came up with this verdict. I ask you to submit it -- to sign it and to render it against Four J's and Ms. Uduma.

17 MR. HOLMAN: May I say one more thing, Your Honor?

19 THE COURT: Yes.

20 MR. HOLMAN: First of all, there is not a single case in Texas jurisprudence that holds that in order to prove that you are a health care provider you are required to present a license or a certification, not a single case that does that. We do not believe that it is our burden to have to prove

000393

that since the undisputed evidence establishes that we are an RCS program. And under the law an RCS program qualifies as a health care institution, under the statute, which is a health care provider.

5 Now, if the Court believes or is troubled by whether we are properly certified as an RCS program, despite all the evidence that we a have presented and was presented undisputed in the record that we are an HCS program, then we would ask the Court to reopen the evidence to allow us to present our certification.

12 Mr. Post said he didn't think we had it.

13 We have it. We have certification, and it's certified by the State of Texas. And the certification continues until terminated, and it is good as gold.

16 We can present that evidence under a Rule 270 motion to reopen the evidence, which is subject to this Court's discretion.

19 I am sure that this Court does not want to make a mistake on a matter of law like this when it's involving so many millions of dollars.

22 MR. POST: Your Honor, I will speak only ~ to that one point.

24 We strenuously object to any effort to reopen the record.

000394

Rule 270 explicitly says, II .. provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury." 5 Counsel has essentially admitted they did not prove their defense at trial. And they cannot prove it today.

8 MR. HOLMAN: Let me respond to that point.

10 Whether one is a health care provider or not is not a jury issue.

12 THE COURT: Can you list for me any other affirmative defenses that are questions of law as opposed to questions of fact?

15 MR. HOLMAN: Well, whether it's a health care liability claim is a question of law.

17 THE COURT: I said "other." It's clear what your argument is, that it's an affirmative defense; but it's a question of law, not a question of fact. Can you list for me any other affirmative defenses that are questions of law and not questions of fact?

23 MR. HOLMAN: Whether the Tort Claims Act applies.

25 THE COURT: I'm sorry. That's an

000395

affirmative defense?

2 MR. HOLMAN: It would be an affirmative defense. They would have to allege the Tort Claims Act or it would be waived.

5 THE COURT: All right. What else?

6 MR. HOLMAN: I'm thinking of other statutory remedies. Whether, whether the -- a whether damages should be capped under the punitive damages statute. That wouldn't be an affirmative defense; but it would be as a matter of law whether damages should be capped, and you would apply the statutory remedy. And that wouldn't be a jury issue either.

14 THE COURT: All right. Any further response, Mr. Sparks?

16 MR. SPARKS: Briefly.

17 Mr. Holman indicated that there are cases Brown versus Villegas was cited, 202 S.W.3d 19 803. That talks about a doctor who came up under a provision of health care provider. But there was a LabCorp that was alleging that they also came up under that same protection because they had done business with the doctor, and the Court ruled that they had to prove it. They didn't have a license. They didn't ~ have a certification. They denied Chapter 74

000396

protections.

2 THE COURT: What was the name of that case?

4 MR. SPARKS: Brown versus Villegas.

5 THE COURT: What is the citation for that?

7 MR. SPARKS: 202 S.W.3d 803, 2006, out of San Antonio.

9 THE COURT: It was a San Antonio court of appeals?

11 MR. SPARKS: Yes, sir.

12 MR. POST: Your Honor, I will just add to that, for the Court's benefit. I think the leading case under Article 4590i that sets out the burden on this issue was Webster versus Johnson, which was a First District case from 1987. It's at 737 S.W.2d 17 884. And it held that applying the Article 4590i caps is an affirmative defense that has to be asserted by the defendant, and every affirmative defense where there is any factual component has to be proved by the party that has the burden of proof.

22 MR. HOLMAN: What was the cite on that?

23 MR. POST: It is 737 S.W.2d 884.

24 Any questions, Your Honor?

25 THE COURT: Just a moment.

000397

Brown versus Villegas, Page 806 of the opinion, quote, "With regard to the assertion that LabCorp meets the definition of a health care provider because it is certified by the State of Texas, LabCorp, as the movant, had the burden to present evidence to establish that it is certified by the State of Texas." Cited: Cf. City of Van Alstyne, a Dallas court case that and they describe the City of Van Alstyne case as saying, "Noting burden of proof in a motion to dismiss for lack of jurisdiction is on movant." 12 In Brown versus Villegas, the Court goes on to state, "Without that evidence, we cannot determine whether LabCorp is a health care provider such that the MLIIA is applicable to Brown's claim against LabCorp." 17 All right. First of all, I want to thank everyone. This has been a very intense and very, very well argued set of issues on this. I know there is a lot at stake, and I have taken it very seriously. And I think all clients have been well served by the arguments of the counsel and the efforts that counsel have made on this matter. So, first of all, I want to thank everyone for their ~ efforts on this.

000398

I am persuaded to grant the motion for entry of judgment. I am not persuaded to apply the caps. I am not persuaded to exclude Ms. Uduma from liability.

5 Do you have a judgment for me?

6 MR. THWEATT: I do, Your Honor.

7 (Referenced document tendered to the a Court and counsel.)

9 MR. HOLMAN: Your Honor, prior to signing the judgment, would you entertain a motion to reopen the evidence to allow us to present the certification, if that is the issue?

13 THE COURT: Under 270?

14 MR. HOLMAN: Yes, sir.

15 THE COURT: I will deny that motion for the reasons, the arguments Mr. Post made, the arguments I mean, y'all substantively already argued it anyway, so ...

19 Also, for purposes of the record, I am denying the request to take judicial notice of those Web sites.

22 MR. HOLMAN: Understood.

23 THE COURT: All right. Do you need me ~ to sign an order?

25 MR. HOLMAN: Your Honor, I will present

000399

you with an order on that.

2 THE COURT: All right. Well, you have got it on the record.

4 MR. HOLMAN: Yes.

5 I would like to, just for the purposes of the record, present the Court with the certification from the 8 THE COURT: Well, I -- you can make a bill if you would like.

10 MR. HOLMAN: That's what I am doing.

11 THE COURT: Let me finish with this.

12 Since I have denied your request to reopen, let me finish with this; and then we will take up your bill here in a moment.

15 I am going to -- by the way, it's my standard practice of not specifying what the court costs are in a judgment since the clerk's office generates a tax bill for the court costs. So I'm going to cross that part out of the judgment.

20 MR. THWEATT: Yes, Your Honor.

21 THE COURT: It's not that -- I am awarding court costs to the Plaintiff. I just defer to the clerk's office to calculate the bill.

24 Now, you all have double-checked your calculations here and made sure that you have applied

000400

the right fractions to the jury verdict, right?

2 MR. THWEATT: Yes, Your Honor.

3 THE COURT: All right. Before I sign this, Mr. Sparks, you have seen the proposed final judgment Mr. Thweatt just handed to me?

6 MR. SPARKS: I have, Judge.

7 THE COURT: And you agree with entry of it as he requested?

9 MR. SPARKS: I do, Judge.

10 THE COURT: Okay. Again, as I said to Mr. Thweatt, I'm just crossing out the number for the court costs that are listed in here, not because I'm excluding that, but it's simply because I defer to the clerk's office to generate the tax bill. I am awarding court costs. It's just up to them to calculate the amount.

17 MR. SPARKS: Yes, Your Honor. Thank you.

19 THE COURT: All right. I have signed ~ the final judgment.

21 Mr. Holman, you wanted to make a bill real quick?

23 MR. HOLMAN: Actually, Your Honor, I will do that later. I will present the Court with it later. I have looked at the document; and although

000401

it's a valid document, I want to get it in admissible form to present it before the Court.

3 THE COURT: All right. Is there anything else we need to address in this matter?

5 MR. POST: No, Your Honor.

6 MR. HOLMAN: No, Your Honor.

7 THE COURT: Everybody has got everything a on the record, every argument and every piece of evidence that they think I should be considering or at least gotten rulings on every piece of evidence?

11 Can I hear an oral answer to that, please?

13 MR. HOLMAN: Yes, Your Honor.

14 MR. PLUMMER: Subject to the, the bill.

15 THE COURT: You are going to make a bill on the motion to reopen under Rule 270; I understand that.

18 MR. PLUMMER: Yes, Judge.

19 MR. HOLMAN: We want to present it in admissible form as to the certification that Four J's was operating under during the time in question.

22 THE COURT: Are you going to do that by way of written motion?

24 MR. HOLMAN: Yes, Your Honor.

25 THE COURT: Okay. So I don't need to

000402

schedule another oral hearing on the record for that, do I?

3 MR. HOLMAN: I don't think so. 4 THE COURT: All right.

5 MR. HOLMAN: We will be filing, of course, postjudgment motions; and we will have to have an oral hearing on those. But as far as the motion a dealing with the certification, no. 9 THE COURT: When you file your motion for new trial or whatever motion, go ahead and get a hearing date. Don't wait. Because basically Quee's instructions are that whenever a motion for new trial comes in, she brings it to me; and I set it for hearing regardless. So go ahead and get your hearing because then, you know, we have a little more flexibility as to the particular date you get.

17 All right. Anything else, Mr. Thweatt?

18 MR. THWEATT: No, Your Honor.

19 THE COURT: Again, very well argued, a lot of really interesting issues. I know y'all have a strong interest on how this will be taken up upstairs.

22 I have a strong intellectual interest, at least, in how they are going to resolve some of these issues.

24 So I say good luck to both sides. ~ All right. Y'all are excused. Have

000403

a good weekend.

3 (Conclusion of proceedings.)

000404

THE STATE OF TEXAS COUNTY OF HARRIS

4 I, Kathleen Keese, Official Court Reporter in and for the 269th District Court of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, admitted by the respective parties.

12 I further certify that the total cost for the preparation of this Reporter's Record is $ and was paid by

WITNESS MY OFFICIAL HAND this the 15th day of February, 2012.

Isl Kathleen Keese 20 KATHLEEN KEESE TEXAS CSR NO. 758 21 Expiration: 12131112 Official Court Reporter 22 269th District Court Caroline, 13th Floor 23 Houston, Texas 77002

000405 TABB

000406 CAUSE NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN OF § IN THE DISTRICT COURT JENNY ANN WAGNER, AN § INCAPACITATED ADULT § Plaintiff, § § And § § WYLETTE TAYLOR AS GUARDIAN OF § DERRICK JAMES, AN § INCAPACITATED ADULT § Intervenor, § § vs. § OF HARRIS COUNTY, TEXAS § FOUR J'S COMMUNITY LIVING § CENTER, INC., and ANTHONIA UDUMA § Defendants. § 269th JUDICIAL DISTRICT AMENDED FINAL JUDGMENT On October 17, 2011, this case was called for trial. Plaintiff, Patti J. Wagner, as Guardian of Jenny Ann Wagner, an Incapacitated Adult, appeared in person and through her attorneys announced ready for trial. Intervenor, Wylette Taylor as Guardian of Derrick James, and Incapacitated Adult, appeared in person and through his attorneys and announced ready for trial. Defendant, Four J's Community Living Center, Inc. appeared via its corporate representative and through its attorneys announced ready for trial. Defendant Anthonia Uduma appeared and through her attorneys announced ready for trial.

After a jury was impaneled and sworn, it heard the evidence and arguments of counsel. In response to the jury charge, the jury made findings that the Court received, filed and entered as record on October 21, 2011. The questions submitted to the jury and the jury's findings are attached as Exhibit A and incorporated by reference. The jury found Defendant Four J's Community Living

000407 Center, Inc. 60% responsible for the occurrence, and found Defendant Anthonia Uduma 40% responsible for the occurrence.

The Court hereby renders judgment for Plaintiff and Intervenor.

The Court orders that Plaintiff recover damages from Anthonia Uduma in the amount of $3,236,640, plus prejudgment interest of $169,127.28 (calculated on past damage awards of $2,236,640 times the annual rate of 5% for an accrual period of 552 days (Anthonia Uduma was sued by Plaintiff on Sept 4, 2010) ), court costs, and post-judgment interest at the annual rate of 5% until paid, together with all costs of court, including costs incurred in enforcement and collection, in this behalf expended

The Court orders that, pursuant to Chapter 33 of the Texas Civil Practice & Remedies Code, Plaintiff recover damages from the joint and severally liable Defendant, Four J's Community Living Center, Inc., in the sum of$8,091,600, plus prejudgment interest of$756,012.39 (calculated on past damage awards of $5,591,600 times the annual rate of 5% for an accrual period of987 days (Four J's was sued by Plaintiff on June 26, 2009)), court costs, and postjudgment interest at the annual rate of 5% until paid, together with all costs of court, including costs incurred in enforcement and collection, in this behalf expended.

The Court orders that Intervenor recover damages from Defendant Anthonia Uduma in the sum of $2,404,040, plus prejudgment interest of $182, 114.26 (calculated by multiplying the principal amount of $2,404,040 times the annual rate of 5% times an accrual period of 553 days (Anthonia Uduma was sued by Intervenor on Sept. 3, 2010)), court costs, and post-judgment interest at the annual rate of 5% until paid, together with all costs of court, including costs incurred in

000408 enforcement and collection, in this behalf expended.

The Court orders that, pursuant to Chapter 33 of the Texas Civil Practice & Remedies Code, Intervenor recover damages from the joint and severally liable Defendant, Four J's Community Living Center, Inc., in the sum of$6,010, 100, plus prejudgment interest of$455,285.66 (calculated by multiplying the principal amount of $6,010, 100 times the annual rate of 5% times an accrual period of 553 days (Four J's was sued by Intervenor on Sept. 3, 2010)), court costs, and post- judgment interest at the annual rate of 5% until paid, together with all costs of court, including costs incurred in enforcement and collection, in this behalf expended.

This judgment is final, disposes of all claims and parties, and is appealable.

The Court orders execution to issue for this Judgment.

SIGNED on ~~~~~~~~~ 2012.

PRESIDING JUDGE

000409 CAUSE NO. 2009-40925 WYLETTE TAYLOR, AS GUARDIAN § IN THE DISTRICT COURT OF DERRICK LEON JAMES, an § Incapacitated Adult § Intervener, § § v. § 269TH JUDICIAL DISTRICT § § FOUR J'S COMMUNITY LIVING § CENTER, INC., AND ANTHONIA § UDUMA § Defendants. § HARRIS COUNTY, TEXAS

INTERVENOR'S BRIEF ON DEFENDANT'S CHALLENGE TO THE FACTUAL SUFFICIENCY OF THE JURY VERDICT THAT ESPERANZA ARZOLA WAS NOT NEGLIGENT

COMES NOW, Intervenor, by and through his attorney of record, SHELTON SPARKS, who files this, their Intervenor's Brief on Defendant's Challenge to the Factual Sufficiency of the Jury Verdict that Esperanza Arzola was not Negligent, and shows the court the following.

A. INTRODUCTION FOUR J'S & AND ANTHONIA UDUMA have raised a factual sufficiency issue regarding the jury's verdict that found no negligence on ESPERANZA ARZOLA. Defendant complains that the jury's finding of no negligence for Esperanza Arzola is so against the weight and preponderance of the evidence as to be manifestly unjust. They contend Ms. Arzola intentionally used the lighter to start the fire that caused the injuries to Jenny Wagner and Tanya James. However, it is reasonable and probable, as well as supported by the evidence, that the refusal to find any negligence on Esperanza's part by the jury, is based on the fact that the jury considered that Four J's and Anthonia Uduma were the proximate causes of the Tanya James and

000410 Jenny Wagner's injuries namely due to the following reasons: (1) Four J's was responsible for providing Esperanza access to the lighter; (2) Anthonia Uduma failed to ensure residents of the home had adequate egress to exit the property in the event of an emergency by dead-bolting the back door and not providing a key; (3) Four J's failed to report accurate evacuations times to avoid installing a sprinkler system; and (4) Four J's failed to lead Tanya James out of the home by hand in accordance with Tanya's emergency evacuation plan.

B. FACTS OF THE CASE 1. On September 4, 2008, Ms. Amuche Udemezue, an employee of Four J's was driven from the adult day facility in a van owned by Four J's with the four (4) residents to 16355 Berretta Court. Esperanza Arzola, Elisha Campbell, Tanya James, and Jenny Wagner.

2. As was her custom, when she arrived at the Berretta Court property, she started to get the woman situated for their evening meal, medication, and baths. After preparing their food, feeding them, and getting them prepared for bed, Esperanza Arzola started acting out by not following instructions and refusing to cooperate.

3. Amuche Udemezue alleged Ms. Arzola became combative and attempted to kick the window, thereby causing an injury to herself: A laceration to her foot.

4. As she had been trained to do, Ms. Udemezue called a nurse and reported the incident who informed her to put some hydrogen peroxide on it. Initially, Ms. Arzola resisted and demanded to go to the hospital, however, she later relented and accepted the hydrogen peroxide.

5. As Ms. Udemezue continued with her duties of preparing the lunch for the ladies to take to the day-hab center the next day, she stated Ms. Arzola had calmed herself and came to

000411 her and apologized, saying she was sorry for acting out. Feeling relieved that Ms. Arzola had calmed herself and had gone into her room and possibly to bed, Ms. Udemezue continued with her next day preparations.

6. Soon thereafter, Ms. Udemezue said she heard a loud bang outside the front of the house and went to the front door to investigate.

7. When she opened the door, she saw the front of the house and the inside bedroom of Esperanza Arzola in a blaze and she ran back in, went to the rear bedroom woke Elisha Campbell up and told her to run out the front exit. Immediately thereafter, she went down the hallway towards the bedroom of Esperanza Arzola, Jenny Wagner, and Tanya James. Esperanza was standing in the hallway and she told her to leave the area because of the fire, and she directed her to the front exit.

8. When Ms. Udemezue returned to the hallway to attempt to get Jenny Wagner and Tonya James, she realized the back rear, designated fire exit had a dead bolt lock on it and she did not have a key. Ms. Udemezue, rather than attempting to get Jenny Wagner and Tanya James out of the house, evacuated herself and left both Jenny Wagner and Tanya James in the burning home.

9. The property although designated as a four (4) person group home had no over- head sprinkler system as required because Defendant had been submitting documentation that in the event of a fire, all four residents could be safely be evacuated within three (3) minutes. Ms. Udemezue stated the time on the fire drill reports were incorrect and had been staged by her supervisor who told her to sign the document after she put the times on it showing they had completed the drill within three (3) minutes.

000412 10. When the fire department and EMS arrived, they found Jenny Wagner in her room with multiple burns to her body. They found Tanya James slumped over into the bathtub with multiple second and third degree burns over her body and barely breathing.

11. Jenny Wagner is a paraplegic and could not have gotten out of her bed without assistance to escape the fire and Tanya James was mentally retarded and could not understand the danger of the fire to escape without assistance of someone leading her hand over hand.

12. Ms. Udemezue said she fainted and when she came to, she was in an ambulance, but thought she heard Ms. Arzola acknowledge that she lit the fire with a cigarette lighter.

C. ANALYSIS In Defendant's Answer, they designated Esperanza Arzola as a responsible third party who is alleged to have caused or contributed to the injuries of Tanya James and Jenny Wagner by starting the fire at 16355 Berretta Court on September 4, 2008. Therefore, the Defendant's had the burden of proof to establish this defense. Defendant's now challenge the sufficiency of the jury's verdict that found that Esperanza's actions were not the sole cause of Tanya James' and Jenny Wagner's injuries.

When reviewing a factual sufficiency challenge, the Court must "weigh and examine all the evidence, and sustain the challenge only if the evidence is so weak as to render the jury's finding clearly wrong and manifestly unjust." Cain v. Bain 709 S.W .2d 175, 176 (Tex. 1986), Bay, Inc. v. Ramos 139 S.W.3d 322, 329 (Tex. App-San Antonio 2004 pet. denied.), Reliant Energy Services, Inc. v. Cotton Valley Compression, LLC, 01-08-00148-CV (TXCAl).

In determining whether or not a jury's finding is clearly wrong or unjust, the Courts give great deference to the jury's findings, noting that "it is well-established that the jury weighs the evidence, assesses the credibility of witnesses, and resolves conflicts and inconsistencies."

000413 McGalliardv. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Therefore, the Courts will not "substitute their opinion for that of the trier of fact merely because they might have reached a different conclusion." Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Klekar v. S. Pac.

Transp. Co., 874 S.W.2d 818, 827 (Tex. App-Houston; [l 5t Dist.] 1994, writ denied).

D. SUFFICIENCY OF EVIDENCE In the present case, the jury heard testimony that Esperanza started the fire at 16355 Berretta Court on September 4, 2008. However, they jury also heard evidence that (1) Four J's was responsible for providing Esperanza access to the lighter; (2) Anthonia Uduma failed to ensure residents of the home had adequate egress to exit the property in the event of an emergency by dead-bolting the back door and not providing a key; (3) Four J's failed to report accurate evacuations times to avoid installing a sprinkler system; and (4) Four J's failed to lead Tanya James out of the home by hand in accordance with Tanya's emergency evacuation plan.

1. Four J's was responsible for providing Esperanza access to the lighter In the trial, Anthonia Uduma testified that the lighter Esperanza used to start the fire was provided to her by Four J's. Specifically, Anthonia Uduma testified:

Q. Okay. So staff buys cigarettes. What about when they want to smoke? How is that handled?

A. They have cigarette breaks where they have a -- apparently there is a detailed process how it goes. But I know they go to the day-hab director, and that day-hab director or the trainers will pass the cigarette. They will all be outside and then they will smoke. After that 15-minute cigarette break, they will take the lighters and everyone will go back in inside. I can't really tell you the protocol.

000414 Q. Okay. But the protocol is that they are not supposed to have lighters and matches and leave the with grounds with that; is that correct?

A. That's correct.

Q. You have heard testimony, I believe, that Arzola hid her lighter in her bra. Do you remember that testimony?

A. Yes, sir.

Q. And that's the one she used to start the fire?

A. Yes, sir.

4RR144.

Given Ms. Uduma's testimony regarding Four J's negligence in allowing Esperanza access to the same lighter Esperanza used to start the fire; the jury could have concluded this amounted to the proximate cause of Jenny Wagner's and Tanya James' injuries.

2. Anthonia Uduma failed to ensure residents of the home had adequate egress to exit the property in the event of an emergency by dead bolting the back door and not providing a key

Four J's knew the back door fire exit had a dead bolt lock on it, which needed a key to open from the inside. Per conflicting testimony at trial, the CEO, Anthonia Uduma, said the key was always kept in a kitchen drawer, her supervisor Inya Ogbonne said the key was kept on a nail hanging above the door. The staff, Amuche Udemezue and Irondi Chiaka stated there was no key that they had exit through the front door during emergency evacuations.

Given the conflicting testimony, the jury weighed the credibility of each witness, and most likely concluded there was no back door key to the dead bolted back door. Coming to this

000415 conclusion would have certainly weighed heavily on the jury's decision to find the premises defect of the back door being dead bolted with no key, was the proximate cause of Jenny Wagner's and Tanya James' injuries; especially since Amuche Udemezue testified that she panicked because of the lack of egress: "I panicked because I, I got just one exit. I would have tried my best ifl had another door in that house." 3 RR 215.

Also, in addition to the locked back door, Amuche Udemezue testified that the garage door was, broken and could not be used to escape. 3 RR 215. She had only one way to get four people out of the house. 3 RR 215.

3. Four J's failed to report accurate evacuations times to avoid installing a sprinkler system During the trial, Ms. Uduma testified that the 16355 Berretta Court property was not required to have a sprinkler system. However, the property although designated as a four (4) person group home had no over-head sprinkler system as required because the Defendants had been submitting documentation that in the event of a fire, all four residents could be safely be evacuated within three (3) minutes. Ms. Udemezue stated the time on the fire drill reports were incorrect and had been staged by her supervisor who told her to sign the document after she put the times on it showing they had completed the drill within three (3) minutes.

Again, due to the Defendants' failure to ensure the proper safety measures were in place to protect the residents, the jury could have also construed this as a proximate cause that led to Jenny Wagner's and Tanya James' injuries.

000416 4. Four J's failed to lead Tanya James out of the home by hand in accordance with Tanya's emergency evacuation plan

The jury heard testimony that there were specific instructions regarding how to remove Tanya James and Jenny Wagner in the event of a fire. However, as previously indicated, Ms. Udemezue testified that instead of removing Tanya James and Jenny Wagner from the home in accordance with their emergency evacuation plans, she "panicked." Four J's failure to conduct proper fire drills, and provide Ms. Udemezue with a key to the back dead-bolted door, could have reasonably resulted in the injuries to Jenny Wagner and death to Tanya James.

E. CONCLUSION It is clear for a variety of reasons, given the gravity of Four J's and Anthonia Uduma's negligence, that after weighing all the evidence, it is quite plausible that the jury would find that Four J's and Anthonia Uduma were the only proximate causes of Tanya James' and Jenny Wagner's injuries, thereby superseding the fact that Esperanza started the fire. Therefore, it is incorrect for the Defendants to state that the injuries to Jenny Wagner and death of Tanya James were solely caused by Esperanza Arzola.

The facts clearly support the jury's verdict in this case. Therefore the jury's refusal to find that Tanya James' and Jenny Wagner's injuries were solely caused by Esperanza, is not so against the overwhelming weight of the preponderance of the evidence as to be manifestly wrong and unjust, and is factually sufficient to support the Judgment.

000417 F. PRAYER FOR THESE REASONS, Intervenor asks the Court to Deny the Defendant's Motion for Judgment Notwithstanding the Verdict or in the alternative, their Motion for New Trial.

Respectfully submitted, Shelton Sparks & Associates L.L.C. By: Isl Shelton Sparks SHELTON SPARKS Texas Bar No. 06507160 Tiffany Harvey Texas Bar No. 24067343 Cordell Street Houston, Texas 77009 Telephone (713) 862-5533 Facsimile (713) 862-4913 Attorneys for Intervenor

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT ON March 16, 2012, a true and correct copy of the forgoing document was served on the following via facsimile, U.S. mail, and/or electronic mail: Plummer & Kuykendall - James C. Plummer Beck, Redden & Secrest, LLP-Russell S. Post 4203 Montrose Boulevard, Suite 270 1221 McKinney, Ste. 4500 Houston, Texas 77006 Houston, Texas 77010 Facsimile: 713-522-3605 Facsimile: 713-951-3720 Phone: 713-522-2887 Phone:713-951-3700 Terry & Thweatt, P.C. - Lee Thweatt The Holman Law Firm, P.C. - David W. Holman One Greenway Plaza, Ste. 100 24 Greenway Plaza, Ste. 2000 Houston, Texas 77046 Houston, Texas 77046 Facsimile: 713-600-4706 Facsimile: 713-400-4841 Phone:713-600-4710 Phone:713-400-4840

Isl Shelton Sparks SHELTON SPARKS

000418 Filed 12 March 16 P3:25 Chris Daniel - District Cieri< Harris County ED101J016781870 CAUSE NO. 2009-40925 By: inna medina PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF WAGNER, AN INCAPACITATED ADULT, § § Plaintiff, § § § HARRIS COUNTY, TEXAS v. § § FOUR J's COMMUNITY LIVING CENTER, INC.; § ANTHONIA UDUMA; and GODFREY UDUMA, § § Defendants. § 269TH JUDICIAL DISTRICT

PLAINTIFF'S BRIEF ON JURY'S FAILURE TO FIND NEGLIGENCE IN QUESTION 1

Plaintiff Patti J. Wagner ("Ms. Wagner"), appearing as guardian of Jenny Ann Wagner ("Jenny Ann"), files this brief to respond to a specific ground for new trial.

FACTUAL BACKGROUND AND SUMMARY OF ARGUMENT Defendants have moved for a new trial on a variety of grounds, including that the jury's failure to find Ms. Arzola negligent is against the great weight and preponderance of the evidence. 1 Their argument should be rejected because it ignores all the evidence that supports the jury's verdict, including evidence that Four J's acts of negligence were the only proximate causes of Ms. Wagner's injuries for four independent reasons: (1) Four J's bore responsibility for Ms. Arzola's access to the lighter; (2) Four J's knew that Ms. Arzola was seriously troubled and needed extra supervision; (3) Four J's failed to remove Ms. Wagner first, according to fire escape plans; and (4) Four J's bore responsibility for the lack of adequate egress. For any of these reasons, the motion should be denied.

Defendants characterize the jury's answer regarding Ms. Arzola as a "finding of no negligence," which is technically incorrect. Instead, the jury "failed to find" Ms. Arzola negligent when it answered "No" to Question l .c.

In other words, Defendants failed to carry their burden to secure an affirmative finding on their defense.

000419 ARGUMENT I. The Standard of Review Credits The Evidence In Support of the Verdict.

Defendants designated Ms. Arzola as a responsible third party and had the burden of proving her negligent. When a party challenges the factual sufficiency of an adverse jury finding (or a "non-finding") on an issue where it had the burden of proof at trial, a reviewing court weighs all of the evidence, both for and against the issue, setting aside the verdict only if the evidence supporting it is so weak or the finding is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. See Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 647-52 (Tex. 1988) (courts apply same standard ofreview to "non-findings").

The general rule is that a jury verdict is entitled to great deference by the reviewing court unless the record reflects that the jury is motivated by passion, prejudice or something other than conscientious conviction. See Lehmann v. Wieghat, 917 S.W.2d 379, 385 (Tex. App.-Houston [14th Dist.] 1996, writ denied). The verdict cannot be set aside merely because this court would have weighed the evidence differently or reached another conclusion, but only if it is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Id. Trial courts are now required to "specify the reasons" for refusing to enter judgment on a jury's verdict and ordering a new trial. In re Columbia Med Ctr. Of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 215 (Tex. 2009). "The reasons identified should be clearly identified and reasonably specific." Id. Thus, as with the appellate courts, which must detail the evidence in support of and against a verdict, trial courts must give due respect to jury verdicts by demonstrating that they have fully credited the evidence supporting a verdict before granting a new trial.

000420 II. Determinations About Causation and Responsibility Are Squarely For the Jury.

In addition to using the correct standard of review, it is also important to be mindful of the jury's province to weigh evidence and make fact-findings about causation and responsibility. "The rule is well settled that the question of proximate causation is one of fact peculiarly within the province of the jury, and the jury finding on it will be set aside only in the most exceptional cases." Glover v. City of Houston, 590 S.W.2d 799, 801 (Tex. Civ. App.-Houston [14th Dist.]

1979, no writ) (citing Enloe v. Barfield, 422 S.W.2d 905 (Tex. 1967); Pate v. Southern Pacific Transp. Co., 567 S.W.2d 805 (Tex. Civ. App.-Houston [14th Dist.] 1977, writ refd n.r.e.)). "Moreover, whether a particular act of negligence is a cause in fact of an injury has been said to be a particularly apt question for jury determination." Farley v. MM Cattle Co., 529 S.W.2d 51, 756 (Tex. 1975) (citing Prosser, LAW OF TORTS§ 41at237 (4th ed. 1971)).

In determining which acts and omissions are a cause of an event, jurors are entitled to think of causation "'in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called 'philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred.'" Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (quoting Restatement (Second) of Torts 431, comment a (1965)).

Jurors may evaluate an array of potential causes and isolate the "true cause" of an injury. See Parker v. Seligman & Latz, Inc., 429 S.W. 159, 162 (Tex. Civ. App.-Houston [14th Dist.]

1968, no writ) (holding jury's negative finding on proximate cause was supported by substantial evidence and should not have been disregarded by the trial court). These principles require a reviewing court to give the jury every bit of deference. The jury sits to make a collective judgment where reasonable minds can differ, and the evidence here offers sound reasons to determine that Ms. Arzola bore no responsibility for the injuries.

000421 III. The Evidence Supports the Verdict that Defendants' Actions Were The Only Proximate Causes of Ms. Wagner's Injuries.

Much of this trial involved evidence of the various ways Defendants were negligent.

They were negligent in ways that would have prevented the fire entirely; they were negligent in reacting to the fire as it was occurring; and they were negligent in ways that would have allowed safe egress from the Berretta Court property. When dissecting this tragedy in hindsight, there are a number of reasons a jury could reasonably determine that Defendants should bear all of the responsibility for Ms. Wagner's injuries. Defendants were negligent from every vantage point, and the jury had discretion to determine their actions were the only proximate causes of the mJunes.

Nevertheless, Defendants sought to shift responsibility to their mentally retarded client, Ms. Arzola, who started the fire. Defendants fail to acknowledge the evidence that: (1) Four J's bore responsibility for Ms. Arzola's access to the lighter; (2) Four J's knew that Ms. Arzola was seriously troubled and needed extra supervision; (3) Four J's failed to remove Ms. Wagner first, according to fire escape plans; and (4) Four J's bore responsibility for the lack of adequate egress.

Any one of these reasons is an independently sufficient basis to determine that Defendants had not proven, by a preponderance of the evidence, that Ms. Arzola's actions were a proximate cause of Ms. Wagner's injuries, and that Defendants actions were a sole or superseding cause.

The first two reasons would have prevented the injuries by preventing the fire. The last two reasons would have prevented the injuries by removing the clients from the danger. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451-52 (Tex. 2005) (plurality opinion) (explaining that subsequent conduct by another party can interrupt or "supersede" a different actor's negligence). Either way, the jury could determine that Four J's was responsible.

000422 Question No. 1 required the jury to make determinations about proximate cause and to determine whether any causal connection had been destroyed by a "new and independent cause." In light of the Court's Charge, we will summarize the evidence that the jury was entitled to credit.

A. Four J's bore responsibility for Ms. Arzola's access to the lighter.

The jury could have found Four J's entirely responsible for Ms. Wagner's injuries based on the simple fact that it negligently monitored Ms. Arzola's access to an inherently dangerous product. Four J's clients were not supposed to have access to matches and lighters at all.

Ms. Uduma testified that Four J's had a rule on this point: Q. What about clients, either at the home or at the activity center, possessing lighters and matches? Did you have a rule on that?

A. Yes, sir.

Q. And what was that rule?

A. That the clients cannot have lighter.

Q. Okay. What about matches?

A. They cannot -- nobody gives them matches.

4 RR 144; see also 4 RR 143.

Ms. Uduma also explained to the jury that they accommodated clients who needed access to a lighter by having the staff handle the lighter for them: Q. Were cigarette lighters prohibited in the Beretta Court Home?

A. Yes. We do not allow cigarette lighters. It's not prohibited, but we do not allow the clients to hold a cigarette lighter.

Q. It's not prohibited, but we don't allow the clients to have a cigarette lighter. Is that your testimony?

A. That's my testimony.

000423 Q. Are there circumstances where a client might be permitted to hold a cigarette lighter in the Beretta Court Home that you owned?

A. No. Q. So doesn't that make it prohibited?

A. It doesn't because the staff or clients that smoke, we train the employees to hold the cigarette lighter so that they will be able to go outside and light it for them and then retain the cigarette lighter.

1RR61-62.

Given Ms. Arzola's behavioral history, it would have been particularly dangerous to permit Ms. Arzola to have access to a lighter. Ms. Uduma knew this and explained that they did not allow Ms. Arzola to "keep" a cigarette lighter: Q. Dr. Lockwood never approved Ms. Arzola having a cigarette lighter in her personal possession, did he?

A. No, he did not. And that's why we did not allow her to keep a cigarette lighter.

1 RR62.

Because the rules prohibited clients from keeping lighters, the jury could easily have concluded that it was Four J's negligence that was the sole cause of the fire. Ms. Uduma could not refute this possibility: Q. If Esperanza Arzola had a cigarette lighter, Ms. Uduma, on the night of the fire, the only place she could have gotten it from is from Four J's; isn't that right?

A. I wasn't there, and you don't want me to say anything based on hearsay. So I was not there. I don't know.

Q. You don't want to speculate that your company may have been the one that provided Ms. Arzola with the incendiary device that killed someone and later caused injuries that we have seen pictures of that were lifelong permanent scar.

You don't want to admit that, do you?

A. No, that's not right.

000424 RR 158-59. The jury also heard that no one ever patted down Ms. Arzola or checked her room, even though she was on medications for psychotic behavior and had previously attempted suicide. 3 RR 64-65.

Four J's negligently allowed an inherently dangerous product to find its way into the hands of a client with a child's mental capacity and a violent track record. By negligently monitoring its clients' access to lighters, Four J's violated its own rules and the common law standard of care. But for this negligence, there would never have been a fire.

While this negligent act is not the only "but for" cause of the injuries, the jury could have determined that Four J's was in so superior a position to prevent the fire that holding its mentally incompetent client responsible for her subsequent actions would be inherently unjust. The jury reasonably rejected Four J's attempt to escape or shift liability because a person under its care did something that Four J's was charged with preventing.

B. Four J's knew Ms. Arzola was seriously troubled and needed extra supervision.

Four J's was also negligent in failing to properly supervise Ms. Arzola. Four J's knew of her deeply disturbed nature-both historically and on the night of the fire, and Four J's failed to take any steps to ensure that Ms. Arzola was not a danger to herself or others.

First, the jury heard from a psychologist that Ms. Arzola was severely impaired mentally and had a troubled past, coupled with mental disorders such as schizophrenia and bipolar disorder. The problems afflicting Ms. Arzola were extensive. Dr. Gollaher testified: • Ms. Arzola has an intelligence level in the retardation range (her IQ is 40, whereas the average U.S. population has an IQ ranging from 90-110). 3 RR 278.

• Because of her extremely low IQ, she cannot live on her own and will need assistance for the rest of her life. 3 RR 280.

000425 • She was sexually abused by her parents and placed into a group home at age 9. 3 RR 281.

• She has difficulties with impulse control and aggression. 3 RR 281.

• She has been diagnosed with schizophrenia and bipolar disorder. 3 RR 281.

• She admitted to using crack cocaine, marijuana and sharing needles. 3 RR 281-82.

• She prostituted herself for money or favors. 3 RR 282.

• She displayed bipolar, manic and psychotic behavior. 3 RR 283.

• On a psychological assessment test, she tested "seriously impaired." 3 RR 284-86.

• She had a history of hitting, attempting to stab others, and destroying property. 3 RR 287.

• Her behavioral problems are "severe," and her aggression had the potential to harm herself or others. 3 RR 287.

• She cannot correctly state the alphabet. 3 RR 287.

• She has attempted to commit suicide by cutting herself. 3 RR 287-88.

Additionally, Dr. Gollaher testified about Ms. Arzola's inability to understand her actions, the charges against her, and the criminal trial process: • Ms. Arzola thought she had "murdered her home." 3 RR 288.

• She said she had tried to kill people because they are not nice to her, but she denied that anyone had died in the fire. 3 RR 289.

• In a second interview, she admitted to setting a fire but again denied that anyone had died. 3 RR 289.

• She was very confused about the concept of guilty. 3 RR 289.

• She did not understand the role of a judge or her defense lawyers. 3 RR 291.

000426 For these reasons, Dr. Gallaher concluded that she was not competent to be criminally tried.

3 RR 298. The criminal judge granted Ms. Arzo la's Motion Suggesting Incompetency, Mental Retardation and Insanity, see Tab B (PX 57), and ultimately determined she was not competent.

Given these issues, it is not surprising that the Four J's staff members who knew Ms. Arzola best were scared of her. Ms. Irondi testified: Q. During your experience with Ms. Esperanza Arzola, was she capable of hurting people?

A. I think so, because I know she fought with one of the, one of the staff sometime, pulled her hair.

Q. Did you feel safe with her in the house?

A. No. Q. You did not?

A. Not really.

3 RR 115-16.

Similarly, Ms. Udemezue testified that, around Ms. Arzola, she was "very scared": Q. And did you have a good relationship with Jenny also?

A. I don't have problems. I don't know. She sings for me. She -- I don't know, I'm very, very close to all of them.

Q. Did that also include Esperanza Arzola?

A. Esperanza is, is -- she, she is something else. She acts up all the time. Maybe because of her health condition. So I'm not close to her. I distance myself from her. Whatever she say I should give her, I give her. That's it.

Q. Now, you were -- was she ever aggressive toward you?

A. Yeah, she was. Yeah, at times she is.

Q. Were you afraid of her?

A. I was very scared.

000427 Q. Why?

A. Well, the lady, all those ladies that were there before me, told me if -- I should be very, very careful of Esperanza and that she, she can do and do. Anything she wants in the house, I should give her. And I should be careful because she can beat me up, she can kill me here and nobody -- they told me all that. So I was scared of her. And also there was -- the, the lady that left before me, the one that had- MR. PLUMMER: Objection, hearsay.

3 RR 167-68.

Four J's not only had direct experience with Ms. Arzola, but it also had a detailed Individual Service Plan, describing Ms. Arzola's history and her extensive problems and behavioral issues. See Tab A (PX 44). Critically, that Plan outlined a number of behaviors that required extra supervision to ensure everyone's safety:

Behaviors: 1. Esperanza is non"'.c9mpliant most of the time.

2. Inappropriate behaviors observed were elopement,· fighting with staff and consumers, destroying property, and. verbally abusing staff and peers.

3. Esp7ranza has a h}story of illicit drug use, sexual promiscuity, sexual abuse, smc1dal attempts, pica, mood swings and non compliance.

4. Espe~za parti:ipates in a behavior therapy program targeting deceleration of aggression, self mJury, property destruction, and eloping

Given this history, Four J's employees knew to be especially vigilant with Ms. Arzola.

They had heightened reason to be vigilant on the night of the fire, because Ms. Arzola had been acting out. 3 RR 176-78. First, she broke a window. 3 RR 176. The staff member, Ms. Udemezue, had to call "everybody", including Ms. Arzola's case manager. 3 RR 176. Then, while all this was going on, Ms. Arzola said she wanted to be taken to the hospital. 3 RR 178- 79. Dismissing this sign, Ms. Udemezue told her that she would take her to the hospital tomorrow. 3 RR 178-79. Ms. Arzola then went to her room and closed her door. 3 RR 179-80.

In this troubled state, she was all alone.

000428 While Ms. Arzola was alone in her room with the door closed, Ms. Udemezue busied herself with the cooking and laundry. 3 RR 179 ("I was busy doing -- because I still have to cook the food that they will take to the day-hab. I still have to wash their clothings, you know.

So I continue with what I was doing. I didn't know she went inside to plan."). Ms. Udemezue was not watching Ms. Arzola or aware of what she was getting into behind closed doors.

The jury could consider this evidence to reach a number of conclusions about what happened next. First, it could determine that Ms. Arzola should be held to a lower standard of care than Four J's, because she was not competent to understand her actions or their consequences. It was not foreseeable to Ms. Arzola that if she set a fire that someone could be hurt. Indeed, this point was not something she could understand even in hindsight. In two separate interviews with a psychologist, Ms. Arzola denied that anyone died on the night of the fire. 3 RR 288-89. This was not a self-defensive attempt to absolve herself of liability, as she confessed to setting a fire; she just was not competent to understand what happened next. Id. Based on the extensive evidence about Ms. Arzola's mental state, the jury could have determined that she was not negligent or that the consequences of her actions were not a proximate cause because they were not foreseeable.

The jury could also determine that Four J's was in the sole position of preventing Ms. Arzola from starting a fire, such that Four J's negligence trumped Ms. Arzola's actions. Four J's knew about (1) the long list of details making up Ms. Arzola's troubled past; (2) her psychotic mental state and behaviors; (3) her previous suicide attempts; (4) her medications; (5) her antisocial and aggressive behavior on September 4, 2008; (6) her denied request to be taken to the hospital; and (7) her decision to go to her room and close the door. A jury could reasonably determine that this body of knowledge made Four J's-and not its client-solely responsible.

000429 C. Four J's failed to remove Ms. Wagner first, according to fire escape plans.

Even if the jury believed that Ms. Arzola was responsible for causing the fire, it could reasonably believe that Four J's subsequent actions were a superseding cause of the injuries.

Perhaps the saddest piece of testimony was Ms. Udemezue's confession that she panicked instead of trying to remove her most helpless clients from the house: Q. When did you first become aware of the fire?

A. I heard the big, the alarm, you know, go off. So I heard a big bang, boom, like somebody pulled iron or something. I heard a big bang, you know. Then my mind went outside. I said again, let me find out what's happening. I rushed outside.

When I rushed outside, I saw -- because Esperanza's, Esperanza's window is very close to the front door. So I, I kind of saw the -- it was -- I mean, the fire was too much. I couldn't believe myself. And I rushed back. I came inside. I shut the door.

I was confused. I didn't know what to do. I went to Elisha's room. When I went to Elisha's room, all of them they were sleeping. I started shaking her. Excuse me. I'm sorry. (Crying.) I shook her.

Q. After you shook her, what happened?

A. She got up. I took her outside. I took her outside. So when I took her outside, I came back. Already, Esperanza had already opened that door. So when I came back, I was, like, going towards Jenny and -- Jenny and Tanya's room. When I came back, there's -- I looked at that door. I started panicking when I looked at Esperanza door. And it dawned on me that all of us, because the fire is very close to Esperanza's -- the window is very close to Esperanza -- the front door. So when I saw that and I don't have the key, and my hands, my legs started shaking.

Q. So are you saying that you realized - are you saying that you realized that the back door, the exit, is that what you are talking about?

A. Yes.

MR. PLUMMER: Objection, leading.

THE COURT: Overruled on this one.

Q. (By Mr. Sparks) Are you saying that you realized the back door, the exit, was not an option for you to leave out of, had you been able to get Jenny and Tanya?

A. I got only one door there. If that fire gets to that front door, that's it. We are finished. The garage door is broken. That door and the garage, you know, one

000430 small door. I don't have the key. I have access to just only one door. So when I looked at that thing and I said, if anything happens, me too, I will get burned. That was when my hands and legs started shaking. I became -- I started panic.

Q. What happened after that, ma'am?

A. Then I couldn't use the house phone because I was actually -- I was moving around. All the calls I made was on my Cricket phone. All the calls I made, all the calls I made was on my Cricket phone. Then I had to use the same Cricket phone.

When I stepped -- it was then that I started calling Esperanza, Esperanza. Then we went out together. I was in front of that door, using my Cricket phone. Well, my hands were shaking, my legs. I was shouting and nobody -- because that place is a lonely place, you know. You hardly see people moving around. But I went to the neighbors. I was shouting. Nobody came out. Then I knew the time -- I runs across to the other side to -- was shouting so that people will come out and come and help me. But I can't remember. That was the last thing. Even when the, when the, the 911 came, I passed -- I think -- I didn't know anything again. I was -- I woke up in the ambulance.

Q. So you passed out?

A. Yeah.

3 RR 181-82.

Ms. Udemezue testified that she could have gotten Ms. Wagner out, except that she panicked: Q. And as you had been instructed, you could have gone in Jenny's room, lifted her up, put her on, on the floor on, on a comforter or blanket, and drug her out, right?

If she was real heavy, right? You could have done that.

A. I could have. I could have done that.

Q. So all the training in the world would not have helped you in this situation because you panicked; is that right?

... [overruled objection and question read back] A. Yes ....

3 RR 213-15; see also 3 RR 248-49 (fire extinguisher was not used).

000431 Had Ms. Udemezue had the wherewithal to follow the rules, she would have removed Ms. Wagner first: Q. If Jenny is not the first person removed from the home, that means that Four J's rules were not followed, right?

A. Correct.

Q. That means one of Four J's employees didn't do their job, right?

A. Correct.

Q. The standard of care, I think you are telling us, requires that Jenny be removed first, right?

A. Correct.

4RR39.

This evidence easily serves as a basis for the jury to determine that Ms. Wagner could have safely escaped the fire if Four J's had acted reasonably in evacuating its clients. Had Four J's acted according to the standard of care, this would be a property damage case. It was Four J's negligence that turned this case into one for wrongful death and personal injuries.

This is no minor point, as the jury was specifically asked about "negligence, if any, [that] proximately cause[d] the injuries in question." Court's Charge, Question 1. The jury might have determined that Ms. Arzola caused the fire, but that only Four J's negligence caused the injuries.

The Pattern Jury Charges note that some cases arise in factual settings where there is a meaningful distinction between causing an "occurrence" and causing an "injury," and this is such a case. See, e.g., Texas Pattern Jury Charge 4.1 comment ("Use of 'occurrence' or 'injury'").

The jury was well within its discretion to determine from the evidence that Ms. Arzola did not proximately cause "the injuries in question."

000432 Additionally, the Court's Charge instructed the jury that it could consider whether a cause was a "new and independent cause," which "destroys the causal connection" and "thereby becomes the immediate cause of such occurrence." A new and independent cause supersedes prior causes and relieves the prior actor of liability. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450-51 (Tex. 2006) (plurality opinion). The instruction's purpose is "to advise the jurors, in the appropriate case, that they do not have to place blame on a [particular actor]" if the true cause for the accident lies elsewhere. Dillard v. Texas Elec. Co-op, 157 S.W.3d 429, 432 (citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)).

Here, the jury could reasonably determine that Four J's negligence in failing to remove Ms. Wagner first according to its fire safety plans cut off any negligence in setting the fire. This conclusion flows logically from an instruction that tells the jury that one cause can "destroy the causal connection" of another cause and "become the immediate cause." See Court's Charge, Question No. 1. The jury could rely on the new and independent cause instruction to reach a common sense conclusion-using their lay intuition about causation. See Dillard, 157 S.W.3d at 433 (quoting Galveston, H & S.A. Ry. v. Washington, 94 Tex. 510, 63 S.W. 534, 538 (1901)) ("We must look at the court's charge as practical experience teaches that a jury, untrained in the law, would view it[.]'"). The instruction was agreed to by all parties, and it dovetailed perfectly with the evidence of Four J's subsequent negligence. The jury's verdict is well supported.

D. Four J's bore responsibility for the lack of adequate egress.

Finally, the evidence about the lack of adequate egress gave the jury another basis to determine that Four J's negligence was a superseding cause of the injuries. Evidence about the lack of egress permeated the trial. It is succinctly summarized by Ms. Wagner's liability expert, who concluded the locked back door was a breach of the standard of care:

000433 Q. In a residential group home facility, such as the one we saw at Beretta Court, is there an industry standard of care with relation to fire exits, how accessible those exits should be in the event of a fire?

A. All means of egress should be clear of obstacles, to include a locked door. But should be even clear of obstacles in the way. Even a chair in front of them is not permitted.

Q. And would a deadbolt lock that requires key access in the event of an emergency, a fire, is that something that would meet the standard of care in your industry in a residential group home?

A. The only way it would meet the standard of care is if all residents in the home had access to the key and that they could mentally and physically be able to open up the door with the key. That would be acceptable.

Q. And you know, certainly, from Jenny's Wagner's condition that she never could have met that criteria in the Beretta Court Home.

A. No. RR 247-48.

Ms. Udumezue testified that she panicked because of the lack of egress: "I panicked because I, I got just one exit. I would have tried my best if I had another door in that house." RR 215. In addition to the locked back door, she testified that the garage door was broken and could not be used to escape. 3 RR 215. She had only one way to get four mentally disabled people out of the house. 3 RR 215.

Just as with Ms. Udumezue panicking, the lack of egress was another reason the jury could have determined that Four J's negligence was a superseding cause of the injuries. Had Four J's not been independently negligent in maintaining a house with multiple incapacitated residents and only one way out, the residents might have all been safely removed. Once again, the jury could reasonably believe that Ms. Arzola's actions only caused the fire-not the injuries.

000434 The jury had substantial evidence to consider in making these determinations. Its verdict can be explained with a number of reasons, any one of which is a sufficient basis to deny the motion for new trial. In these kinds of cases, jurors need not agree on every detail or reason a party is negligent, so long as they agree on the legally relevant result. See Dillard, 157 S.W.3d at 434. Here, where the jury had at least four separate bases to determine that Four J's negligence was a sole or superseding cause of the injuries, its verdict should be left intact.

CONCLUSION & PRAYER Plaintiff Patti J. Wagner respectfully prays that this Court deny Defendants' motion for new trial. Plaintiff respectfully requests any and all additional relief to which she may be entitled.

Respectfully submitted, BECK, REDDEN & SECREST, L.L.P. By: Isl Russell S. Post Russell Post State Bar. No. 00797258 Constance H. Pfeiffer State Bar No. 24046627 1221 McKinney, Suite 4500 Houston, TX 77010-2010 (713) 951-3700 (713) 951-3720 (Fax) L. Lee Thweatt State Bar No. 24008160 Joseph D. Terry State Bar No. 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, TX 77046-0102 (713) 600-4710 (713) 600-4706 (Fax) ATTORNEYS FOR PLAINTIFF PATTI J. WAGNER, AS GUARDIAN OF JENNY ANN WAGNER, AN INCAPACITATED ADULT

000435 CERTIFICATE OF SERVICE

I hereby certify that on March 16, 2012, a true and correct copy of the foregoing Plaintiffs Brief on Jury's Failure to Find Negligence in Question 1 was properly forwarded to the following counsel of record in accordance with the Texas Rules of Civil Procedure through the Texas.gov electronic filing system or bye-file or fax addressed as follows: James C. Plummer PLUMMER & KUYKENDALL 4203 Montrose Blvd., Ste. 270 Houston, TX 77006 (713) 522-3605 - Fax David W. Holman THE HOLMAN LAW FIRM, P.C.

24 Greenway Plaza, Ste. 2000 Houston, TX 77046 (713) 400-4841 - Fax Attorneys for Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma Shelton Sparks Tiffany Harvey SHELTON SPARKS & ASSOCIATES Cordell St. Houston, TX 77009 (713) 862-4913 -Fax Attorneys for Intervenor

Isl Russell S. Post Russell S. Post

000436 TABA

000437 .' FOUR J'S COMMUNITY LIVING CENTERS, INC. HOME ANO COMMUNITY BASED SERVICES PROGRAM ANNUAL INDIVIDUAL SERVICE PLAN NAME: EmeranuAr?.oln DATE OF STAFFING: 6ugust 4. 2008 DATE OF BIRTH: 02/14183 CASE NUMBER: liQ_ HCS ADMISSION DATE: August 08, 2005 CARE ID NUMBER: )Ql35936 CONSUMER'S ADDRESS AND TELEPHONE NUMBER: \6335 nemta a Missouri City. Texas 77489 £28}) 438-0878 LEGAL STATUS: t\dylt without GuardiM

LEVEL OF CARE: l LEVEL OF NEED: Hlmitr4 CORRESPONDENT INFORMATION: Ms. Luz Caryu. Adv2cate P.O. Box 13 A)to. Tew 75925 (936) 853-8175 Work Phone Esperanza's annual service plan meeting was held al the office of Four J's Community Uvina Centers, Inc. located at 9207 CoWllr)' Creek Drive. Houston. Texas 77036. The rottowina services were reviewed al. lhe time of the meeting and arc summarized in this report. The services ldenri1ied in ttrls Individual Service Plan ore devc1oped from the rcsulr.s of lhe assessments and in:funnation available ot the time and Esper81l2.tl's strengths. pors1.>nal goals, and needs necessary to allow Esperanm to continue to reside in the community and prevent her rc-institutionull~tion .

ENROLLMENT lNFQBMATION Esperanza was enrolled in Four J's Communlly Living Centers Jnc. Home and Community Based Services program on Aueust 8, 2005 from Corpus Christi Stare School. Espcro.n:m is not adjudicated incompetent by the court ~cm, 1111d tbcrcforc, is- her own legaJ guardian. Esperama's Righls of the Individual were reviewed with her at the time of her enrollment and address 3gofo during this stnffing.

Esperan?.a and her slate school IDT arranged for Esperanza to visit numerous HCS programs and she c;hosc Four J's Commwlity Living Ccntc.rs, lnc. 10 provide her HCS service!. £.5peron:z.a•s choice of residence MFalimcssed. She requested a 4-bed HCS

------ residence. Her preference was for a four-bedroom, two-bothroom home in a resid~n1ial neighborhood and the 8354 S. Meadow Bird Circle Drive home was ch~cn. The ~ PLAiNTJFF'S : EXHIBIT l &f tj 000438 NAME: Esperanza Arwla PAGE2 Individual Service Plan CASE NUMBER: 140 neighborhood offers access to community facilities such as the grocery store, post office, restaurants, recreation and shopping.

BACKGROUND INFORMATION According to previous reports, Esperanza was born at home in Durango, Mexico with an attending midwife. The pregnancy was normal with no exposure to tobacco; alcohol or any other drugs. Birth was full term, labor and delivery was also normal. The breathing was spontaneous and the birth weight not recorded.

No neonatal problems were noted. Developmental milestones were met at the following times: Esperanza crawled at eight months, spoke her first words as eighteen months, walked at two years ofage and was toilet trained at two and a half years of age. Mental retardation was first noted at the age nine as a result of a testing at school. At that time, she was assessed and placed in special education classes due to the handicapping condition of mental retardation. It is reported that Esperanza would fight with other children because she had difficulty understanding them. When Esperanza transferred to Middle School, she had irregular attendance and then stop going to school. While at Richmond State School, Esperanza was enrolled in Lamar Consolidated School District and attended classes there for four hours per day.

The history obtained from Richmond State School reveals that at age 12, Esperanza was admitted to the hospital overnight for sexual abuse~ No further details of this incident were available nor the perpetrator ofthe abuse situation identified. Esperanza stated· that she began drinking beer at age 14 and indicates that she has had experience with tobacco, cocaine and other substances. Esperanza stated she has had multiple sexual partners.

Records also indicatethatshehashad several sexually transmitted diseases ill the past and possibly has traded sexual favors for drugs.

She is the third of seven children born to Margarita Arzola and Jose del la Luz Arzola.

Mrs. Arzola worked as a housekeeper and Mr. Arzola worked as a construction worker, Her siblings are as follow: Felipe, Ernesto, Norma, Maricruz, Leobardo, and Pedro Arzola. Four of her siblings were placed in foster care. One family has adopted the two sisters and the two brothers by another family/ Esperanza's parents moved to Dallas from Mexico in 1992. (Family may still be residing in Dallas or may have returned to Mexico.) Records indicate that Esperanza was emotionally, physically, and sexually abused by both biological parents to the extent of their parental rights being terminated in November of J998. Esperanza accused her father of sexually abusing her on several occasions and Esperanza has no desire to resume relationship with her father. Records from TDPRS also indicated that Esperanza's mother, Margarita Arzola, may have prostituted Esperanza in the past, or at least, failed to protect her from engaging in risky sexual behaviors. Records from TDPRS indicated that they first became aware of a neglectful situation involving the Arzola children in 1993 following a report by a neighbor. According to the reports, Mrs. Arzola was aware that her husband was sexually abusing the children, but continuq4Jp. Y~i with him. At Esperimza' s previous placement, Richmond State School, they a'ffoweaperiodic phone contact between her and her parents, in spite of the requested restriction from the LAR, Dallas County Child

000439 NAME: Esperanza Ar.wla PAGE3 Individual Service Plan CASE NUMBER: 140 Protective Services. As a result, Esperanza exhibited sever bouts of self~abuse and depression. Reportedly, the parents would verbally assault Esperdflza, blaming her for their termination of parental rights and for the scrutiny of law enforcement into their home. In addition, her parents facilitated an unauthorized departure from Richmond, where they picked her up and took her back to the Dallas area. It was at this time when Esperanza became infected with herpes as a result of the sexual activitybetween her and her father. Esperanza reportedly was hospitalized in DeSoto, Texas in 1995 to treat sexual abuse. She had multiple contacts with Dallas Juvenile Justice Department for running away, evading arrest, and manifestation of prostitution, probation violation, and assault. She has a long history of multiple placements: • Letot Center 9/12-9/17/97 • YMCA Casa Del Los Amigos Shelter, eloping after three weeks placement • Returned to Letot Center • Buckner Center in Dallas 10/97, eloping after two or three weeks • Haven Residential Treatment Center until 11/4/97 • Kaufman County (Texas)Children's Emergency Shelter for ten days • East Texas Open Door (Marshall, Texas) tintil 4/17/98 • WiUoughly Juvenile Center in Marshall • Dallas County Juvenile Detention Center witil 7/13/98 • Richmond (Texas) State School 7/13/98-7/11/00 • Corpus Christi (Texas) State School l l/12/0J..,8/8/05 (placed at San Antonio [Texas] State Hospital 9/16-10/14/04 after using scissors to attemptto stab a staff member) DETERMINATION OF MENTAL RETARDATION The most current psychological evaluation dated 12/01/04 indicates that Esperanza was tested on 01108/98 utilizing the Woodcock-Munoz where she received a Broad Cognitive Ability LSTD Score of 45. The Wechsler Intelligence Scale for Children was used on 05115198. Esperanza's scores were as follows: VIQ<45, PIQ<45 and FSIQ<40, placing her in the Mild range of Mental Retardation. Esperanza's level of adaptive functioning was assessed on 02/13/95 using the Adaptive Behavior Evaluation Sca]e. She achieved an Adaptive Behavior Quotient of 67.

ROBERT'S ADDRESS AND TELEPHONE NUMBER: 16335 Bcretta Court Missouri City, Texas 77489 (281) 438- 0878 GUARDIAN'S NAME I ADDRESS AND TELEPHONE NUMBER: Esperanza is an adult without a guardian.

PARTICIPANTS!

This meeting was attended by the following people who also signed the signature sheet.

DEF 183 Narne: Relationship to the individual Williams Nnali Case Manager

000440 NAME: Esperanza Arzola PAGE4 Individual Service Plan CASE NUMBER: 140 Julie Etukudoh RN Esperanza Ar.wla Consumer Kirk Lockwood Psychologist Doris Onuwa Trainer, Four J activity Center.

OTHERS WHO CONTRIBUTED TO THE PLAN BUT DID NOT ATTEND THE MEETING: Name: Relationship to Individual Method of contribution Date Chima Anyanwu Direct care staff Personal Data Assessment 07/31/08 CONTACTS THAT NEEDS TO BE MAINTAINED: Name: Relationship Address Phone No Ms Luz Carver Advocate P.0.Box 13, Alto TX 75925 (936) 853~8275 DIAGNOSIS: Mild Mental Retardation,Dysthymia, Polysubstance Abuse, and Personality Disorder with features of Borderline, Histrionic and Antisocial, Morbid Obesity, Seizure Disorder, and Deformity, right foot (calcancal varus). Esperanza does have a history ofseizure but has not had one since December 2002.

Diet: Weight Maintenance with fresh fruit snack at 10 a.m.

IMPORTANT THINGS TO KNOW ABOUT ESPERANZA 1. Esperanza'$ health is stable.

2. Esperanza has an advocate; 3. Esperanza is toilet trained.

4. Esperanza is fullyambulatory~ 5. Esperanza is able to feed herself.

6. Esperanza is a legally completed adult.

7. Esperanza can verbalize her wants and needs.

8. Esperanza has mild visual impainnent (20/25 bilateral visual acuity, related to hyperopia thatcan be corrected with glasses).

9. Esperruv..a has a moderate- to- severe mixed hearing Joss for the right ear and moderate -to-mild conductive hearing loss for the left ear.

10. Esperanza communicates in complex sentences and complies with complex requests in English and Spanish.

11. Esperanza independently performs all self- care tasks (i.e. dressing, bathing, grooming, and tooth brushing), although staff may occasionally be required to assist her to perform them.

12. Esperanza is toilet trained with occasional enuresis.

13. Esperanza actively participates in training and social activities.

14. Esperanza frequently initiates inte~E!j.0~4vith staff and other consumers.

15. Esperanza has limited reading and writing skills.

16. Esperanza perfonns simple food preparation tasks.

000441 PAGES NAME: Esperanza Ar.zola Individual Service Plan CASE NUMBER: 140 17. Esperanza can travel independently on a city bus.

Likes and Dislikes: Likes. ]. Esperanza likes going to dances, parks and movies.

2. Esperanza enjoys listening to the radio.

3. Esperanza enjoys watching movies.

4. Esperanza likes conversing with peers.

5. Esperanza enjoys playing video games.

6. Esperanza likes working on the computer.

7. Esperanza likes to wear herhair short.

8. Esperanza likes to wear jeans, t-shirL~ and shorts.

9. Esperanza enjoys sports and likes to play basketball; volleyball, and kickball.

1O. Esperanza enjoys cooking and can operate stove and microwave.

11. Esperanza enjoys Mexican, Chinese and sea food 1 12. Esperanza likes going outto eat.

Dislikes: L Esperanza dislikes beiµg talked to disrespectfully.

2. Esperanza dislikes BaQ and.oven fried chicken.

3. Esperanza dislikes having to wait for anything she requests.

Behaviors: 1. Esperan711 is non-compliant most of the time.

2. Inappropriate behaviors observed were elopement,, fighting with staff and consumers, destroying property, and verbally abusing staff and peers.

3. Esperanza has a history of illicit drug use, sexual promiscuity, sexual abuse, suicidal attempts, pica, mood swings and non complianee.

4. Esperanza participates in a behavior therapy program targeting deceleration of aggression, self injury, property destruction; and eloping INVENTORY FOR CLIENT AND AGENCY PLANNING Esperanza was administered an Inventory for Client and Agency Planning (ICAP) by Anthonia Uduma on January 29~ 2007. Her service score was 62 and her l CAP Service level was 6, which means that she .requires regular personal care and/or close supervision.

Her level of need is 5.

MR/RC ASSESSMENT Esperanza's MR/RC assessment was completed on 06130108 as a purpose code 3. Her current LOC is a 1 and her LON is 5. The effective date is 07112/2008 and the expiration date is 07/l l/09. Esperanza has a broad independence of 492 and a general maladaptive score of -25.

DEF 185

000442 NAME: Esperanza Arzola PAGE6 Individual Service PJan CASE NUMBER: 140 LEGAL STATUS The case manager assessed Esperanza's legal status on 08/01/08. Esperanza is able to make decisions, which promote her health, safety and welfare. She is able to express preferences, choices and provide input in the interdisciplinary team process in the areas of living arrangement and leisure activities. She is also able to provide input in the area<> of HCS and generic services. She is able to give informed consent or register complaints.

She is able to exercise her rights by receiving and opening mail and expressing her wants and needs.

The team agrees that Esperanza is capable of being her own legal guardian and the IDT has agreed that the Esperanza has an advocate, Luz Carver, who continues to assist Esperanza with her decision-making. Therefore, no application for a legal guardian is necessary at this time.

CASE MANAGEMENT Case Management services were identified in the amount of 12 months during the previous IPC plan year. As at 08/03/08 12 months have been utilized for coordination of the development and implementation of Esperanza's ISP, coordination of the delivery of her IPC, coordination and monitoring of the delivery of her waiver and generic services, integration of various aspects of services delivered under the waiver and through other resources, recording of her progress, maintenance of her records and arrangement of transportation.

DISCUSSION AND DELIBERATION: Case manager infom1ed the IDT that the 12 months allotted for case management last year were·utilized to monitor the following objectives: O The Case manager will monitor all services at least quarterly: Quarterly reviews were completed on October 2, 2007, January 3, 2008, April 2, 2008 and July 2, 2008. Services reviewed included Case Management, Residential Support Services, Nursing, Day Habilitation, Vision~ Annual Physical Examination, Dental, Lab work, Immunization, Weight and Blood Pressure, Psychiatry and Psychology. No significant problems were addressed during this year. Case manager addressed the issues as they arose.

0 The Case Manager will meet face to face with Esperanza ArLola at least monthly: The following Face to Face contacts were made this past year: • 09/01107-At the Riverside Hospital. • 10/1/07- At Four J activity Center. • l 1/01/07- At Esperanza's residence. • 12/01/07- At the Four J activity Center. • OI/02/08-At Esperanza's residence. • 02/01/08- At the Four J activity Center. • 03/01/08-At Esperamsis 1~35 Berctta CT residence. • 04/01/08- At Case Manager's office. • 05/01108- At Esperanza's residence.

000443 NAME: Esperanza Arzola PAGE?

Individual Service Plan CASE NUMBER: 140 • 06/02/08 At the Four J activity Center. • 07101108 At Esperanza's Residence. • 08/01/08 At Case Manager's office o Case Manager will coordinate/monitor non-waiver services as needed when identified in the ISP to support a personal outcome: No non-waiver services this quarter.

This plan year the IDT is recommending 12 months of Case Management of this IPC- period. Case Management will be utilized to provide for coordination of the development and implementation of Esperanw's ISP, coordination of the delivery of her IPC~ coordination and monitoring of the delivery of her waiver and generic services~ integration of various aspects of services delivered under the waiver and through other resources, recording of her progress, maintenance of her records and arrangement of transportation.

RECOMMENDATION: J. Continue 12 mo!lthS of case management services for the implementatiop. of the services identified above.

2. Complete a m<mthly fac.e to face visit with Esperanza Arzola to monitor Esperanza's.training and services outcomes: a. Coordinating the devc:lopment and implementation of her ISP. b. Coordinating the delivery ofher ISP. c. Coordinating and monitoring the delivery of HCS program services and services from other sources. d. Integrating various aspects of services delivered under the HCS program and through other sources. e. Recording her progress or lack of it. f. Developing a pre-discharge plan. g. Record keeping h. Arranging transportation.

Case manager.should document a quarterly review of Esperanza's achievements of training and service outcomes.

JUSTIFICATION FOR SERVICES: The team agreed that 12 months of Case Management services is justified as Case manager will need to have a face to face meeting at least once a month and document accordingly. Time is also needed to coordinate the activities of Esperanw within the community. The 12 month is also a mandatory service and necessary to ensure compliance with the HCS Consumer Principles for Evidentiary Certification. This service does not replace existing natural supports or other non-program sources, RESIDENTIAL ASSISTANCE Residential Support Services were ordered inij\W~aOOunt of365 days for the current IPC Plan year. The team is recommending that 365 days of Residential Support Services be continue throughout the end of the IPC plan year.

000444 NAME: Esperanza Arzola PAGE8 Individual Service Plan CASE NUMBER: 140 Esperanza's location is 4·Person Home. She receives Residential Support Services including direct personal assistance with activities of daily living. assistance with meal planning and preparation; securing and providing transportation; assistance with housekeeping, grocery shopping, grocery list preparation, laundry, cooking, self administration of medication supervision, money management, general shopping, grooming, recreation and other services as needed.

These services are provided in a four-bedroom, two-bathroom residence owned by Four J's Community Living Centers. Esperanza has three housemates. An awake residential support service staff is assigned and present in the home whenever Esperanza is present is the home.

Esperanza was assessed in Toxins and Personal Care Items Fire Evacuation Skills, and Hot Water Mixing, on 07/31/08. The Toxins and Personal Care Items assessments indicate that Esperanza is independent in how to use the items appropriately and safely and independent in knowing not to ingest the products. The Fire Evacuation Skill assessment indicates that Esperanz.a is independent in all areas including choosing the primary and alternate escape routes, staying at the designated area, and identifying the fire alarm sound and device. The Hot Water Mixing assessment indicates that Esperanza is independent in identifying hot and cold water, mixing hot and cold water and to adjusting the water temperature.

The Daily Living Skills Assessment indicates that Esperanza demonstrated strengths in most areas, but deficits were noted in some areas of meal planning, cooking, civic awareness and responsibility, money management, and some areas of sexual awareness.

Esperanza is able to complete all of her basic self~help skills, but does require some reminders in the areas of oral hygiene and grooming. Esperanza speaks both Spanish and English and is able to follow both simple and complex verbal .instructions. Esperanza enjoys cooking and can operate a stove and microwave. She is able to care for her own personal possessions and helps with household tasks, such as vacuuming, sweeping, and mopping. She understands the concept of exchanging money and can travel independently on a city bus. Esperanza expresses her wants and needs effectively with little assistance from others. Esperanza likes socializing, listening to the radio, going out to eat, dances, movies and attendingactivities/events and talking to her advocate, Luz Carver. She likes to wear her hair short. She enjoys Mexican, Chinese and Seafood.

Esperclt1za likes to wear jeans, t-shirts and shorts. She dislikes BBQ and oven fried chicken. Esperanza also dislikes having to wait for anything she requests.

Esperanza enjoys sports and likes to play basketball, volleyball, baseball, and kickball.

She enjoys going to the park and playing pinball machines. Esperanza has a history of illicit drug use, running away, sexual promiscuity, fighting, profanity, sexual abuse, and self-abuse, suicidal attempts, pica, mood oop~d non.compliance.

000445 : NAME: Esperail7.a Arzola PAGE9 Individual Service Plan CASE NUMBER: 140 Esperanza is considered to be intellectually functioning within the moderate range of mental retardation. She posses al1 of her self-help skills; however, independent Jiving, socialization, and behavior management skiHs are noted as priority needs.

RECOMMENDATIONS: I. Continue 365 days of Residential Support Services for direct personal assistance with daily living skills, assistance with meal planning and preparation; securing and providing transportation; assistance with housekeeping; reinforcement of counseling and therapy activities; assistance with medications; and facilitating inclusion in community activities, social interaction, participation in leisure activities, and development of socially valued behaviors.

2. Identity Espetanza's location as a 4-Person Home.

3. Discontinue training in the areas of meal planning and sexual awareness skills.

4. Commence training on household management skills with effect from September 1, 2008. In Goal #1, Esperanza will dress up her bed once daily and in goal #2, Esperanza will tidy up his room once weekly.

5. Reassess Espercinza•s skills including Daily Living Skills, Ho.t Water Mixing, Fire Evacuation, Toxins, and Personal Care Items prior to the annual ISP meeting.

DISCUSSION AND DELIBERATIONS: The IDT·reviewed Esperanza's Residentia1 Outcomes and recommendations. The case manager informed the IDT that Esperanza's weight has reduced considerably. He also infonned the IDT that Esperanza has been on her current goals for 2 years and had done very well as well as improved considerably. The IDT agreed that household management skills will further assist Esperanza to acquire necessary skills for living independently in the community. The psychologist pointed out that Esperanza's weight loss can be attributed in part to her not taking Risperdal anymore as it often contributes to weight gain. Esperanza's trainer also infonned the IDT that her weight loss can also be attributed to her daily exercise. 'The case manager also infonned the IDT that staff has reported that Esperanza has adjusted welt to the environment, although behaviors have been displayed over the past month. The residential staff reports that Esperanza has displayed behaviors of physical and verbal aggression to staff and peers, noncompliance, injury to herself and attempted elopements though the frequency reduced considerably. The IDT addressed Esperanza's behaviors and infonned her of the importance of se1f-control to remain successful in the community. The IDT noted that the psychologist continues to work with Esperanza to address her behavioral problems.

JUSTIFICATION FOR SERVICES~ The team agreed that 365 days of Residential Support Services are justified, as Esperanza has a history of ilJicit drug use, elopement, sexual promiscuity, fighting, profanity, sexual abuse, self-abuse, suicidal attempts, pica, mood swings and noncompliance. Esperanza also has the following diagnoses of Bi-Polar Affective Disorder with Psychotic features, Polysubstance abuse, tobacco abuse and ~Jl ~9omiscuity. Over the years, she has displayed some episodes of depression which have resulted in initiation of suicide precautions and physically aggressive and generally noncompliant. The IDT has also

000446 NAME: Esperanza Arzola PAGE 10 Individual Service Plan CASE NUMBER: 140 agreed that due to the fact that Esperanza hao;; displayed some of these behaviors since her admission, it is imperative that a Residential Support Staff is available and awake to provide Esperanza with maximum supervision. The IDT has discussed and agreed that once Esperanza becomes upset, she would attempt to elope or display physical aggression toward staff, peers, or self. The IDT also agreed that Esperanza requires the assistance of awake staff during the night to assist her to the restroom to prevent her from soiling her clothing or bedding throughout the night. The team agreed with the recommendations.

Esperanza is unable to reside with family members or her advocate. Esperanza docs not have residential support needs that can be funded through Direct Medicaid Card services.

This service does not replace existing natural supports or other non-program sources as these supports and sources are not available. The team has consider the use of ongoing community services and resources to meet as many of Esperanza's needs as possible in the same way and during the same hours as the commWiity at large uses these generic services.

NURSING Background Information: Esperanza is a 25 year old Hispanic female diagnosed with Mild Mental Retardation, Dysthymia, Polysubstance Abuse, and Personality Disorder with features of Borderline, Histrionic and Antisocial, Morbid Obesity, Seizure Disorder, and Defonnity, right foot (calcaneal varus). Esperanza does have a history of seizure but has not had one since December 2002. Her current medications are Bromocriptine 2.5mg, 1 tab po BID; Depakote ER 500mg, 1 tablet po BID; Lamictal 1OOmg, 1 tab po q am, Detrol La 4mg, 1 tablet po q am; Depoprovera Injection l50mg q 3 monthly; Trazodone 1OOmg, 2 tabs po q hs; Thorazine 1OOmg, 1 tab po Till; Cogentin 1mg, 1 tab po BID; Invega 9mg, 1 tab po q am; Chantix 1 mg, t tablet po q am. Her current diet is weight maintenance with fresh fruit snack at 10 a.m. and her current weight is 21 O lbs. She has no known food/drug allergies, but is sun sensitive. Her hnm1.U1izations are current.

ANNUAL EXAMINATIONS COMPLETED DURING THE YEAR.

On September 19, 2007, Esperanza completed an annual physical examination, lab work and PPD. The result of the PPD planted read after 48 hours was negative. Blood drawn and send to Lab for testing. Standing order for OTC medications signed by the pep. A return visit for result of the.lab work given on 9/26/07 On5/03.08, Esperanza was seen by Dr. Mabatah for annual vision Examination today, the visual acuity on both eyes are 20/20; Nonna} visual fields. Findings and recommendations: Hypernopia - Glasses needed as necessary for reading and \Vatching T.V. One year return visit recommended.

MEDICAL APPOINTMENT COMPLETED DURING THE YEAR.

On 8/16/07, Patient was seen at the Methodist Hospital for swallowed foreign body, Depression and suicidal gesture. AbdomirDEOCl&f}y done shows negative (No object found). Blood test results - WNR.

000447 NAME: Esperanza Arzola PAGE 11 Individual Sen.rice Plan CASE NUMBER: 140 On 8/Jl/07, Esperanza was admitted into Riverside Hospital for increase behaviours and suicidal attempts. Medications changes made during hospitalization, her mood stabilized.

Was discharged on the 9/07/07.

On September 18, 2007. Esperanza was seen by Dr. Ravichandran for ti'u and post hospitali7.ation. On evaluation mental state stable no change in medications. A return appointment given in 3 weeks.

On 26 September, 2007. Esperanza was seen by the pep Dr. Egbunike for a follow up on labs results. On evaluation result of CMP, CBC, LFT,Lipids panel anfThyroid panel were all within normal Range. A return appointment given in 1 year.

On 10/01107. Esperanza was seen by the Neurologist Dr. Bhat for a follow up. On evaluation patient to continue with Depakote ER and Lamictal.Blood drawn for LFT, Chemistries, CBC and Depakote .Level ~ within Normal Range. A return appoint given in 214108 On 10/23/07, Esperanza was seen by the ·psychiatrist Dr. Ravicbandran for a follow up visit There is no new medication prescribed. Patient to continue with the same meds. A return appointment given in 1 month.

On 11126/07, Esperanza was see at Grace Family Midicalforgene~lized body rashes.

On evaltiation, Rabies diagnosed. New px: Elimite Ci:eam 60gmsApply on all body part at 7pmand wash offat7am. Wash all bedding with hotwatedncludingtoweJs. A returJl call given in two weeks.

On 11128/07, Esperanza was seen by the psychiatrist Dr, Ravichandrdll for follow up visit and medication refills. Patient to continue with the presentpsychotropic medications. A retum appointment given in l month.

On 12110107, Esperanza was seen at the Grace Family Medical for flu vai:;cine. Had FLU vaccine Lot# U2 l 73 AA, Manuf: Sanofi Pasteur and expiring 06/2008 given at left Deltoid muscle.

On Ol/03/08, Esperanza was seen by the psychiatrist Dr. Ravicbandran for follow up and medication refills. No change in medication regime.

On OI/25/08, Esperanza was seen by the NP-C Esther Mgbcike for WWE and foUow up.

Pap smear collected and send for test. Lab results were WNR. A return visit given for one year.

On 02/04/08, Esperanza was seen by the psychiatrist, Dr Ravichandran for follow up visit and medication refills.A return appointment given in 1 month.

On 2/04/08, Esperanza was seen by DR. Bfillt~curologist, for a follow up visit, No breakthrough seizures reported Serum Depak.ote level on 10/10/07- within nonnal

000448 NAME: Esperanza Arzola PAGE 12 Individual Senice Plan CASE NUMBER: 140 range.No change in medication regime to continue with the present medication.Patient to return call in 06/02/08.

On 02/13/08, Esperanza was seen by the Grace family medical for CIO cold symptoms.

Cough, chest congestion, New px: Zpak as directed, Ceron DM syrup tid pm. Tylenol ES tabs q 6 hours pm. A return visit given in 2 weeks.

On 03/04/08, Esperanza was seen by the psychiatrist Dr. Ravichandran for a follow up visit and medication refills. No change in meds regime. A one month retum appointment given.

On .3/12/08. Esperanza was seen for a follow up visit of cold symptoms. On evaluation cough resolved.

On 04/07/08 1 Esperanza was seen by the Psychiatrist DR. Ravichandran for a medication refills. A new script given. A return visit was given in one month.

On 412.5/08, Esperanza Wtts seen at planned parenthood for injection ofDepoprovera, However, thisinjection wasnotgi'Ven as patient was sexually active.Patient is to abstained from sex in 2 weeks. before the injection ofDMPA. Nurse \vilJ rrtoni tor patient for abstinence.

On 5106108, Esperanza was seen today by the NP-C to Dr Rubashk.in for initial Psychiatric consultation. On evaluation there is no change in medication regime. A follow up visit given in one month.

On 5/14/08, Esperanza was seen at Planned Parenthood clinic. Had DMPA 150mg given at left deltoid muscle. A return appointment given in 3 months.

On 6102108, Esperanza was seen by Dr. Bhat, the neurologist, patient to continue with the present medications. Aretum appointment given in 10/02/08.

On 6/6/08 Esperanza was seen Dr. Ruba;;hk.in NP-C for flu and medication refills. Ol1 evaluation behavior is under control. To return call in 2 weeks.

On 06/20/08, Esperanza was seen by NP-C Guelline for follow up in behaviors management. Patient is to continue with the present medications.

On 07/31108, Esperanza was transported by the Ambulance to Ben Taub Emergency room for Adjustment Disorders; h/o MR; UTI. New px: Cipro 250mg, 1 tablet po q 12 hours X 3 days. A follow up visit Recommended.

Self Administration of Medication Assessment: The self-administration of medication asseUliiErlt9Nas completed on August 04, 2008.

The nurse recommended that Esperanza's medication be administered with supervision.

000449 NAME: Esperanza Arzola PAGE 13 Individual Service Plan CASE NUMBER: 140 RECOMMENDATIONS~ 1. Esperanza should complete follow-up visits as ordered/recommended by Dr. Ravichandrian, psychiatrist, to monitor psychotropic medications and behaviors through 08/2009.

2. Esperanza should complete an initial dental exam/deaning with Dr. Bean, dentist, by I 0/08 and as needed/recommended by the dentist through 08/2009 3. Esperanza should complete an annual vision exam by 04109.

4. Esperanza should complete a WWE by 10/09.

5. Esperanza should receive a Depo~Provera by 10/09.

6. IPC should reflect 12 hours of nursing: DISCUSSION AND DELIBERATION: Esperanza's medical needs and outcomes were reviewed. The nurse informed the team that Espenmza's health is stable. 'lbe IDT agreed with the recommendations . •JUSTIFICATION FOR SERVICES: The team agreed that 12 hoUrs of. nursing services is j\lstiffod .based on the HCS Consumer Principles for Evidentiary Certification requirement that the nurse participate in ISP meeting as well as Esperanza~s diagnoses of Mild MentaLRetardation, Dysthymia, Polysubstance Abuse, and Personality Disorder with• features of Borderline, Histrionic and Antisocial, Morbid Obesity, Seizure Disorder, and Defonnity, right foot (calcaneal varus). Esperanza does have a history of seizure but has not had one since December 2002.

The 12 hrs should be distributed as follows: • 6 hours- JO minutes face to face visit monthly to monitor medication tolerance, weight, vital signs, and general nursing assessment and seizure disorders. • I hour- administer initial dose of new medications and to monitor side effects and to complete an assessment of self-administration of medication. • l hour- in-service new/current staff on medications and diagnosis. • 2 hours- follow up with 1nedical /other profession. • 1 hour- participation in, annual staffing, and interim staffing through 10/2009.

The IDT agreed that the recommended nursing hours are needed due to the fact that Esperanza is currently taking psychotropic medications and requires monthly monitoring of her vital signs, weight, and medication side effects. The IDT has also agreed that the nurse is required to inservice current and new staff as weJI as administered ne·w and increased doses in current medications. The nurse will also make necessary follow-up contact with Esperanza's primary care physician and psychiatrist as needed.

Esperan7..a does not have any current nursing needs that can be funded through Direct Medicaid Card services. This service does not replace existing natural supports or other non-program sources as these supports an~Hr~~§ are not available.

000450 NAME: Esperanza Arzola PAGE14 Individual Service Plan CASE NUMBER: 140 DAY HABILITIATION Day Habilitation Services were identified in the amount of 255 days for the current IPC Plan Year. The team is recommending that Day Habilitation services remains at 255 days through the end of the IPC Plan Year.

Esperanza was enrolled in Four J's Development Center for day habilitation services on August 8, 2005. She attends the center five days a week, 7 hours per day and attends on aJl possible days. Esperanza is transported to the day habilitation site via the staff of Four J's Community Living Centers Inc. Home and Community Base Service Program. While . at the day habilitation program, she participates in activities designed to assist in acquisition, retention, and improvement of adaptive skills, socialization and activities of daily living. Esperanza was trained in the area of avoiding and resolving conflicts ahd exercise skills. These goals paid off as Esperanza lost over 40 pounds this period. She is presently on the independent stage. However, it is recommended that she continues on this goal for another year as to get used to doing so habitually.

Esperanza enjoys interacting with staff and peers. She likes listening to the radio and eating out. She has a fondness for Mexican and Chinese food and jtltik food. She enjoys dances and other social outings. She greets visitors by making eye contact and she will generally smile. Behaviorally, Esperanza is non-compliant daily. She has eloped on several occasions. She has displayed physical and verbal aggression with staff and peers.

She has also displayed self-injurious behaviors. She also hates waiting for anything she requests, as she then will become agitated.

The Day Habilitation Assessment was completed on 08/1/08. Esperanza demonstr(lted strengths in most areas of the Four J's assessment, but she did display weaknesses·in the areas of Money Skills and Writing Skills. These are the two areas we will address first.

She also displayed weaknesses in the areas of Attending Skills, Time Concepts; and Prevocational Skills. Esperanza was compliant throughout the completion go the assessment.

Upon review of Esperanza's performance during the assessment, the following formal habilitation programs recommended: Money Skills and Writing Skills.

RECOMMENDATIONS: I. Continue to attend Four J's Development Center 5 days a week, 7hours each day.

2. The IPC should reflect 255 days of day habilitation to provide day habilitation activities away from Esperanza's residence, completion of assessments, and contact with Esperanza's representatives related to the provision of day habilitation and participation in interdisciplinary team meetings.

3. Continue habilitation training in the areas of avoiding and resolving conflicts and exercise skills.

4. Continue Implementing Behavior Therapy Program.

DEF 194

000451 NAME: Esperanza Arzola PAGE 15 Individual Service Plan CASE NUMBER: 140 DISCUSSION ANH DELIBERATlONS: The team accepted the recommendations as written. Espenmza's trainer informed the IDT that Esperanza has made a tremendous improvement in handling conflict and exercising.

She recommended that running the same program with Esperanza for another year will further enhance her skills and improve her independence in the community.

JUSTIFICATION FOR SERVICES: The team agrees that 255 days of day habilitation services is justified based on Esperanza's need for day activity services to provide assistance in acquiring, retaining, and/or improving her social and adaptive skills necessary for her integration and participation in the community. Esperanza has problem with retreating from conflict.

This often lands her in trouble with other consumers and staff. At the same time, Esperanza remains overweight despite losing so many pounds recently. Therefore, the recommended training goals will address these necessary needs.

Esperanza does not appear to be appropriate for community employment at this time nor is she eligible for services through a DA.HS program. Therefore, this service does not replace existing natural. supports or other non-program sources as these supports and sources are not available.

FINANCES: .Case manager informed the.IDT that· the financial director informed him that Esperanza Arzola received an SSI benefit of $637.00 monthly. Out bf this amount the sum of $536.90 is paid for her room and board. A monthly allowance of$10.00 is also given to Esperanza.

DISCUSSION AND DELIBRATION.

The IDT reviewed the financial infonnation. The IDT agreed that Esperanza is not able to handle all her money. Therefore, the IDT agreed that director should pay Esperan7.a~s room and board as at and when due. The IDT also agreed that $10.00 should he given to Esperanza every month.

ADAPTIVE AIDS Adaptive Aids services were not utilized the previous year.

DISCUSSION AND DELIBERATION: No adaptive aids are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

JUSTIFICATION FOR SERVICES: No adaptive aids services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

DIETARY: Esperanza does not currently utilize any d!fmrymvices.

000452 NAME: Esperanza Arzola PAGE16 Individual Service Plan CASE NUMBER: 140 DISCUSSION AND DELIBERATION: No dietary services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

JUSTIFICATION FOR SERVICES: No dietary services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

SPEECH/LANGUAGE PATHOLOGY: Esperanza does not utilize these services at this time.

DISCUSSION AND DELIBERATION: No speech/language pathology services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

JUSTIFICATION FOR SERVICES: No speech/language pathology services are being rec.ommended at this time. The team will meet anytime during the year to add the services· if needed and recommended.

OCCUPATIONAL THERAPY No occupational therapy service funds are clirrcntly utilized by Esperanza Arzola.

DISCUSSION AND llELIBERATION: No occupational therapy services are being recommended at this time. The team wiU meet anytime during the year to add the services if ne.eded and recommended.

JUSTIFICATION FOR SERVICES: No adaptive aids services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

PHYSICAL THERAPY Esperanza Arzola does not utilize any physical therapy services at this time.

DISCUSSION AND DELIBERATION: No physical therapy services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

JUSTIFICATION FOR SERVICES: No physical therapy services are being recommended at this time. 'Ibe team will meet anytime during the year to add the services if needed and recommended.

AUDIOLOGY: Esperanza Arzola does not utilize any audiology services at this time.

DEF 196

000453 NAME: Esperanza Arzola PAGE 17 Individual Service Plan CASE NUMBER: 140 DISCUSSION AND DELIBERATION: No audiology services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

JUSTIFICATION FOR SERVICES: No audiology services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended.

RESPITE: Esperanza Arzola does not utilize any respite services at this time.

DISCUSSION AND DELffiERATION: No respite services are being recommended at this time. The team will meet anytime during the year to add the services if needed and recommended, JUSTIFICATION FOR SERVICES: No respite services are being recommended at this time. The team will meet anytime during the year' to add the· services if needed. and recommended, PSYCHOLOGY PsycholQgy services w~re ordered in the amount of6 hours duringthe current.lPC plan year. The team is recommending that psychological service remain at 6 hours for the current IPC plan year~ The consulting psychologist, Kirk Lockwood, completed a psychological update on 8/3/08. .

Results ofLastevaluation: Intellectual Functioning: Date: 5/15/98 Test: Wechsler Intelligertce Scale for Children.

Verbal IQ< 45 Performance IQ< 45 Full Scale IQ< 40 Adaptive Behavior: Date 2/13/95 Test: Adaptive Behavior Evaluation Scale Adaptive Behavior Quotient= 67 Current ABL = 1 Potential ABL = Undetermined.

These results appear to be valid and continue to accurately reflect Esperanza's current level of functioning. Retesting is not indicated at this time.

Summary of Strengths and Needs: . DEF J97 a Esperanza is fully ambulatory. Esperanw has mild visual impairment (20/25 bilateral visual acuity, related to hYPcropia that can be corrected to 20/20 with glasses). She has a

000454 NAME: Esperanza Arzola PAGE 18 Individual Service Plan CASE NUMBER: 140 moderate- to-mild conductive hearing loss for the left ear. She communicates in complex sentences and complies with complex request and complies with complex requests both in English and Spanish. Esperanza independently performs all self care tasks (i.e., dressing; bathing, grooming and tooth brushing), although staff may occasionally be required to prompt her to perform them. Espcnmza is toilet trained with occasional enuresis.

Esperanza actively participates in training and social activities. She frequently initiates interactions with staff and with other consumers. She has limited reading and writing skills. Espemnza performs basic household chores. Esperanza can perform simple food preparation tasks.

Esperanza participates in a behavior therapy program targeting deceleration of aggression, self injury, property destruction, and eloping. The following table describes her performance in this program 2007-2008: Day Mean Incident/Day BL (9/21- 30/05) 6/1/07- 6/30/08 % Decrease(Increase) from BL.

As..u?iession 0.4 0.04 90 Self-Iniurv 0.3 0.02 93 Property Destruction OA 0.03 92 Eloping 0.5 0.02 96 Esperanza has a psychiatric diagnosis of bipolar disorder NOS. Esperanza receives Depakote ER (anticonvulsant used as a mood stabilizer) 500 mg BID. Thorazine (antipsychotic) lOOmg TID, Invcga (antipsychotic with a different mechanism) 9mg QD, Cogentin (antiparkinsonian) 1 mg BID, and Trazodone (antidepressant) 200ing HS to treat manifestations of her psychiatric disorder, specifica1ly, aggression and self injury.

Summary and Conclusions: Based upon direct observations, interviews with staff who are responsible for Esperanza on a daily basis, and review of available records~ Esperanza appears to be functioning within the mild range of mental retardation. Her adaptive behavior level is currently l with an undetermined potential.

RECOMMENDATION: 1. To continue Esperanza's behavior therapy program targeting deceleration of aggression, self-injury, property destruction, and eloping.

2. The IPC should reflect 6 hours for the following psychological services over the year: • 4 Hours for quarterly monitoring of her behavior therapy program in order to ensure proper program imJ>lementation and inservice of staff. • 2 Hours for attendance at II::J¥i£e\i'lfiig in order to review progress on behavior therapy progran1, review recommendations, discuss ideas for revisions, and discuss issues related to psychological well being.

000455 NAME: Esperanza Arzola PAGE19 Individual Service Plan CASE NUMBER: 140

DISCUSSIONS AND DELIBERATIONS= The team reviewed the psychologist Behavior Therapy Program. The team agreed that a Behavior Therapy Program targeting deceleration of aggression, self-injury, property destruction, and eloping would be implemented. The recommendations were accepted . •JUSTIFICATION FOR SERVICES: The team agreed that 6 hours of psychology services is justified based on Es,peranza's need for quarterly monitoring (4 hours) as well as attendance at IDT meeting in order to review progress on the behavior therapy program, review recommendations, discuss ideas for revisions. and discuss issues related to psychological well-being (2 hour).

DENTAL Dental service was ordered in the am.ount of$240.00 for current lPC plan year. Through 08/1/08, $240.00 dental services have been utilized. The IDT has agreed that $300.00 of dental service would be on the IPC this plan year.

On 10/10/07, Esperanza was seen by the. dentist Dr. Beans fordental examination and. cleaning. On evaluation the general condition ofteeth good, condi#on of gums fair, Mild gingivitis noted. Oral hygiene fair. Recall appointment given in 6 months.

On 04/15/08, Esperanza was seen by the Dentist Dr. Beans for dental examination and cleaning. The general condition of teeth good, Conditions of gums fair.. Mild gingivitis noted. Oral hygiene good. A return visit given in 6 months.

RECOMMENDATIONS: 1. Esperanza should complete a six moth dental exam/cleaning with· Dr. Bean, dentist, by 10/08 and as needed/recommended by the dentist through 08/2009.

2. Esperanza's IPC should reflect $300 for dental.

DISCUSSION AND DELIBERATIONS: 'lne reviewed Esperanza's past dental record from Corpus Christi State School and recommendations were accepted.

JUSTIFICATION FOR SERVICES: The team agrees that $300.00 for dental services is justified based Esperanza's need for dental exams and cleanings. It is routine community practice to obtain a cleaning and exam every 6 months in order to maintain and monitor good oral hygiene. Each dental examination and cleaning costs $150.00. Therefore two procedures will require $300.00.

Esperanza does not have any other means to cover the cost of these services other than her personal funds. Therefore, this servic~Si~~treplace existing natural supports or other non-program sources as these supports and source are not available.

000456 NAME: Esperanza Arzola PAGE20 Individual Service Plan CASE NUMBER: 140

ADDITIONAL ISSUES ADDRESSED BY THE INTERDISCIPLINARY TEAM 1. Is Esperanza's current legal status appropriate in that she can make informed decisions regarding her health, safety, and welfare and express choice and preference as it relates to her service needs? Yes. An assessment of Esperanza's legal status was completed by the case manager on 8/1/08 and addressed by the IDT at the annual meeting. The IDT has agreed that Esperanza is capable of making informed deeisions regarding her health, safety, and welfare as well as expressed her choice and preferences.

2. ls Esperanza's HCS enrollment appropriate considering her choices and needs?

Yes, Esperanza bas expressed her choice and needs and has agreed that she should be enrolled into HCS. The IDT agrees that the HCS program can meet Esperanza's needs as outlined in this report.

3. Is Esperanza's current residence type of Residential Support Services appropriate considering her choices and needs? Yes, Esperanza expressed her wishes to receive Residential Support Services in her present home to meet her needs and outcomes. In regards to her needs,. the residential type is appropriate with an awake staff to ensure her health, safety, and welfare as describe in this report.

4. Were Esperanza's preferences regarding the location of the home and furnishings in the home in which she resides promoted? Yes, Esperanza expressed her preferences for her to continue to live in her present home with her furnishing. She informed the team that everything regarding the residence was tO her liking.

5. Were Esperanza's preferences regarding a housemate promoted? Yes, Esperanza bas agreed to the current housemates living in her residence at this time.

6. Do the residence, neighborhood, and community in which Esperanza resides meet her needs and choices and provide an environment that assures her health, safety and welfare? Yes. Esperanza's needs arc met in her current environment.

Esperanza does not have any special needs. The IDT reviewed the Environmental Safety Checklist completed on 6/12/08. The environment assures her health, safety and welfare.

7, Does Esperanza require any adaptive aids at this time? No. Esperanza does not require any adaptive aids at this time.

8. Does Esperanza require any minor home modifications at this time? No. Esperanza does not require any minor home modifications at this time.

9. Has the Interdisciplinary Team addressed the use of ongoing community services and resources to meet Esperanza's needs? Yes. The team has considered the use of ongoing community services and resources to meet as many of Esperanza's needs as possible in the same way and during the same hours as these generic services are used by the community at large. Esperanza's Medicaid card will be used for the purchase of her medications as needed.

Esperanza's family is not able to provide ongoing routine services to her in place of HCS sen•ices. EsperanzarJg~-m» have any other friends, church, or community organizations that arc abteviO contribute to meeting her waiver needs.

000457 NA.t\1E: Esperanza Arzola PAGE21 Individual Service Plan CASE NUMBER: 140 10. Did the case manager infom1 IDT members about transfer options available, that they have a right to transfer Esperanza Arzola to another provider at anytime?

Yes. The team reviewed and discussed with Esperanza Arzola and his JegaI Guardian the transfer options available. Esperanza Arzola and his IDT chose to remain with Four J's as the provider.

CONSUMER'S STRENGTHS 1. Esperanza's health is stable.

2. Esperanza has an advocate.

3. Esperanza can perform most of her self-help skills.

4. Esperanza is toilet trained.

5. Esperanza is ambulatory.

6. Esperanza is able to feed herself.

7. Espemnza can read and write.

TRAINING AND SERVICE OUTCOME I. RESIDENTIAL ASSISTANCE 'l'R.AJNING O'{JTCOMES A. RESIDENTIAL ASSISTANCE GOAL #I: Daily Living Skills OBJECTIVE #1: Esperanza will dr~ss up her bed once daily CRITERIA; with no mor:e than 4 verbal. prompts eac.h session., 20 of 30 successful sessions per month for 3 months. The number of promptings will. be reduced any quarter that Esperanza consistently meets criteria until she can accomplish the task independently.

GOAL#II: Household Maintenance skills OBJECTIVE# I: Esperanza will tidy up her bedroom.

CRITERIA: Once weekly with no more than 4 verbal prompts, 3 of 4 successful sessions per month for 3 months. The number of promptings will be reduced at the end of any quarter that Esperanza consistently meets criteria until she can accomplish the task independently.

Il. DAY HABILITATION TRAINING OUTCOMES GOAL #1: AVOIDING AND RESOLVING CONFLICTS OBJECTIVE #1: Esperanza will ignore offensive behaviors of others, once daily independently, 10 of 20 successful sessions per month for 3 months.

GOAL#2: EXERCISE SKILLS OBJECTIVE # 1: Esperanza will exercise in the a.m and p.m for 30 mins once daily with 4 verbal prompts, 10 of 20 successful sessions per month for months.

DEF201

000458 NAME: Esperanza ArLola PAGE 22 Individual Service Plan CASE NUMBER: 140 TRAINING AND SERVICE OUTCOMES III. SERVICE GOALS GOAL #1: PHYSICAL EXAM AND LABWORK STRATEGY: The nurse will ensure that Esperdllza obtains a physical with lab work by 09/2008.

GOAL#2: PPD SKIN TEST STRATEGY: The nurse will ensure that Esperanza completes a PPD skin test by 09/2008.

GOAL#3: WELL WOMAN EXAM STRATEGY: The nurse will ensure that Esperanza completes a well woman exam by 112009.

GOAL#4: DENTAL EXAM AND CLEANING STRATEGY: The nurse will ensure that Esperanza completes a dental exam and cleaning by 10/2008 and as needed/recommended by the dentist through 08/2009.

GOAL#S: PSYCHIATRIST STRATEGY: The nurse will ensure that Esperanza completes all follow~up visits with the psychiatrist as needed/recommended through 08/2009.

G0AL#6: VISION EXAMINATION STRATEGY: The nurse will ensure that Esperanza obtains an annual vision exam by 05/2009.

GOAL#7: DEPO~PROVERA lNJECTIONS STRATEGY: The nurse will ensure that Esperanza obtains·a Depo~Provera injection by l 0/05 and every three months thereafter through 08/2006.

GOAL#8: SELF ADMINISTRATION OF MEDICATION ASSESSMENT STRATEGY: The nurse will complete a Self Administration of Medication Assessment for Esperanza by 7108.

GOAL#9: PSYCHOLOGY QUARTERLIES STRATEGY: The psychology will complete quarterly reviews on Esperanza's BTP to address her targeted behavior through 08/2009.

DEF202

000459 ESPERANZA ARZOLA #140- DOB 02/14/1983 DATE OF ADMISSION 08/08/05 16335 BERETTA COURT' MISSOURI CITY, TX 77489 ESPERANZA'S DIAGNOSIS Mild Mental Retardation, Dysthymia) Polysubstance Abuse, and Personality Disorder wjth features of Borderline, Histrionic and Antisocial, Morbid Obesity, Seizure Oisorder, andDeformity, right foot {calcaneal varus). Esperanza does have a history of seizure but has not had one since December 2002.

Diet: Weight maintenance di~t with fresh fruit snack at I O.OOam.

Important things to know about Esperanza: 1. Esperanza's health is stable.

2. Esperanzahas•an advocate.

3. Esperanza is toilettrained.

4. Esperanza is.fully ambulatory.

5. EsperaIIZa is able to feed herself.

6. Esperanza is a legally completed adult.

7. Espi:;ranza can verl?alize her wants and needs.

8. Esperanza has mild visual impainfient (20/25 bilateral visual acuity, related to hyperopia that can be corrected with glasses).

9. Esperanza has a moderate- to- severe mixed hearing loss for the right ear and moderate ...:.to-mild conductive hearing loss for th.e left ear.

10. Esperanza communicates in complex sentences and complies with complex requests in English and SpaniSh.

11. Esperanza independently performs all self- care tasks (i.e. dressing, bathing, grooming, and tooth brushing). although staff may occasionally be required to assist her to perfonn them.

12. Esperanza is toilet trained with occasional enuresis.

13. Esperanza actively participates in training and socjal activities, 14. Esperanza frequently initiates· interactions with staff and other consumers.

15. Esperanza has limited reading and writing skills.

16. Esperanza performs simple food preparation tasks.

17. Esperanza can travel independently on a city bus.

DEF203 Likes and Dislikes~

000460 Likes. l. Esperanza likes going to dances, parks and movies.

2. Esperanza enjoys listening to the radio.

3. Esperanza enjoys watching movies.

4. Esperanza likes conversing with peers.

5. Esperanza enjoys playing video games.

6. Esperanza likes working on the computer.

7. Esperanza likes to wear her hair short 8. Esperanza likes to wear jeans, t~shirts and shorts.

9. Esperanza enjoys sports and likes to play basketball, volleyball, and kickball.

10. Esperanza enjoys cooking and can operate stove and microwave.

11. Esperanza enjoys Mexican, Chinese and sea food.

12. Esperanza likes going out to eat.

Dislikes: 1. Esperanza dislikes being talked to disrespectfully.

2. Esperanza dislikes BBQ and oven fried chicken.

3. Esperanza dislikes having to wait for anything she requests.

Behaviors: 1. Esperanza is non~compliant most of the time.

2. Inappropriate behaviors observed were elopement; fighting with staff and consumers, destroying property, and verbally abusing staffand peers.

3. Esperanw has a history of illicit drug use, sexual promiscuity, sexual abuse, suicidal attempts, pica, mood swings and non compliance.

4. Esper.mza participates in a behavior therapy program targeting deceleration of aggression, self injury, property destruction, and eloping

DEF204

000461 TABB

000462 rte 01$lA IC J CllAI hr I 2otl9 15: 21 P. 0 I

ANJJE RJ:BECCA ELLIOTT ! Dlatrfot dlerk i &tat. of TitQ• f Olfnty of Fort Bend Fa>c Number: 113.779.9759 • Attention: DR. KAREN GAi.LAHER~INCLAJR .I Oate: March I, 2009 • Number of p19H faxed lnclud~g thJa page: 8 OIVll/CRIMfNAkl~~~~ ; )"'2.I I.

Cause No. ... ~l tp ; STATe OF TEXAS v•. 9~ERANZAV.·ARZOLA i

OTHER INFQRMA TION; : INDICTMENT AND M~OION . ORDER 81JOOE8TINCI INCOMPl!TENOY, MENTAL R6TAROATI AN NSANllY AND fU!QUE8T l'OR !XAMIN~ • \ .

From: Ot,._. Olt* Ot~ HlL\.YOAvd CBlMtJAJ..ftl TUftd I t Rtc:elVtd BY:-------'~------- 0.tit._ __ _ _ _ __ cpNPJDENJWJTY NOJIOE .

Tiit 111t011MU011 contlllntd In lhlt f:lullnle me(u ga and 1~1AWfnD dOCUIMnlt la l•t•'Y PrMlt114 ind Olftfi4111ll1J lllfonneu.11 111\•ndtd olW lot 1ti1 utt orlli• llldfVldUll er.ntr'1)1 nll!IW ~"°"'· It you h•Y• rootfil•d \hit J•teoow Ill •'!Or. P-IH M 11t1mtdl1l•lr 110\iy '"by tlkpho111111C1~1tum tllo 011t111a1mM HllOto111 ol tlit 1d41. . . •hown bOklW '111 Vnlltd DtalOJ PC111t11 1ervlot, ll1•M~ou. .

301 J1ok1on Street RJc, rnood, Texu 77489 (281) 342. 3411

..

000463 FOC DISTRICT ClERK Mar S 2009 15:26 P.02

S-1:17:1 ....,; { {f 1 1451l1D~) TIIE STATE OF TEXAS § IN TllE DISTIUCT COURT I v. I 268™ JUDIClAL DISTRICT ESPERANZA V. ARZOLA ' • § FORT BEND COUNTY, TEXAS MOTIQN SQGGE§JJN(i~O)fPE~)',M.JtNTAL R!'rABPA'fl9.tl AN!> RiiA&TYVJ!lii REO!mSI l.QB.EXAMIN6tION TO THE HONORABl..E JUDGE ~FSA.JD COURT2 Now comes Bspera~ v:, Al'zola 1 Defendant, Md ftles this motion suggesting inoompotonoy, mental retardation *d Jnsanity and request ibt exam!nt\tion of Bsperanz.a V. Arz:ola. Dofendsnt. will respect to the. issue of'thc compatenoy, mental rctardstJoD , and insanity of Dofondant t() stand trial herein, und $owa as follows: 1. There Js an wuc in ·~ oausc regarding whother Dcflmdant la 0 compotcnt" to stand crial herein, as such term is ciafined by Article 46B.003 of tho Texas Code of Crtminal Prooedute.

Il l. Request is hereby rruide that one or more disi.n~ated experts be appointed aa provided by Article 46B of the Texas Code of Cnminal Prooedure to examine Defendant with . ; . . regard to the comtietency of Def\lndab.t to stand trial p.nd DtJfendari.i•s m6nud status and lnsanlty.

3. Request Is further made for Defendant to be examined by a psychiatrist OMlJ<pert of the Defendant'! own choice wider Ardolo 46B.O:Zl(!) of tbe Texas Code of CrlrnlO.al l }

Procedure.

4. ' tn tho event the Court detenninea that there Is ovldcnco to support a ftndf ng of l Incompetency, an lnMmpetoncy tria(is requested es provided by Article 46B of the Texas Code \ .. of Criminal Proced\U'O I I \

000464 FOC DISTRICT CLERK Mar 6 2009 15!29 P.03 ..' v Rospectfully submitted,

~ ~ 2COUNSBL FOR. D:SFENOANT ..,f)... ~~: tit 201 sot.rm BLBVBNTH STRB~T' ' ~; I -n 10 . .· RICHMOND. TBXAS 77469 TBLBPHONB: (2$1} 342.g321 i~ : · . )z. r Ii! - · FACSIMILE: {~81} Ml-8458 . ~l:·. . .:1 f:l!I ;·''1 · . ; \ ··,· ~ '3:. w.ii1WCA1:111W Sll!WQ! la This l< to ..llify that oit '. ~~ TBA NO.: 00790520

, 20D!I; a - and 001r••• copy of tbo above and foregoing do~umont: was B"ClVcd Ott the Dlslrfot Artomoy'$ Office, Fort '.Bend County, TClXas. by band delivery.

Ll!BD,COX COUNSBL POR DEFENDANT i .mp>EB FOR ASETTI!Ui On - - - - - - - - - - • 2009, tho Dofbndant filed a Motion Susgesting Inc¢mpctoncyJ Mental .Retardation 1d Josentty .and Request for Bxa.minatlon. The Court finds that the party is entltl~d to a he.arm~ on this matter, and it fs THEREFORE OR.PER.ED that a.

hearing on. this motion is eet for_~;------~ at _ _ __

JUDGE PRESIDING

lI l I } I 000465 rec OISTRI Cf ClCRK Mer 6 2009 lS:?9 . .... ~­ ' v ~l~t~ Q/~7/ N0.51170 THE STATE OF TEXAS § IN THE DISTRICT COURT § v. t l68T" JUDICIAL DISTRICT I ESPERANZA V. ARZOLA 0 trORT BIND COUNTY, TEXAS ORDQ , 2009, camo to be oonsfdored E3petwa V. As:;ola's Motion Sussostlng Incompolouoy~ Mental .

o\'aluetiona.

Q UJ -u. ..J

000466 fBC OISTRICT CLERK Mar 6 2009 15:29 P.05

vs.

o.o~n.t 02/14 1983 UN wo.1 00135041 ARSON INTEND DAMAGE niQ'llY oJl,>;l\oi:i DA Jlli1J\Y NO.I 08253002 HAB:I'l'~T/P4ACE .OF WOR.SHIB / Fi CJ\UBll NO; 6. .MW!8'r DJl'Rt 09/06/2008 Di '1'1\ZO:t' COin\~ NOi · . SD• September o~, 2008

. G. J. ·WITNijSSES I IN T~E N~E •AND SY AUTHOR!'rY QF TtlE STA'tE OF '.rS-XAS: i .

The dU.ly o~gani·~ec\ Or~.nd Jurfr · o.f . f:ort ~.~n~ County, T~X~e,, prtlse1:1ta in t: .e Dia.tric·t COUl;t of For~ Bend 'C('.\Linty, T~xt'u1, that in ·Fort aenQ. co1..mty·; Texa , 2SP.IPANZA A2Z:OLA, nerea.fter s~yled the Defena1mt, h~reto.for-~ o.n or about S~pt~er 04, 2ooe, di.d then ~d t.here ! ~ PARAORAP~ A start a fire with intent to de.mage or destroy a hnbitation owned or occupied by .Ant.onia U<;iuma al~d j or aodt'rey Uduma and I or Amuohe tJ<:iemezue, knowing· tha~ i~ was l.ocated or( proper·ty belonging to apo.thel': / and. ~aiQ. llabit.ati'on was generally locat~d in said county at 16, 335 Be.r etta Ct., Mi.oz;Jou,ri 9ity, Texas. ~ ' It i's fUJ:'ther preeanl;:.ed that dhr.i ng the .eornmieeion of t.he above. d1,3scribed offense, the Defendant did then and there ue~ and exhibit a deadly weapon, to w:it 1 fire and a cigarette lighter, that in the ma·n ner of its use and · intended u13e Wfl.S ca,pable of ca~sing aerio\Ui bodily inju:ry or de~th.

'. PAAAGRAPH B stflrt a fir$ with intent to da:mllge or destroy a habitation owned or oocupied by Antonili tJduma and'; I or Godfrey Ud.uma and I or Amuche ~demezue, knowing that it had !J!ithin it property belonging to another, and n~dd hab;i.tat:i.on was generally ,l.oca:ted in said county at 16, 335 Beret ta Ct. Missouri City, Texas. : It is fuz-ther presented that d~ring t;h~ cotnmi(J.ei~m o! the above descril;>eci <:iffenae, the Defendant did then a.nd therf;l use and exhibit a aee..dly weapon, to wit1 fire and, a cigarette Hghte.~, that in t .h e manner of its uae and intended use was eapable of aa~sing serious.bodily ~njuX'y or death,

000467 .. FBC OISTRICT ClERK Mar &2009 l5:30 P. Ofi

! . atart a fire with intent to damage or d~atroy a habitation owned or occupied by Antonia Uduma. aJ'l(l. I or <3Qdfrey Uduma and / or Arnuahe Udeltle~ue, and he was recklcuse ihy consciously disregarding Wnfllthe.r the burning would endanger the life of some.individual or the eafety of the property of anoth~r, and aaid;habite.tion wae g9.ner~lly located in aEJ.ici county at lEi, 335 Beret ta Ct., ··Mii;Jsouri City, 'l'e}(as. ' It is furt.h:et' l):c-eae.ntei;i. th\l~ 4,u%ing th.e commia.elon of the above deaor1:bed offense, tl\e Defendant did th~n sud. the.re use and eX.:Oibib n cieadly weapon \ t.o witr Ure and a eigarette ~ighte1'.', that in .th~ ina.nner of its use and. intended. use wal;l capable of c~using se:rS.oue bodily lnjti'ry o.r de-ath.

PARAORAP.H D · · I sta.x::t. a fl.re with: .inten-t to· datnage or d,eet:roy a habi~a.tioJt owned or O.cc.upi~d .by Antonia Uduma &nd: I ot Godfr$y Uduma and· I or .Amu.c he Udeme;zu , xnQwing that it wai:J within the· limits of an ineorpor~ted city., to·.. wit; t1,01,.1stcm, and saic;l l'labi~~tion 'tas generally loo,at.ed. ih sai.c;l ooun_ty a~ 16,3 $ B.er~t.t-a Ct:;. / Mi.Bso~ri City, T~pcas.

It ia furt}l&l:' priasented that ~uring the connnisaion of the ~bove describe<\ o~fenae, the Defendant did then and there use and exhiki1t ~ deadly weapon,• to witl ·fire and a cigl\rette ~ighte:r, that ill .the manne;- of its u~e ·and intenc\eq. uGe was capable of o~uaing serious bodily injU:ry or death. i

\

AGA:N$~ WHE ~EACE AND D:GNX'l'Y ( p~ ~HS S~A'l'E.

I :CNTJl:C~N'J1 •i l .

000468 .. FDC DISTRICT CLERK Mer G 2009 15:3D P.07

Wll<I: UZ.tOtt · .d m 1c~ #a.o~<e·J f UlS~Ot C.S'rlJ# vs.

o.o.e.r 02/14/1983 8PS NO<l 0()135041 ni:.oin- OHM1.Cll1 1\GG ASSAULT W/DEADtY Di. Slm\'t N0.1 09057039 WEAPO?i / F2 . .~ . "'1W:ll1' l)A'llh NA/GJ 04, 2008 Q80~5l

a;J., WITNESSES;.

I .

· Y OF T ' 'The duly organized Grand Juxyf of Fort Bend count;y, 'l'exas, pr~eents in t e .District Court of J:'ort Send Ctjunty, 'l'~x~s, that in Fort Bend count.Yi 'l'exa , BBPEMNZA AP.ZOIJ\, hereafter Eityled th~ O.efendant, · heretofore on or al:)o ,se2te'£!"l>er 04 1 . 2009 1 did th~n ~nd ther~ intentionally, know1n$ly, a reck.leaely cause bodily injurr to JENNY WAGNER by starting a fire with \ oigarette lighter to a pJ.ece o'f. paper on· a bed i.nside a :t"esid.ence located 16,335 Beretta tt., Missouri C!ty, Texas, in wnic~ Jenny Wagner was looat \ at the time which the eaid fi~e was ignited, and. tba defendant did then a thfl)re u.ee and exhibi.t a deadlyt weapon, to-witi f.~re and a oiga.rette l:ighte , that in the manner of its use (Ind intended use was capable of causing aerie a b~dily injury or death, durin~ the commission of said assault. u::i ~- • \ ; 0 • p.; I ~. l::tV1' i = \ \ < . ._ ; J I a 1- lE AGA!Na~ TH~ ~EA.CE AND ~zGNt~¥ or ~HE ' sT~~m. \I " I -~KEGRAN'O JURY • tt/DA)

000469 . ' FBC DISTRICT ClERK Her 6 2009 15:30 P. ll8

t ~~~ STA~E OF TEXAS IQl(S:UltXOlt sic- 10.0, !bl Ill o.ne- Ut.001~ va.

Fl fl). JUf:l\Y lf , 1 09051()3 $ OAV8l!l tlOI

080.$51

IN TH~ NAME AND BY AUTHORITY OF ~ 'l'HB STATE . . OF- .. TmXAEh . \ The duly oigat'\~~eG. Gran~ Ju~i of Fort Band eountYi· Taxas, presents in t e Diat:r:ict Cot.trtr of Fort; Bend C<:hu1ty, Tex.as, that in Fort Bend County, Texa , !S~ClU\NZA AS\:OLA.,· hereaf~e~ s~yied. the J)efeu:td.o,nt, .heretofore o.n or about Sept:gm!?e2" 04:, 2009, did then C!Jnd. thore ' PARAGRAPH A.

11:1tending to cau.ee serious • injury to an individ\lal., t.he .eaid bodily I l De.fendant did then and there ~mmit an L\qt:. clearly dangero\ls to human lif , to witi star~ a fiJ;·e with a cliga~tt.e ligl,\ter to a pi~ae· of pape-r on ~ be in a r:es1den¢e located at 16,3IlS 9erett(\. Ct., Mis.eouri C!ity, Tex~a,.th.ereb \; causing th£! d(!lath of an ind.ivi!dual named .Tanya James. \ l i PARAGRAPH B ' } intantionally and kn0wingly co)nmit the felony offense of Ai:son of a ~eaidenoe lo~c~ed at 16,335 Ba~etta Ct., ~issouri City, Texaa, and while the couJ:"ee of and furt;.h.erance 'of t.he commissi.o.n ·of eaid offense of Arson did then and thQr.e commit an a·i;it oleal:ly dangeroue to human life, to wit: atal:t a Eire with a cigarette ~ighter to a piece of paper on a bed ineide residence located at 16;335 Be)ret:ta Ct.., Miaao-uri City, Texas, wit.h at least 4 individuals inaide the,residenoe at the time which the eaid fire wal!il ignited and clid thereby ca:~ae the death of .s~id indivi~ual name.d Tanya .:Yamee. ~

. ~ " .. ·r: ~· I ·,~~ HIL ;;£1~ Gil \j I

xNDrotimN~ I Ih •.tnA) . ·1, '; J _·l . j i II I

000470 NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT OF JENNI WAGNER, AN § INCAPACITATED ADULT, § Plaintiff, § § v. § HARRIS COUNTY, T E X A S § FOUR J'S COMMUNITY LIVING § CENTER, INC., ANTHONIA UDUMA, § AND GODFREY UDUMA, § Defendants. § 269TH JUDICIAL DISTRICT DEFENDANTS' BRIEF ON JURY'S FAILURE TO FIND NEGLIGENCE ON ESPERANZA ARZOLA TO THE HONORABLE JUDGE OF SAID COURT: Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma, file this brief on the jury's failure to find negligence on Esperanza Arzola, as follows: INTRODUCTION Plaintiff and Intervenor sued Defendants for injuries to Jenny Wagner and the death of Tanya James in a fire at the Four J's Community Living Center. Esperanza Arzola started the fire. Yet the jury found no negligence on Esperanza Arzola. In their motion for new trial, Defendants argued that the jury's failure to find any degree of negligence on Esperanza Arzola was so against the great weight and preponderance of the evidence as to be clearly wrong and require a new trial. This brief discusses that issue and responds to the briefs filed by the Plaintiff and Intervenor, which briefs argued that the act of Esperanza Arzola setting the fire was not a proximate cause of the injuries, or that the Defendants' negligence was a superseding cause. For the reasons discussed, Defendants ask this Court to grant a new trial.

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 1

000471 ARGUMENT 1. Esperanza Arzola 's mental disability does not excuse her negligence As a preliminary matter, it is necessary to discuss Esperanza Arzola's mental disability. Throughout the trial, and in their briefs, Plaintiff and Intervenor focused on Esperanza Arzo la's mental deficiencies, even to the point of presenting evidence that she was declared incompetent to stand trial in the later criminal case. In her testimony, Patty Wagner said, "I don't know how you can blame someone who has all the problems that Esperanza seemed to have. I don't think she was mentally competent in being able to understand consequences forher actions." (Tr. Vol. 1, 10-17-11, at24). However, it is important to note that in a civil case, unlike a criminal case, a person's mental deficiencies do not excuse negligence.

Although Texas has not addressed the issue directly, the majority of jurisdictions hold that disabled persons, like Esperanza Arzola, are subject to tort liability under the reasonable person standard of care. See, e.g., Jankee v. Clark County, 235 Wis. 2d 700, 733-34, 612 N.W.2d 297, 312 (Wis. 2000) ("Wisconsin, like the majority of states, holds mentally disabled defendants to the reasonable person standard of care."); Prosser & Keeton, THE LAW OF TORTS § 135, at 1072 (5th ed. 1984) ("Mentally disabled persons usually have been classed with infants, and held liable for their torts."). The rule has its origins in the 17th Century. Jankee, 612 N.W.2d at 312.

The rule is explained in the Restatement (Second) of Torts, as follows: Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under the circumstances.

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 2 000472 Id. at§ 283B; see also § 895J ("One who has deficient mental capacity is not immune from tort liability for that reason."). The rule has arisen because the difficulties in drawing the line on who will or will not be responsible. Id. at § 283B, cmt. b. Thus, those with mild disabilities, and those with severe disabilities, including lunacy, are all held to the same reasonable person standard. The Restatement further explains: Insane persons are commonly held liable for their intentional torts. While there are very few cases, the same rule has been applied to their negligence.

As to mental deficiency falling short of insanity, as in the case of stupidity, lack of intelligence, excitability, or proneness to accident, no allowance is made and the actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even though it is in fact beyond his capacity to conform to it.

Id. at§ 283B, 1 cmt. b.

Indeed, the jury charge in this case did not provide a lesser burden for Esperanza Arzola, but held her to the same burden of ordinary care as the Defendants. Thus, it cannot be argued that Esperanza Arzola can be excused for her negligence or relieved of responsibility for her negligence because of her mental disability.

2. Esperanza Arzola's act of setting the fire was a proximate cause of the injury It is undisputed that Esperanza Arzola set the fire that caused the injuries to Ms. Wagner and the death of Ms. James (Tr., Vol. 2, 10-18-11, at 40, 51-52, 207-12, 288-89).

Plaintiff and Intervenor do not argue that Esperanza Arzola' s acts in setting the fire were not negligent. Instead, Plaintiff and Intervenor argue that Ms. Arzola's conduct was not the proximate cause of the injuries. They are mistaken.

Texas has cited the rule, but did not apply it because the case involved a four year old child.

See Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971) (holding that four year old child could not be negligent).

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 3

000473 Proximate cause has two elements-cause in fact and foreseeability. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 222 (Tex. 2010). "Cause in fact," or "but-for" causation, "is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id.; Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002) ("To establish cause in fact, or 'but for' causation, Gil-Perez must show that Southwest Key's negligence was a substantial factor in bringing about his injury and without which no harm would have been incurred.").

Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).

Esperanza Arzola's act in setting the fire was the but-for cause of the injuries. Her act in setting the fire was a substantial factor in bringing about the injuries, without which the harm would not have occurred. And the fact that people would be injured or killed by fire is certainly foreseeable. Thus, there would be no basis for the jury to conclude, if it did, that Esperanza Arzola 's negligence was not a proximate cause of the injuries.

3. The conduct of Four J's or Mrs. Uduma was not a new and independent, superseding, cause Plaintiff and Intervenor also argue that Defendants' negligence in providing Arzola access to the lighter, or in failing to supervise Arzola, or in failing to remove Ms. Wagner or Ms. James from the fire was a "new and independent cause" that superseded the negligence of Esperanza Arzola. That is also incorrect.

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 4

000474 There are four reasons why the alleged negligence of the Defendants was not a new and independent, supersededing cause.

First, a superseding cause must not only be "unforeseeable, but its consequences unexpected." Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451(Tex. 2006). Here, all of the alleged acts of negligence by the Defendants were part of the foreseeable chain of causation begun when Arzola started the fire, or that led to Arzola starting the fire.

Second, a superseding cause "is one that alters the natural sequence of events and produces results that would not otherwise have occurred." Id. Here, the same results occurred from the concurring negligence of Arzola and Defendants, as alleged.

Third, "[a]n intervening force will not break a causal connection if that force was itself probable or foreseeable by the original wrongdoer." Id. Certainly, an ordinary person setting a fire could foresee that people could be injured or killed if they could not exit the group home in time.

Finally, a superseding cause must cause "injury different from that which might have been expected at the time of the original negligent act." Id. at 451-52. Or, as the Supreme Court held in another case, "where the risk resulting from the intervening act is the same risk resulting from the original actor's negligence, the intervening act cannot be classified as a superseding cause." Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 859 (Tex. 2009). Here, the same injuries and risks resulted from both Arzola's act and Defendants' alleged acts or omissions.

Thus, Four J's or Mrs. Uduma's acts or omissions were not new and independent causes that superseded Esperanza Arzola's negligence.

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 5 000475 4. Because the jury's finding of no negligence of Esperanza Arzola is against the great weight and preponderance of the evidence, this Court should grant a new trial Esperanza Arzola's negligence in setting the fire was the but-for cause of the Plaintiff's and Intervenor's injuries. Yet, the jury found that Esperanza Arzola committed no negligence. That finding is so against the great weight and preponderance of the evidence as to be "clearly wrong." See Cropperv. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

In such cases, where the jury's finding of no negligence is clearly against the great weight and preponderance of the evidence, the Court should grant a new trial. Id.; Caterpillar Tractor Co. v. Cropper, 767 S.W.2d 813, 816 (Tex. App.-Texarkana 1989, (on remand) writ denied), 777 S.W .2d 79 (Tex. 1989) ("In the face of these admitted facts, a failure to find any negligence on Cropper's part is against the great weight and preponderance of the evidence."); see also Castro v. Hernandez-Davila, 694 S.W.2d 575, 577 (Tex. App.-Corpus Christi 1985, no writ) (holding that jury's finding of no negligence on Davila, who caused the collision, was so against the great weight and preponderance of the evidence as to be manifestly unjust and require a new trial); Dellolio v. Brown, 399 S.W.2d 425, 427-28 (Tex. Civ. App.-Houston 1966, no writ) (holding that jury's failure to find negligence and proximate cause on Mrs. Brown was so against the great weight and preponderance of the evidence that the judgment must be reversed and remanded); Guffey v. Borden, Inc., 595 F .2d 1111, 1112-14 (5th Cir. 1979) (holding that where Guffey clearly failed to act as an ordinary prudent man and the jury failed to attribute any degree of negligence to Guffey, the trial court erred in failing to grant a new trial).

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 6 000476 Where the Court grants a new trial because of factual insufficiency, or against the greater weight, the Court should delineate its reasons for doing so. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); see In re Columbia Med. Ctr. of Las Colinas, 290 S.W .3d 204, 209 (Tex. 2009) (holding that a court must state its reasons for granting a new trial). For that reason, in the proposed Order Granting New Trial (attached), Defendants have set forth the reasons for granting new trial, based on the arguments addressed in this brief.

CONCLUSION Because the jury's failure to find negligence on Esperanza Arzola is so against the great weight of the evidence as to be clearly wrong and manifestly unjust, this Court should grant a new trial.

Respectfully submitted, PLUMMER & KUYKENDALL

James C. Plummer Texas Bar No. 16075700 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 Telephone 713.522.2887 Facsimile 713.522.3605 THE HOLMAN LAW FIRM, P.C.

s/David W. Holman David W. Holman Texas Bar No. 09902500 Greenway Plaza, Suite 2000 Houston, Texas 77046 Telephone 713 .400.4840 Facsimile 713.400.4841 Attorneys for Defendants Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 7 000477 CERTIFICATE OF SERVICE I hereby certify that on March 23, 2012: This document was filed via Texas.gov electronic filing system, and the required number of copies was forwarded to the Court by regular mail or express mail.

This document was forwarded to the following via Texas.gov electronic filing system and/or electronic mail: Attorneys for Plaintiff Mr. L. Lee Thweatt Mr. Russell S. Post Mr. Joseph D. Terry Ms. Constance H. Pfeiffer TERRY & THWEATT, P.C. BECK, REDDEN & SECREST, LLP One Greenway Plaza, Suite 100 1221 McKinney, Suite 4500 Houston, Texas 77046 Houston, Texas 77010-2010 Telephone 713.600.4710 Telephone 713.951.3700 Facsimile 713.600.4706 Facsimile 713.951.3720 Attorneys for Intervenor Mr. Shelton Sparks Ms. Tiffany Harvey SHELTON SPARKS & ASSOCIATES Cordell Street Houston, Texas 77009 Telephone 713.862.5533 Facsimile 713.862.4913

s!David W. Holman David W. Holman

Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola 8 000478 NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT OF JENNI WAGNER, AN § INCAPACITATED ADULT, § Plaintiff, § § v. § HARRIS COUNTY, T E X A S § FOUR J'S COMMUNITY LIVING § CENTER, INC., ANTHONIA UDUMA, § AND GODFREY UDUMA, § Defendants. § 269TH JUDICIAL DISTRICT

ORDER This Court has considered the pleadings, arguments and trial briefs of the parties on the issue of a new trial in this cause. The Court is of the opinion that the Defendants' Motion for New Trial should be granted.

The reason for the Court's grant of new trial is that the jury's failure to find negligence on Esperanza Arzola, who started the fire that was the cause-in-fact of the injuries to Jenny Wagner and the death of Tanya James, is so against the great weight of the evidence as to be clearly wrong and manifestly unjust. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651(Tex. 1988). It is, therefore ORDERED that the Court's Final Judgment entered on January 13, 2012 is vacated and this case is to be placed on the Court's docket for a new trial.

SIGNED this_ day of _ _ _ _ , 2012.

Judge Presiding

000479 27/'2012 16: 44 713-755-2333 269TH DISTRICT CXl.R1 PAGE 02/ 02 Flied 12 Much 23 Pl:-55 Chris Oel\lel • Oi:strilh Clerk Harri• County ] l!0101J01GTt"266 d NO. 2009.... 0915 By· K•thy BoP i1 P.~TTl J . WAGNER, AS GUARDIAN § JN THE DISTRJCT COURT ~ OF JENNI WAGNER, AN § INCAPACITATED ADULT, § I:I ~ Plei.ntiff, § § v. § HAllRIS COUNTY, TE x As I § FOUR I'S COMMU1'!1TY LIVING § CENTER, INC., ANTHONIA UDUMA, § AND GODFREY UCUMA, § Oefendlints. § 269TH JUDICIAL DISTRICT

QBDEB i This Court has considered tae pleadt11gs, arguments and trial brie fs of the parties o~ ,I 'i 1be issue of a new trial i n this <:lluse. The Coun is of the opinion that the Oefeodanu· Motioi!

I for New Tri•l should be granted.

The reason for the Court's grant of new trial is that the jury's failure to fill ~ I neghgeace oo Esperan~a Ano la, wto started the fire that wu the cause-in-fact of the injurie ~ JeM y Wagner and t.be death ofTenya James, is so against tbc great weight oftbe cvidenc~ as to be clearly wrong :and manifestly unjust.

II See Cropp1r v. Caterpillar Tractor Co., 7 5~ S.W.2d 646, 6' 1 (Tex; 1988). ltis, therefore II ORDERED thl~ the Comt's Final Judgment entered on lanu•ry 13, 2012;, vacate~ and lhis case js to be placed on the CoUTt~s docket for a new trial.

SIGNED thiJ7~y orl--'-n:..k ' 2012. l ii il.,~..cz !l!

Judsc Presiding

I.

000480 Filed 12 April 10 A9:50 Chris Daniel - District Clerk Harris County ED101 J016820569 CAUSE NO. 2009-40925 By: jeanetta spencer PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF WAGNER, AN INCAPACITATED ADULT, § § Plaintiff, § § § HARRIS COUNTY, TEXAS v. § § FOUR J's COMMUNITY LIVING CENTER, INC.; § ANTHONIA UDUMA; and GODFREY UDUMA, § § Defendants. § 269TH JUDICIAL DISTRICT

MOTION FOR RECONSIDERATION OF ORDER GRANTING NEW TRIAL

Plaintiff Patti J. Wagner ("Ms. Wagner"), appearing as guardian of Jenny Ann Wagner ("Jenny Ann"), files this motion for reconsideration of the order granting a new trial.

INTRODUCTION Counsel for Plaintiff Patti J. Wagner come before the Court with the greatest humility.

After careful and conscientious review of several post-trial motions, the Court has set aside the jury's verdict on the rarest of grounds: factual sufficiency. That standard allows for a new trial only if the evidence is so overwhelming that the verdict can be described as "manifestly unjust." In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 664-65 (1951). It requires this Court to be convinced that the jury was motivated by "something other than conscientious conviction." Lehmann v. Wieghat, 917 S.W.2d 379, 385 (Tex. App.-Houston [14th Dist.] 1996, writ denied).

We have failed the Court, failed our client, and failed this jury-which worked conscientiously to return a just and fair verdict in light of the evidence and the Court's instructions-by failing to explain the reasonable basis for their verdict. With greatest respect, we ask the Court to allow us an opportunity to make amends for that failing. The jury verdict should not have been set aside.

No matter what one thinks of Ms. Arzola's conduct in setting a fire, the subsequent negligence of Four J's caused the injuries. For that reason alone, the jury's verdict was fair and just.

000481 ARGUMENT In their trial brief, Defendants maintained that "[i]t is undisputed that Esperanza Arzola set the fire that caused the injuries to Ms. Wagner." That is not accurate. It is undisputed that Ms. Arzola set the fire, but the jury heard extensive evidence establishing that only Four J's negligence caused the injuries. This distinction is no small point, and it was a serious omission in Defendants' response. This Court may focus only on Defendants' negligence after the fire, because the jury heard extensive (and in some cases undisputed) evidence allowing it to find that Four J's post-fire negligence was the only cause of the "injuries in question." Defendants completely ignored the distinction between causing an "occurrence" and causing an "injury," and they completely ignored the evidence making this distinction critical in this case. Further, they mistakenly treated the new and independent cause instruction as an abstract legal question, failing to acknowledge that the evidence must be judged by the law given in the Court's Charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). This Court gave that instruction at Defendants' request; they should not be heard to argue it does not apply.

This motion addresses serious mistakes in Defendants' analysis of the Court's Charge, and it highlights where Defendants have no answer to the evidence supporting the verdict.

Finally, it points out that Defendants' proposed order was deficient-and that the deficiency relates directly to the illegitimacy of their factual sufficiency challenge to the verdict.

I. Defendants Ignored the Distinction Between Causing a Fire and Causing Injuries.

The jury was specifically asked about "negligence, if any, [that] proximately cause[d] the injuries in question." Court's Charge, Question 1 (emphasis added). This question was proper, as it focused the jury's attention on the ultimate harm. No one was complaining about damage to the house, which was undoubtedly caused by Ms. Arzola. The issue was distinctly different: Who negligently caused injuries to a person who should have safely escaped?

000482 Ms. Wagner made this point in her trial brief, noting that the Pattern Jury Charges recognize that some cases arise in settings where there is a meaningful distinction between causing an "occurrence" and causing an "injury." This is such a case. Even though Ms. Arzola set the fire, the jury could find that only Four J's caused the "injuries in question." Defendants said nothing about this distinction, conceding by their silence that there can be a difference between causing a fire and causing "injuries in question." They focused on the standard of care applicable to mentally retarded persons, which is a straw man. It is no answer to say that Ms. Arzola can be found negligent when the real issue is causation. Equally important, Ms. Arzola's mental retardation informs the standard of care for Defendants, who were charged with supervising their clients and safely removing Ms. Wagner from danger before anyone else.

II. Defendants Ignored the Fact Issues Regarding Foreseeability.

Defendants next argued (without analysis) that Ms. Arzola's act of setting the fire was a proximate cause. Their framing of the question fails to account for their subsequent negligence.

The right question is: Is it foreseeable that a professional caregiver who is trained in fire safety, who has a fire extinguisher, and who (supposedly) conducts regular fire drills, would not even try to extinguish the fire or remove her first-priority client to safety? The jury could fairly find that even if Ms. Arzola was responsible for setting the fire, she should not have foreseen that the Defendants would respond so inadequately that they would expose their residents to danger.

In analogous circumstances, a jury found that a party who set a fire did not proximately cause injuries because it was unforeseeable that rescue efforts would be botched by a malfunctioning fire truck. See City ofBishop v. S. Texas Elec. Co-op., Inc., 577 S.W.2d 331, 335 (Tex. App.-Corpus Christi 1979, no writ). That verdict was upheld because, while setting a fire furnished a condition that made injuries possible, the jury was free to find the subsequent "failure" to act was unforeseeable and thus the "efficient cause" of the injuries. Id. at 336.

000483 There is absolutely room for a jury to conclude that these injuries were unforeseeable, especially given the unique facts of this case. Not every fire causes injuries, and it is not necessarily foreseeable that a small fire set in one part of a house will injure people in another part of the house-particularly when a professional caregiver has both the time and the training to remove them to safety. Even holding Ms. Arzola to the "ordinary person" standard of care, this jury could certainly find it unforeseeable that a caregiver would abdicate her duty to remove Ms. Wagner from harm's way. This is precisely the sort of fact-finding where jurors are entitled to use common sense in assigning fault. See Glover v. City of Houston, 590 S.W.2d 799, 801 (Tex. Civ. App.-Houston [14th Dist.] 1979, no writ) (citing Enloe v. Barfield, 422 S.W.2d 905 (Tex. 1967); Farley v. MM Cattle Co., 529 S.W.2d 51, 756 (Tex. 1975) (citing Prosser, LAW OF TORTS§ 41 at 237 (4th ed. 1971)). This jury conscientiously took upon itself that solemn duty, and its common-sense verdict was both rational and just. It is entitled to respect.

III. Defendants Incorrectly Analyzed the New and Independent Cause Instruction.

The most egregious mistake in Defendants' trial brief (and perhaps the most misleading) was treating the "new and independent cause" instruction as if it were an abstract legal question.

The posture of this case does not allow for that. The new and independent cause instruction was given in the Court's Charge without objection. Indeed, this inferential rebuttal theory was pleaded in Defendants' Live Answer and included in the Court's Charge at Defendants' request.

The evidence is therefore measured by the Court's Charge and not some other legal framework, and in that evaluation, the instruction is given a common-sense meaning.

The only question now is whether the jury had evidence from which it could determine that Defendants' negligence operated to "destroy" any "causal connection" that might exist between setting the fire and the grievous injuries that ensued. Defendants refused to say one word about this evidence in their trial brief-for good reason. The answer is absolutely "Yes."

000484 A. The Evidence Is Measured by the Court's Charge.

Defendants mistakenly focused their argument on abstract legal propositions rather than the law as it was stated in the Court's Charge. But when a party does not object to the charge, the charge becomes the controlling framework for sufficiency review: "[I]t is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (citing TEX. R. Crv. P. 272, 274, 278, 279; Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985); Allen v. American Nat'! Ins. Co., 380 S.W.2d 604, 609 (Tex. 1964)). This rule precludes Defendants from requesting a new and independent cause instruction and later arguing that the jury could not rely on this instruction to reach its verdict.

Further, inferential rebuttal instructions cannot be narrowed after the fact with technical legal rules that do not correspond to the common and ordinary meaning of the words used in the jury instructions. As the Supreme Court explained in reference to another inferential rebuttal theory in Dillard v. Texas Elec. Coop., 157 S.W.3d 429 (Tex. 2005), even if inferential rebuttals are classically associated with specific situations, "the instruction's language is not so limiting.

The instruction merely informs the jury that it may consider causes of the occurrence other than the negligence of the parties." Id. at 433. The holding in Dillard is fatal to Defendants' theory.

Here, too, the "new and independent cause" instruction allowed the jury to find that Defendants' negligence after the fire started "destroys the causal connection" between any negligence of Ms. Arzola and the ensuing injuries. See Question 1. Indeed, the instruction's purpose is "to advise the jurors, in the appropriate case, that they do not have to place blame on a [particular actor]" if the true cause for the accident lies elsewhere. Dillard, 157 S.W.3d at 432 (citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)). This instruction allowed the jury to determine the true cause of the injuries, and it did so conscientiously.

000485 B. Defendants Completely Ignored the Evidence About What Caused the Injuries.

The most striking omission in Defendants' trial brief was that they did not say one word about the evidence of post-fire negligence. They did not cite the record at all in support of their argument about causation. If the "great weight" of the evidence contradicts the jury's verdict, where is it? It should trouble the Court that Defendants relied only on abstract legal propositions and ignored the evidence. A new trial sufficiency argument should not be divorced from the Court's Charge and the record.

By contrast, Ms. Wagner devoted half of her trial brief to post-fire causation evidence.

Under the standard of review, where all evidence in support of the jury verdict must be credited, this post-fire evidence of negligence cannot be ignored. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Defendants ignored the obligation to consider "all of the evidence in the case," id., and as a result, they utterly failed to demonstrate that "the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust." Id. 1. Four J's failed to remove Ms. Wagner first, according to fire escape plans.

The evidence of Four J's subsequent negligence provided ample basis for the jury to find that Four J's negligence was a superseding cause of the "injuries in question." Ms. Udemezue confessed that she panicked instead of trying to remove her most helpless clients from the house: Q. When did you first become aware of the fire?

A. I heard the big, the alarm, you know, go off. So I heard a big bang, boom, like somebody pulled iron or something. I heard a big bang, you know. Then my mind went outside. I said again, let me find out what's happening. I rushed outside.

When I rushed outside, I saw -- because Esperanza's, Esperanza's window is very close to the front door. So I, I kind of saw the -- it was -- I mean, the fire was too much. I couldn't believe myself. And I rushed back. I came inside. I shut the door.

I was confused. I didn't know what to do. I went to Elisha's room. When I went to Elisha's room, all of them they were sleeping. I started shaking her. Excuse me. I'm sorry. (Crying.) I shook her.

Q. After you shook her, what happened?

000486 A. She got up. I took her outside. I took her outside. So when I took her outside, I came back. Already, Esperanza had already opened that door. So when I came back, I was, like, going towards Jenny and -- Jenny and Tanya's room. When I came back, there's -- I looked at that door. I started panicking when I looked at Esperanza door. And it dawned on me that all of us, because the fire is very close to Esperanza's -- the window is very close to Esperanza -- the front door. So when I saw that and I don't have the key, and my hands, my legs started shaking.

Q. So are you saying that you realized - are you saying that you realized that the back door, the exit, is that what you are talking about?

A. Yes.

MR. PLUMMER: Objection, leading.

THE COURT: Overruled on this one.

Q. (By Mr. Sparks) Are you saying that you realized the back door, the exit, was not an option for you to leave out of, had you been able to get Jenny and Tanya?

A. I got only one door there. If that fire gets to that front door, that's it. We are finished. The garage door is broken. That door and the garage, you know, one small door. I don't have the key. I have access to just only one door. So when I looked at that thing and I said, if anything happens, me too, I will get burned. That was when my hands and legs started shaking. I became -- I started panic.

Q. What happened after that, ma'am?

A. Then I couldn't use the house phone because I was actually -- I was moving around. All the calls I made was on my Cricket phone. All the calls I made, all the calls I made was on my Cricket phone. Then I had to use the same Cricket phone.

When I stepped -- it was then that I started calling Esperanza, Esperanza. Then we went out together. I was in front of that door, using my Cricket phone. Well, my hands were shaking, my legs. I was shouting and nobody -- because that place is a lonely place, you know. You hardly see people moving around. But I went to the neighbors. I was shouting. Nobody came out. Then I knew the time -- I runs across to the other side to -- was shouting so that people will come out and come and help me. But I can't remember. That was the last thing. Even when the, when the, the 911 came, I passed -- I think -- I didn't know anything again. I was -- I woke up in the ambulance.

Q. So you passed out?

A. Yeah.

3 RR 181-82.

000487 Ms. Udemezue testified that she could have gotten Ms. Wagner out, except that she panicked: Q. And as you had been instructed, you could have gone in Jenny's room, lifted her up, put her on, on the floor on, on a comforter or blanket, and drug her out, right?

If she was real heavy, right? You could have done that.

A. I could have. I could have done that.

Q. So all the training in the world would not have helped you in this situation because you panicked; is that right?

[overruled objection and question read back] A. Yes ....

3 RR 213-15; see also 3 RR 248-49 (fire extinguisher was not used).

This testimony was undisputed. The jury was not free to disregard this testimony.

Indeed, the verdict reflects that the jury properly credited it.

There was more than just general evidence about Ms. Udemezue panicking. There was also evidence that she failed to follow the standard of care with regard to who she helped first.

Had Ms. U demezue followed the rules, she would have removed Ms. Wagner first: Q. If Jenny is not the first person removed from the home, that means that Four J's rules were not followed, right?

A. Correct.

Q. That means one of Four J's employees didn't do their job, right?

A. Correct.

Q. The standard of care, I think you are telling us, requires that Jenny be removed first, right?

A. Correct.

4 RR 3 9. This fatal confession means that Ms. Wagner should have escaped uninjured.

Because several people escaped safely, the jury was entitled to find that Ms. Arzola's negligence did not proximately cause the injuries of the very person who should have escaped first.

000488 On this point, there is no contrary testimony. No one testified that they could not remove Ms. Wagner. Instead, Ms. Udemezue admitted she did not try to remove Ms. Wagner.

We can all sympathize with her panicked state, but the fact remains that her negligence cut off the causal chain from the negligence in setting the fire. If Four J's had acted according to the standard of care, this would be a property damage case. It was Four J's subsequent negligence that turned this case into one for wrongful death and personal injuries. The jury was entitled to reach precisely that conclusion, and on this point, Defendants have no answer.

2. Four J's bore responsibility for the lack of adequate egress.

The jury could have also found that everyone would have escaped safely-and perhaps even that Ms. Udumezue would not have panicked-if Defendants provided adequate egress.

Evidence about the lack of egress permeated the trial. Ms. Wagner's liability expert summarized this evidence succinctly: Q. In a residential group home facility, such as the one we saw at Beretta Court, is there an industry standard of care with relation to fire exits, how accessible those exits should be in the event of a fire?

A. All means of egress should be clear of obstacles, to include a locked door. But should be even clear of obstacles in the way. Even a chair in front of them is not permitted.

Q. And would a deadbolt lock that requires key access in the event of an emergency, a fire, is that something that would meet the standard of care in your industry in a residential group home?

A. The only way it would meet the standard of care is if all residents in the home had access to the key and that they could mentally and physically be able to open up the door with the key. That would be acceptable.

Q. And you know, certainly, from Jenny's Wagner's condition that she never could have met that criteria in the Beretta Court Home.

A. No. RR247-48.

000489 Ms. Udumezue testified that she panicked because of the lack of egress: "I panicked because I, I got just one exit. I would have tried my best if I had another door in that house." RR 215. In addition to the locked back door, she testified that the garage door was broken and could not be used to escape. 3 RR 215. She had only one way to get four mentally disabled people out of the house. 3 RR 215.

What did Defendants say about the lack of egress in their trial brief? Not one word.

They ignored it because the lack of egress can cut off Ms. Arzola's negligence in starting the fire.

Imagine a group home with plenty of exits and with unlocked doors. In that scenario, one can easily imagine that Ms. Udumezue would have remained calm enough to remove Ms. Wagner.

Ms. Udemezue said as much when she admitted she panicked because she only had one exit.

3 RR 215. There was no evidence that it would have been impossible to remove everyone if there were adequate egress. Therefore, the jury could reasonably determine that if Four J's had provided adequate egress, there would have been no physical injuries.

These kinds of scenarios are exactly what juries weigh when they determine causation.

The jury was entitled to imagine what would have happened if Four J's had working doors, and its verdict reflects its collective judgment that adequate egress would have prevented the injuries.

That fact-finding is unassailable, which is why Defendants did not even try.

For either of these reasons-Ms. Udemezue's abdication of her duties or Defendants' failure to provide adequate egress-the jury had a common-sense, rational basis to determine that Defendants' negligence was a new and independent cause of the injuries. This conclusion flows logically from an instruction that one cause can "destroy the causal connection" of another and "become the immediate cause." See Question 1. The jurors were entitled to rely on the Court's instruction to reach a common-sense conclusion, using their lay intuition about the concept of causation. See Dillard, 157 S.W.3d at 433. Their verdict was perfectly rational.

000490 Instead of grappling with this evidence, Defendants simply argued that the fire was a "but-for cause" of the injuries (which is undisputed), and cited a string of inapplicable cases.

See Defendants' Trial Br. at p. 6. The cases they cited involved reversals in negligence cases where the disputed fact issue was not causation but breach. Those cases are irrelevant, and they confirm that Defendants cannot answer the evidence in support of the verdict.

IV. Defendants Provided a Deficient Order That Betrays Their Deficient Challenge.

Because this Court signed Defendants' proposed order, we must note that the order reflects the flaws in Defendants' analysis and it fails to meet the standards for new trial orders.

First, the order betrays the Defendants' conclusory focus on the cause-in-fact element of proximate cause to the exclusion of the foreseeability element-where the evidence in this case easily supports the verdict. The order states that the fire was a "cause-in-fact of the injuries to Jenny Wagner." This is not disputed, and more importantly, it does not lead to the conclusion that the verdict is against the great weight of the evidence. This Court would need to be convinced that, on this record and given the unique facts of this case, it would be manifestly unjust for the jury to determine Ms. Wagner's injuries unforeseeable or to find that Defendants' subsequent negligence cut off Ms. Arzola's liability. The order is silent on those issues.

Second, while Defendants knew an order granting a new trial must "specify the reasons," In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 215 (Tex. 2009), they nevertheless provided a deficient order. According to the supreme court, "[t]he reasons identified should be clearly identified and reasonably specific." Id. The order fails to do that.

An order granting a new trial because the evidence is "against the great weight of the evidence" is just as vague as an order granting a new trial "in the interest of justice." It is a reason that is simply a shorthand phrase for a much more complicated analysis. But it can also conceal misguided analysis or be a fa<;:ade for no analysis at all.

000491 Thus, the supreme court has set out specific requirements for factual sufficiency review in Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), building safeguards into the process to demonstrate a reviewing court's analysis and ensure the standard is correctly applied: [C]ourts of appeals, when reversing on insufficiency grounds, should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.

Id.; see also Citizens Nat'! Bank in Waxahachie v. Scott, 195 S.W.3d 94, 96 (Tex. 2006).

Trial courts operate under the same constraints: "Trial courts and courts of appeals should be subject to the same standard for a simple reason: no court is free to substitute its judgment for that of the jury." Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987).

This test ensures that a court does not inadvertently "substitute its judgment for that of a jury, because the court cannot exercise its constitutional authority to the detriment of the right of trial by jury, which is of equal constitutional stature." Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

A new trial motion seeking to set aside a jury's verdict based on a sufficiency point puts a trial court in a precarious position. The motion has the potential to erode and compromise the right to trial by jury. See R. Jack Ayres, Jr., Judicial Nullification of the Right to Trial By Jury By "Evolving" Standards ofAppellate Review, 60 BAYLORL REV. 337, 344 (2008). Mindful of these constitutional concerns, the supreme court has granted review in a mandamus proceeding where it is being asked to clarify that trial courts must clearly demonstrate that they have given due consideration to the evidence supporting the verdict before granting a new trial. See In re United Scaffolding, Inc., No. 10-0526 (oral argument heard on 10/06/2011 ).

000492 Although the supreme court has not yet issued its opinion in In re United Scaffolding, we note that the order Defendants proposed in this case is functionally identical to the order being reviewed in the supreme court. Both orders grant a new trial on the basis that the verdict was against the great weight of the evidence, but neither order explains "with specificity, why it has substituted its judgment of the facts and the credibility of the witnesses for that of the jury." See In re United Scaffolding, Inc., 315 S.W.3d 246, 253 (Tex. App.-Beaumont 2010, pet. granted) (Gaultney, J., dissenting).

We do not raise this issue as a technical matter, nor are we interested in mandamus relief.

Our sole objective is to encourage the Court to press the Defendants' grounds for a new trial more critically. The supreme court requires "clearly identified and reasonably specific" grounds for ordering a new trial to ensure that the trial court has a "valid basis" for granting a new trial.

In re Columbia Med. Ctr., 290 S.W.3d at 212. The analysis in Defendants' trial brief was demonstrably incorrect and divorced from the evidence, and if they had presented this Court with "clearly identified and reasonably specific" grounds that tracked the analysis in their trial brief, those flaws would be unmistakable. There is a reason they gave the Court such an oblique order; the reasons given in their trial brief provided no "valid basis" for the order. Id. This Court has shown admirable diligence with the many post-verdict issues in this case.

This final ruling deserves a fresh look simply because constitutional considerations are at stake when a careful and conscientious jury verdict is set aside. We respectfully submit that reviewing the evidence in support of the jury's verdict, using the guidance of Dillard and the methodology in In re King's Estate and Pool, leads to the conclusion that the jury's verdict is sound.

CONCLUSION & PRAYER The Court should grant this motion for reconsideration and reinstate its Final Judgment.

Plaintiff respectfully requests any and all additional relief to which she may be entitled.

000493 Respectfully submitted, BECK, REDDEN & SECREST, L.L.P. By: Isl Russell S. Post Russell Post State Bar. No. 00797258 Constance H. Pfeiffer State Bar No. 24046627 1221 McKinney, Suite 4500 Houston, TX 77010-2010 (713) 951-3700 (713) 951-3720 (Fax) L. Lee Thweatt State Bar No. 24008160 Joseph D. Terry State Bar No. 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, TX 77046-0102 (713) 600-4710 (713) 600-4706 (Fax) ATTORNEYS FOR PLAINTIFF PATTI J. WAGNER, AS GUARDIAN OF JENNY ANN WAGNER, AN INCAPACITATED ADULT

000494 CERTIFICATE OF SERVICE I hereby certify that on April 10, 2012, a true and correct copy of the foregoing Plaintiffs Motion for Reconsideration was properly forwarded to the following counsel of record in accordance with the Texas Rules of Civil Procedure through the Texas.gov electronic filing system or bye-file or fax addressed as follows: James C. Plummer PLUMMER & KUYKENDALL 4203 Montrose Blvd., Ste. 270 Houston, TX 77006 (713) 522-3605 -Fax David W. Holman THE HOLMAN LAW FIRM, P.C.

24 Greenway Plaza, Ste. 2000 Houston, TX 77046 (713) 400-4841 - Fax Attorneys for Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma Shelton Sparks Tiffany Harvey SHELTON SPARKS & ASSOCIATES Cordell St. Houston, TX 77009 (713) 862-4913 -Fax Attorneys for Intervenor

/s/ Russell S. Post Russell S. Post

000495 CAUSE NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF WAGNER, AN INCAPACITATED ADULT, § § Plaintiff, § § HARRIS COUNTY, TEXAS v. § § FOUR J's COMMUNITY LIVING CENTER, INC.; § ANTHONIA UDUMA; and GODFREY UDUMA, § § Defendants. § 269TH JUDICIAL DISTRICT

ORDER

On this day, came on to be heard Plaintiffs Motion for Reconsideration of the order granting a new trial. The Court is of the opinion that the motion should be GRANTED.

It is, therefore, ORDERED, ADWDGED, and DECREED that the Court's order granting a new trial is VACATED and Defendants' Motion for Judgment Notwithstanding the Verdict or, In the Alternative, Motion for New Trial and Defendants' Motion to Modify, Correct or Reform the Judgment are hereby DENIED.

Judge Presiding

Date

000496 NO. 2009-40925 PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT OF JENNI WAGNER, AN § INCAPACITATED ADULT, § Plaintiff, § § v. § HARRIS COUNTY, TEXAS § FOUR J'S COMMUNITY LIVING § CENTER, INC., ANTHONIA UDUMA, § AND GODFREY UDUMA, § Defendants. § 269TH JUDICIAL DISTRICT

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER GRANTING NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT: Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma, file this response to Plaintiff's motion for reconsideration, as follows: 1. INTRODUCTION In her motion for reconsideration, Plaintiff argues that Esperanza Arzola 's negligence in starting the fire in the group home that injured Ms. Wagner and killed Ms. James was superseded by Defendants' "subsequent" conduct1 in: (1) Ms. U demezue "panicking" and failing to remove Ms. Wagner from the fire; and (2) in failing to provide proper egress. See Motion for Reconsideration, at 6-11. In that argument, the Plaintiff does not argue that Esperanza Arzola was not negligent in causing the fire, and, in fact, the Plaintiff concedes

In focusing only on Defendants' "subsequent" conduct, the Plaintiff is not focusing on pre-fire conduct, such as Plaintiffs allegations ofimproper training or equipment. Moreover, the failure to provide proper egress is an allegation of conduct that occurred prior to, rather than subsequent, to the fire.

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 1 000497 that the fire was the cause-in-fact of the injuries to Ms. Wagner. Id. at 11 ("The order states that the fire was 'the cause-in-fact of the injuries to Jenny Wagner.' This is not disputed .. ."). In that argument, Plaintiff also does not argue that Esperanza Arzola' s mental disability excused her negligence. Thus, the primary issue raised by Plaintiff's motion for reconsideration is whether it was unforeseeable to an ordinary person setting a fire in a residential group home that one might panic and not be able to remove all the residents safely. Under Texas law, Esperanza Arzola's setting the fire was a foreseeable cause of the injuries to Ms. Wagner. The Court properly granted a new trial because the jury's finding of no negligence on Esperanza Arzola, the person who started the fire that injured Ms. Wagner, was so against the great weight of the evidence as to be clearly wrong and manifestly unjust.

ARGUMENT 1. Cause of injuries Plaintiff first argues that the Defendants focused on the cause of the fire, and not the cause of the injuries. That is incorrect. Defendants argued that Esperanza Arzola's negligence was the cause of the injuries to the Plaintiff. See Defendants' Brief on Jury's Failure to Find Negligence on Esperanza Arzola, at 3-4. The evidence revealed that Ms. Wagner's injuries were caused by the fire. And, as noted above, Plaintiff concedes that Esperanza Arzola's negligence was the cause-in-fact of Ms. Wagner's injuries. See Motion for Reconsideration, at 11.

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 2 000498 2. Ms. Udemezue's "panic" was foreseeable Plaintiff maintains that Ms. Udemezue's "panic" was unforeseeable and thus should be a superseding cause. Under Texas law, that position is incorrect.

" 'Foreseeability' means that the actor, as a person of ordinary intelligence, should have anticipated the dangers his or her negligent act created for others." Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W .2d 339, 344 (Tex. 1998). To be foreseeable, it is not necessary for the wrongdoer to foresee the exact manner in which the injuries occur. Id. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). In a landmark opinion, the Texas Supreme Court stated: To make a negligent act the proximate cause of an injury it is not essential that the particular injurious consequences and the precise manner of their infliction could reasonably have been foreseen. If the consequences follow in unbroken sequence from the wrong to the injury, it is sufficient that if at the time of the original negligence the wrongdoer might by the exercise of ordinary care have foreseen that some similar injury might result from the negligence.

Atchison v. Texas & P. Ry. Co., 143 Tex. 466, 473-74, 186 S.W.2d 228, 231-32 (Tex. 1945).

In the present case, in an "unbroken sequence," the fire started by Esperanza Arzola cooperated with the negligence of Ms. Udemezue to proximately cause the injury to Ms. Wagner. An ordinary person in Esperanza Arzola's position could certainly foresee that starting a fire in a residential group home could result in injuries caused by fire to those who were not rescued in time.

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting Ne-..v Trial 3 000499 Plaintiff claims that the "panic" in Ms. Udemezue which was caused by her reaction to the fire was unforeseeable. Plaintiff cites no cases for that proposition, or for the proposition that "panic" caused by an actor's conduct can be a superseding cause. There is authority to contrary.

The Restatement (Second) of Torts recognizes that such panic is not unforeseeable and does not supersede the original cause: An act done by another in normal response to fear or emotional disturbance to which the actor's negligent conduct is a substantial factor in subjecting the other is not a superseding cause of harm done by the other's act to himself or a third person.

RESTATEMENT (SECOND) OF TORTS,§ 444 (1965); see. e.g. Sommers v. Baja Foods, Inc., 2004 WL 2384340, at *7 (Cal. App. 2 Dist. 2004, no pet.) (unpublished) ("Furthermore, the law of proximate cause permits a defendant to be found liable when its actions foreseeably cause another to panic and the panicked reaction results in the plaintiffs injury.").

The only case that Plaintiff cites to support her position is City of Bishop v. South Texas Elec. Co-op., Inc., 577 S.W.2d 331, 335-36 (Tex. Civ. App.-Corpus Christi 1979, no writ). That case is a Palsgrafian foray into unforesseability. In City ofBishop, an electric company started a grass fire on the King Ranch. There was no one in the vicinity at the time of the fire. Id at 333. The workers called in volunteer firemen. The volunteer firemen brought a "GI" truck out to fight the fire, but when the water was running low in that truck, they went back to the station for another fire truck. They moved the new fire truck near the firebreak. When the fire was "perilously close" to the fire truck, the firemen attempted to drive the truck away, only to have it malfunction and fail to start, for reasons unrelated to the

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 4 000500 fire. The truck was subsequently engulfed in flames and destroyed. The City sued the electric company for property damages to the fire truck.

In contrast to the present case, the Court held that it would have taken a "prophetic ken" for the electric company defendant to anticipate the combination of events that led to the fire truck's destruction. Id at 335. The equipment malfunction on the fire truck was so "improbable" that it could not have been foreseen. Id at 336.

On the other hand, the City of Bishop opinion recognized that certain dangers could have been reasonably anticipated, like the fact that firefighters would respond to the fire and that a fire truck could be immobilized by "hidden tree stumps, bailing wire, or ground ruts," and so forth. Id at 335. So too here, certain dangers could have been reasonably anticipated by an ordinary person setting a fire in a residential group home-such as that people would panic and that not all residents would be safely evacuated. The very injuries anticipated by setting a fire in a residential group home-that is, injuries caused by fire-are the very injuries suffered by Ms. Wagner.

3. Ms. Udemezue's "panic" was not a "superseding" cause In conjunction with her foreseeability argument, Plaintiff argues that the unforeseeable "panic" of Ms. Udemezue superseded the negligence of Esperanza Arzola.

That is also incorrect under Texas law.

A "new and independent cause" which is sufficient to supersede the original wrongdoer's negligence is "the act or omission of a separate and independent agent, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question." Columbia Rio Grande Healthcare, Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 5 000501 L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009) (emphasis added). 2 If the act or omission is caused by the act of the original wrongdoer, like the panic in Ms. U demezue caused by the fire, the subsequent act or omission cannot be a superseding, new and independent cause. Id. If, as here, it is reasonably foreseeable that the fire could cause a rescuer to panic, then the negligence of the rescuer is a concurring cause, not a superseding cause. The Texas Supreme Court has held: If the act or omission alleged to have been a new and independent cause is reasonably foreseeable at the time of the defendant's alleged negligence, the new act or omission is a concurring cause as opposed to a superseding or new and independent cause.

Id at 857.

Moreover, in looking at whether the second defendant's negligence superseded the first defendant's negligence, the Court looks at a number of factors, taken from the Restatement: (a) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;

Plaintiff also argues that because a new and independent charge instruction was submitted, the jury was entitled to follow that instruction. However, that instruction does not change the evidence or transform Defendants' acts into new and independent causes when the evidence is to the contrary.

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 6 000502 (d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; ( e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Id. at 857-58 (citing RESTATEMENT (SECOND) OF TORTS§ 442 (1965)).

Applying those factors, Ms. Udemezue's panic could not be a superseding cause, as a matter of law. First, a superseding cause must not only be "unforeseeable, but its consequences unexpected." Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451 (Tex. 2006). Here, all of the alleged acts of negligence by the Defendants were part of the foreseeable chain of causation begun when Esperanza Arzola started the fire.

Second, a superseding cause "is one that alters the natural sequence of events and produces results that would not otherwise have occurred." Id. Here, the same results occurred from the concurring negligence of Arzola and Defendants, as alleged.

Third, "[a]n intervening force will not break a causal connection if that force was itself probable or foreseeable by the original wrongdoer." Id. Certainly, an ordinary person setting a fire could foresee that people could be injured or killed if they could not exit the residential group home in time.

Finally, a superseding cause must cause "injury different from that which might have been expected at the time of the original negligent act." Id. at 451-52. Or, as the Supreme Court held in Hawley, "where the risk resulting from the intervening act is the same risk

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 7 000503 resulting from the original actor's negligence, the intervening act cannot be classified as a superseding cause." Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W .3d at 859 (Tex. 2009). Here, the same injuries and risks resulted from both Arzola's act and Defendants' alleged acts or omissions.

Thus, Defendants' acts or omissions were not new and independent causes that superseded Esperanza Arzola's negligence. The harm created by her negligence was exactly the same harm that resulted from Esperanza Arzola's negligence, which is injuries due to fire.

4. The order is proper Finally, the Plaintiff argues that the Court's order granting new trial is improper. In Columbia Medical Center ofLas Colinas, the Texas Supreme Court stated for the first time that a court must give its reason for granting a new trial. In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W .3d 204 (Tex. 2009). The Court did not provide much guidance in this regard, but stated that broad statements, such as "in the interest of justice" are not sufficiently specific and that the reason should be "clearly identified and reasonably specific." Id. at 215.

Here, in its Order Granting New Trial, the Court provides the precise reason for the grant of the new trial, and includes the primary case authority relied upon: The reason for the Court's grant of new trial is that the jury's failure to find negligence on Esperanza Arzola, who started the fire that was the cause-in-fact of the injuries to Jenny Wagner and the death of Tanya James, is so against the great weight of the evidence as to be clearly wrong and manifestly unjust. See Cropper v. Caterpillar Tractor Co., 754 S.W .2d 646, 651 (Tex. 1988).

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 8 000504 That Order identifies for the Plaintiff and any reviewing court exactly why the Court granted new trial.

Plaintiff suggests that this language is insufficient because it is like the order in In re United Scaffolding, which is now under review by the Texas Supreme Court. See In re United Scaffolding, Inc., 315 S.W.3d 246 (Tex. App.-Beaumont2010,pet. granted). In that cited case, the majority of the Beaumont court of appeals held that the order granting new trial was sufficiently specific, but the dissent disagreed. However, whatever the Supreme Court may hold about that order, that holding would not apply here. There, the order stated only that the jury's finding was against the great weight of the evidence, but it did not say why. Here, the Court's order provides the specific reason for granting the new trial, which is all the Supreme Court requires.

CONCLUSION This Court correctly granted new trial. Plaintiff has failed to present sound reasons for reconsideration of that order. For that reason, the Defendants request that Plaintiff's Motion for Reconsideration be, in all things, denied.

Respectfully submitted, PLUMMER & KUYKENDALL

James C. Plummer Texas Bar No. 16075700 4203 Montrose Boulevard, Suite 270 Houston, Texas 77006 Telephone 713.522.2887 Facsimile 713.522.3605

Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 9 000505 THE HOLMAN LAW FIRM, P .C.

s/David W. Holman David W. Holman Texas Bar No. 09902500 Greenway Plaza, Suite 2000 Houston, Texas 77046 Telephone 713.400.4840 Facsimile 713.400.4841 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on May 1, 2012: This document was filed via Texas.gov electronic filing system, and the required number of copies was forwarded to the Court by regular mail or express mail.

This document was forwarded to the following via Texas.gov electronic filing system and/or electronic mail: Attorneys for Plaintiff Mr. L. Lee Thweatt Mr. Russell S. Post Mr. Joseph D. Terry Ms. Constance H. Pfeiffer TERRY & THWEATT, P .C. BECK, REDDEN & SECREST, LLP One Greenway Plaza, Suite 100 1221 McKinney, Suite 4500 Houston,Texas77046 Houston, Texas 77010-2010 Telephone 713.600.4710 Telephone 713.951.3700 Facsimile 713.600.4706 Facsimile 713.951.3720 Attorneys for Intervenor Mr. Shelton Sparks Ms. Tiffany Harvey SHELTON SPARKS & ASSOCIATES Cordell Street Houston, Texas 77009 Telephone 713.862.5533 Facsimile 713.862.4913

s/David W. Holman David W. Holman Defendants' Response to Plaintiff's Motion for Reconsideration of Order Granting New Trial 10 000506 Filed 12 May3 P4:10 Chris Daniel - District Clerk Harris County ED101J016861789 CAUSE NO. 2009-40925 By: Charlie R. Tezeno PATTI J. WAGNER, AS GUARDIAN OF JENNY § IN THE DISTRICT COURT OF WAGNER, AN INCAPACITATED ADULT, § § Plaintiff, § § § HARRIS COUNTY, TEXAS v. § § FOUR J's COMMUNITY LIVING CENTER, INC.; § ANTHONIA UDUMA; and GODFREY UDUMA, § § Defendants. § 269TH JUDICIAL DISTRICT

REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OF ORDER GRANTING NEW TRIAL

Plaintiff Patti J. Wagner ("Ms. Wagner"), appearing as guardian of Jenny Ann Wagner, files this reply in support of her motion for reconsideration of the order granting a new trial.

Possibly the most difficult thing a judge is asked to do is to reconsider a hard decision.

We recognize that reality, and we did not make the request lightly. But the Defendants' response has confirmed that they were not entitled to relief on their factual sufficiency challenge to the jury's verdict, they cannot defend it with reference to the evidence and jury charge at this trial, and they are unwilling to provide a detailed order explaining it because they realize such an order would expose the fallacy of their position. The Court should set aside its new trial order and reinstate its judgment, giving effect to the conscientious work of this jury.

No litigant should ask a court to set aside a jury verdict on the theory that it is contrary to the great weight of the evidence unless that litigant can "detail the evidence" and "clearly state" why the verdict is "so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias." Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Plaintiffs' motion challenged Defendants to identify the evidence that supports their great weight argument. Mot. at 6. But in a telling confession of weakness, their response does not cite one scintilla of evidence. The "response" is non-responsive.

000507 There is a reason the Defendants hide from the evidence. Based on the evidence at trial, this jury reasonably found that any negligence of Ms. Arzola in starting the fire did not "cause" the "injuries in question," because the Defendants negligently failed to prevent those injuries after the fire started. Evidence at trial proved overwhelmingly that the Defendants' caregiver panicked and failed to remove the plaintiffs from the burning house and that Defendants failed to provide a safe means of egress from the house. But for that negligence, the "injuries in question" never would have occurred. That evidence is a perfectly rational basis for the jury's verdict.

Defendants ignore it-as well as the jury instructions that entitled the jury to reach this verdict.

As the motion for reconsideration pointed out, when there is no objection to the jury instructions the factual sufficiency of the evidence must be evaluated under the charge as given.

That is a bedrock principle of Texas law, which Defendants do not contest. Yet their response is devoted entirely to abstract legal rules that were not in the charge, ignoring the jury instructions in direct violation of the rule that "it is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); see also 4 RR 215 (no charge objections).

First, in Question 1(3), this jury was asked whether the negligence, if any, of Ms. Arzola proximately caused the "injuries in question." By focusing on the injuries, not the occurrence, Question 1 shifted the jury's attention from the fire as a general event to causation of the injuries actually suffered by the plaintiffs. This is a long-recognized distinction in Texas charge practice because some acts of negligence may be found to cause occurrences, but not the ultimate injuries (and by contrast, some acts of negligence may be found to cause the injuries even if they did not cause the underlying occurrence). Defendants ignore this settled distinction because it is fatal to their argument: Even if Ms. Arzola's conduct caused the original "occurrence" (i.e., the fire), the jury could rationally conclude that it did not cause the ultimate "injuries."

000508 Second, as the motion for reconsideration pointed out, this jury was instructed that when multiple causes are involved, one cause may "destroy the causal connection" of another and "become the immediate cause." Question 1. Defendants invited this jury instruction themselves, so they certainly cannot complain about it now. See General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (party cannot complain when it "requested the very issues that it now seeks to avoid"). That instruction went beyond basic legal principles on causation and affirmatively instructed the jury that one cause could "destroy the causal connection" of another, which is perfectly consistent with the jury's evaluation of the evidence regarding Defendants' negligence after the fire had started. This is a highly rational basis for the jury's verdict.

As the motion for reconsideration pointed out, it is no answer to suggest, after the fact, that this instruction (the PJC instruction on "new and independent cause") can be given a limited, technical interpretation. The Supreme Court has specifically rejected that approach to verdicts, holding that instructions like this one are given their plain and ordinary meaning and juries are entitled to view them as a layman would, using common sense. Dillard v. Texas Elec. Coop., 157 S.W.3d 429, 432-33 (Tex. 2005). This is precisely the sort of case Dillard had in mind when it held that such an inferential rebuttal instruction advises jurors "that they do not have to place blame" on a particular actor if the ultimate cause of the injury lies elsewhere. Id. at 432.

This jury did exactly what the Supreme Court has held it was entitled to do, given the evidence and the unobjected-to jury instructions. Little wonder that Defendants ignore both the instruction and the Dillard rule. Their response, pp. 5-8, simply defies Osterberg and Dillard.

What, then, is Defendants' argument that the evidence proving Ms. Arzola caused the "injuries in question" is so overwhelming that any other verdict would be "manifestly unjust"?

In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 664-65 (Tex. 1951). It has nothing to do with the actual evidence or jury instructions, but with abstract legal principles. It is wrong.

000509 Defendants have devoted their response entirely to abstract legal principles as if the question before the Court were a summary judgment motion or a request for jury instructions.

But that is not the issue. The question is whether this jury, acting under these jury instructions, had a reasonable basis to render its verdict. Nothing in the abstract legal principles cited by the Defendants' response is even remotely relevant to that question. It is all well and good to discuss the abstract concepts of "foreseeability," "superseding cause," and "new and independent cause," but none of that discussion assists the Court in determining whether this jury was entitled to weigh the evidence in this case and conclude that Ms. Arzola's conduct did not cause the injuries (especially to the extent that Defendants rely on rules that were not set forth in the jury charge).

Their response flies in the face of the Osterberg rule, which has been Texas law for generations.

Equally important, their response assumes that these abstract legal principles dictated a verdict as a matter of law, leaving no room for the jury to weigh these causation concepts and determine that Ms. Arzola' s conduct was not a cause of the "injuries in question." This fallacy is especially evident when the one focuses on the precise acts of negligence that support the jury verdict. First, with respect to Ms. Udemezue's panic after the fire started, Defendants simply rely on general propositions of foreseeability and cite a Restatement section for the principle that subsequent panic in reaction to negligent conduct is not a superseding cause as a matter of law. Resp. at 3-4. This approach is misguided because these precise concepts were not set forth in the jury instructions, so Defendants' argument violates the Osterberg rule.

But equally important, Defendants' argument confuses the difference between general legal rules and a jury's right to reach conclusions based on the evidence. Plaintiffs do not disagree with the abstract legal propositions about foreseeability cited by Defendants, but none of them dictates the conclusion that this jury was required to find Ms. Arzola's conduct a proximate cause of the "injuries in question." They simply represent the legal rules that guide that determination.

000510 Likewise, the Restatement provision simply stands for the proposition that panic is not a superseding cause defense as a matter of law. But Plaintiffs are not arguing it as a matter of law; we are arguing that the jury was entitled to weigh Ms. Udemezue's panic after the fire started in its fact-bound determinations about causation. If the jury had found Ms. Arzola responsible and she wished to set aside that verdict on the basis that Ms. Udemezue's subsequent panic was a superseding cause as a matter of law, Defendants would be correct. But that is not the issue.

The jury weighed all this evidence and was rationally entitled to find that Ms. Arzo la's conduct in starting the fire did not cause the injuries, but that Ms. Udemezeu's panic caused them.

The Restatement supports that conclusion, as it recognizes that a panic-stricken response to the prior negligence of one party, "if done by a third person, may subject him to liability to the person harmed." RESTATEMENT (SECOND) OF TORTS§ 443 cmt. c. Weighing concurring causes and determining whether the subsequent acts of negligence "destroyed the causal connection" from Ms. Arzola' s conduct in starting the fire is a classic jury function. The Restatement itself makes clear that in this situation "the question should be left to the jury": If ... the negligent character of the third person's intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.

RESTATEMENT (SECOND) OF TORTS§ 453 cmt. b (citations omitted) (emphasis added).

Defendants' response to the other act of negligence highlighted in Plaintiffs' motion- their failure to provide a safe means of egress-is even worse. They dismiss it in a footnote because it is "an allegation of conduct that occurred prior to, rather than subsequent, to the fire." Resp. at 1 n. l. But obviously, for causation purposes, it is irrelevant that Defendants' "conduct" occurred "prior to" the fire. Its causal effect on the "injuries in question" occurred after the fire, cutting off any safe means of escape-a perfectly rational basis for the jury's verdict.

000511 In simplest terms, Defendants are unwilling to face the evidence and jury instructions, despite the fact they they secured a new trial on a factual sufficiency ground that requires courts to find the jury's verdict was "manifestly unjust," In re King's Estate, 244 S.W.2d at 664-65, based on "the court's charge, not some other unidentified law." Osterberg, 12 S.W.3d at 55.

Plaintiffs are not aware of a single case in which a similar ruling has been made in a situation involving concurring causes, and Defendants have not cited any. As we have pointed out, Defendants' motion for new trial cited only cases in which a failure to find negligence was contrary to the great weight and preponderance of the evidence-they did not involve situations in which a court held that a jury was obligated to find causation among concurring causes.

Defendants' response does not deny the point, and does not attempt to rehabilitate their cases.

Thus, while Defendants try to distinguish the City of Bishop case (in which a similar verdict was upheld because the jury was free to find that a party that set a fire was not the proximate cause of the injuries but that the subsequent negligence of other parties constituted the ultimate cause), they cannot cite any cases of their own on similar facts. They are adrift on a sea of abstract rules.

Defendants' reliance on abstract legal propositions, divorced from the evidence and the jury instructions, reveals that their argument is simply a request for the Court to play fact-finder.

That is why they are unwilling to tender an order that attempts to "detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias.' Pool, 715 S.W.2d at 635. They cannot do so. Plaintiffs respectfully urge the Court to reconsider its order granting a new trial.

CONCLUSION & PRAYER The Court should grant the motion for reconsideration and reinstate its Final Judgment.

Plaintiff respectfully requests any and all additional relief to which she may be entitled.

000512 Respectfully submitted, BECK, REDDEN & SECREST, L.L.P. By: Isl Russell S. Post Russell Post State Bar. No. 00797258 Constance H. Pfeiffer State Bar No. 24046627 1221 McKinney, Suite 4500 Houston, TX 77010-2010 (713) 951-3700 (713) 951-3720 (Fax) L. Lee Thweatt State Bar No. 24008160 Joseph D. Terry State Bar No. 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, TX 77046-0102 (713) 600-4710 (713) 600-4706 (Fax) ATTORNEYS FOR PLAINTIFF PATTI J. WAGNER, AS GUARDIAN OF JENNY ANN WAGNER, AN INCAPACITATED ADULT

000513 CERTIFICATE OF SERVICE I hereby certify that on May 3, 2012, a true and correct copy of the foregoing Plaintiffs Reply in Support of Motion for Reconsideration was properly forwarded to the following counsel of record in accordance with the Texas Rules of Civil Procedure through the Texas.gov electronic filing system or bye-file or fax addressed as follows: James C. Plummer PLUMMER & KUYKENDALL 4203 Montrose Blvd., Ste. 270 Houston, TX 77006 (713) 522-3605 - Fax David W. Holman THE HOLMAN LAW FIRM, P.C.

24 Greenway Plaza, Ste. 2000 Houston, TX 77046 (713) 400-4841 - Fax Attorneys for Defendants, Four J's Community Living Center, Inc. and Anthonia Uduma Shelton Sparks Tiffany Harvey SHELTON SPARKS & AS SOCIATES Cordell St. Houston, TX 77009 (713) 862-4913 - Fax Attorneys for Intervenor

Isl Russell S. Post Russell S. Post

000514 fol ....:--- NO. 2009-40925 R£ H~Y PATTIJ. WAGNER et al., § IN THE DISTRICT COURT OF § Plaintiffs, § § VS. § HARRIS COUNTY, TEXAS § FOUR J'S COMMUNITY LIVING § CENTER, INC. et al., § § Defendants. § 269TH JUDICIAL DISTRICT ORDER Pending before the Court is Plaintiffs' Motion for Reconsideration of Order Granting New Trial. The Court heard argument on this Motion at an oral hearing on May 4, 2012. After considering the motion, Defendants' response, Plaintiffs reply, the arguments of counsel, and the applicable law, the Court concludes that the motion should be denied.

Therefore, Plaintiffs' Motion for Reconsideration of Order Granting New Trial is DENIED.

This case is ASSIGNED to trial to begin at 8:30 a.m. on Monday, June 4, 2012.

SIGNED at Houston, Texas this 4th day of May, 2012.

~~ Hon. Dan Hinde Judge, 269th Judicial District Court

000515 co CAUSE NO. 2009-40925 d,1swi0 PATTI J. WAGNER, AS GUARDIAN § IN THE DISTRICT COURT OF JENNI WAGNER, AN § INCAPACITATED ADULT § Plaintiff, § § V. § 26911' JUDICIAL DISTRICT § FOUR ,J'S COMMUNITY LIVJNG § CENTER, INC., ANTI-IONIA UDUMA § Defendants § HARRIS COUNTY, TEXAS

OR ERONMOTIONTODISMISS

Pending before the Court is Defendants' Motion to Dismiss Defendant Anthonia Uduma pursuant to Tex. Civ. Prac. & Rem. Code §?4.001, et seq. and the failure to comply ''ith the requirements of Tex. Civ. Prac. & Rem. Code §?4.351, et. seq.

The court, having re\iewed the motion and any response, and upon arguments of counsel, finds that the motion should be DENIED.

Signed-this this ;(3~,y of August, 2012.

~ Fl LED Chris Daniel o istrict Clerk ~UG 2 3 2012 11rr.e -~,;·(;-;;~.;·-;:;7;;-· ------ 000516 ~ ; . 52j 3 p. ~ /5

CAUSE NO. 2009-40925 PA'ITI J. WAGNE~ AS GUARDIAN § IN THE nrsnuar COURT OF JEJ:\1NI WAGNER, AN § INCAPACITATED ADULT § Plaintiff, § § v. § 269i1' JUDICIAL DISTRICT § FOCR J'S COMMU.NrJY LlVlNG § CE.NTER, INC., ANTHONIA UDUMA § Defendants § HARRIS COUNTY, TEXAS NOTICE OF APPEAL OF ANTHONIA. UDUMA Defendaut Anthonia Uduma hereby gives notice of her appeal, pursuant to Tex. Civ. P. Rem. Code §74.ooa, et seq., from the trial court's interlocutory ordel' as follo\vs: 1. Order on Motion to Dismiss, dated August 23, 2012, denying Defendant .Anthonia Uduma's motion to dismiss pursunnt to Tex. Civ. P, Rem. Code §14.351, et seq.

Ms. Uduma appeals to the Fourteenth Court of Appeals.

Respectfully submitted, James C. ..,_.. . -··'"'"•-<-·~· . -!, By; Plummer rJ l(~ /\~~ ..--- i;.~.- ........ ·~"'™''"•...... w _..

James C. Plummer, TBA #16075700 Amar Raval, TUA #240466B:z PLUMMER & KUYKENDALL 4203 Montrose Blvd., Suite 270 Houston, Te.us 77ootJ (713) 522-2887 (713) 52~-3605 (Fax) ATIORNEYS FOR DEFENDANTS

000517 Aug. 24. 2012 '1:37AV ~J, ~273

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Notice of Appeal was served by hand delivery, certified rna.ilJ return receipt requested, or by fax trnnsmission on August 24 1 2012, to:

L. Lee Thwe~tt, &q.

Joseph D. Terry, Esq.

Terry & Thweatt, PC One Greenway Plaza> Suite 100 Houston, TX 77046 Russell Post, Esq.

Connie Pfeiffer, Esq.

Beck, Redden & Secrest, 11..P 1221 McKinney St., Suite 4500 Houston, TX 77010

James C. Plummer

-2-

000518 'b. 5213

Local Rule Notice of and Assignment of Related Case In Original Proceedings

As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the following related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals: X None D Caption: Trial court case number: Appellate court case number:

[Signature of certifying attorney or prose party]

[Date]

Note: See Local Rules for the definitions of "underlying case,') "related," and "previously filed."

000519 y

MANDATE Court of Appeals First District of Texas NO. 01-12-00796-CV ANTHONIA UDUMA, Appellant V. PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN INCAPACITATED ADULT, Appellee Appeal from the 269th District Court of Harris County. (Tr. Ct. No. 2009-40925).

TO THE 269TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS: Before this Court, on the 27th day of August 2014, the case upon appeal to revise or to reverse your judgment was determined. This Court made its order in these words: This case is an appeal from the interlocutory order signed by the trial court on August 23, 2012. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that there was no reversible error in the trial court’s order. Accordingly, the Court affirms the trial court’s order.

The Court orders that the appellant, Anthonia Uduma, pay all appellate costs.

000520 The Court orders that this decision be certified below for observance.

Judgment rendered August 27, 2014.

Panel consists of Justices Jennings, Sharp, and Brown.

Opinion delivered by Justice Sharp.

WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this behalf and in all things to have it duly recognized, obeyed, and executed.

September 4, 2015 Date CHRISTOPHER A. PRINE CLERK OF THE COURT

000521

1 REPORTER'S RECORD VOLUME I TRIAL COURT CAUSE NO. 2009-40925 4 ) PATTI J. WAGNER, as ) IN THE DISTRICT COURT Guardian of JENNY ANN ) WAGNER, an Incapacitated ) Adult ) ) OF HARRIS COUNTY, TEXAS V. ) ) FOUR J'S COMMUNITY LIVING ) CENTER, INC., ANTHONIA ) UDUMA and GODFREY UDUMA ) 269TH JUDICIAL DISTRICT

12 ------------------------------ 13 PRETRIAL MOTIONS, VOIR DIRE, 14 STATEMENT OF FACTS 15 ------------------------------

19 On the 17th day of October, 2011, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Dan Hinde, Judge presiding, held in Houston, Harris County, Texas; 23 Proceedings reported by machine shorthand.

24 Annette Peltier, CSR, RPR, CLR Deputy Official Court Reporter 25 Harris County, Texas

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000522 Volume 1

1 A P P E A R A N C E S FOR THE PLAINTIFF, PATTI J. WAGNER, as Guardian of JENNY ANN WAGNER, an Incapacitated Adult: MR. L. LEE THWEATT 4 TBA NO. 24008160 MR. JOSEPH TERRY 5 TBA NO. 24013618 Terry & Thweatt, P.C.

6 One Greenway Plaza, Suite 100 Houston, Texas 77046 7 Phone: 713.600.4710 FOR THE INTERVENOR: MR. SHELTON SPARKS 10 TBA NO. 06507160 Shelton Sparks & Associates 11 706 Cordell Street Houston, Texas 77009 12 Phone: 713.862.4913 FOR THE DEFENDANTS: MR. JAMES C. PLUMMER 15 TBA NO. 16075700 Plummer & Kuykendahl 16 4203 Montrose, Suite 270 Houston, Texas 77006 17 Phone: 713.522.3605

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000523 Volume 1

1 I N D E X 2 VOLUME I 3 Page Vol.

4 Announcements......................... 4 1 Pretrial Motions...................... 12 1 Voir Dire by the Court................ 54 1 Juror Instructions to the Panel....... 60 1 Voir Dire by the Plaintiff............ 67 1 Voir Dire by the Intervenor........... 88 1 Voir Dire by the Defendant............ 115 1 Jury Seated........................... 227 1 Jury Instructions..................... 231 1 Plaintiff's Opening Statement......... 242 1 Intervenor's Opening Statement........ 254 1 Defendant's Opening Statement......... 265 1 Plaintiff's Witnesses PATTI WAGNER Direct Examination by Plaintiff... 275 1 12 Direct Examination by Intervenor.. 304 1 Cross-Examination by Defendant.... 312 1 13 Redirect Examination by Plaintiff. 325 1 Adjournment........................... 352 1 Court Reporter's Certification........ 353 1 EXHIBITS PREADMITTED Plaintiff's 1-33, 35-37, 39-40, 43-37, 50-53...... 48 1 Intervenor's 1, 2, 4-8, 10, 11, 15-24.............. 49 1 Defendant's 2-4, 7, 10-12, 15, 16, 18-25, 36, 37, 59, 64, 66-68, 70..................... 50 1

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000524 Volume 1

1 THE COURT: All right. This is Cause Number 2009-40925, Patti J. Wagner, as Guardian of Jenny Wagner, an Incapacitated Adult, et al, versus Four J's Community Living Center, Inc., et al.

5 Can I have appearances, please, for the record?

7 MR. THWEATT: Good morning, Your Honor.

8 Lee Thweatt and Joe Terry for the plaintiff, Patti Wagner, and on behalf of her daughter, Jenny Wagner.

11 THE COURT: All right.

12 MR. SPARKS: Shelton Sparks and Tiffany Harvey for the Intervenor.

14 THE COURT: All right.

15 MR. PLUMMER: Jim Plummer and Amar Raval for the defendants, Four J's Community -- Community Centers, and Anthonia Uduma.

18 THE COURT: All right. Thank you.

19 MR. PLUMMER: And our legal assistant, Ms. Trevino.

21 THE COURT: Thank you.

22 All right. Plaintiffs ready for trial?

23 MR. THWEATT: Yes, Your Honor.

24 THE COURT: Intervenors ready for trial?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000525 Volume 1

1 MR. PLUMMER: Yes, Your -- 2 THE COURT: Excuse me. Intervenors ready for trial?

4 MR. SPARKS: Yes, Your Honor.

5 THE COURT: Defense ready for trial?

6 MR. PLUMMER: Yes, Your Honor.

7 We do have a motion that -- 8 THE COURT: We're going to take that up in a moment. All right?

10 All right. First things first. I think we've already talked about this, the time limits.

12 I've set this for four days. So each side will get seven hours to present their own witnesses and cross-examine the opposing side's witnesses.

15 Let's talk here briefly: Mr. Thweatt, Mr. Sparks, how much time do you need for voir dire?

17 MR. THWEATT: Your Honor, my partner, Joe Terry's going to be handling voir dire.

19 MR. TERRY: 35, 40 minutes, Your Honor, will be fine.

21 THE COURT: And is that just for yourself or to be split with Mr. Sparks?

23 MR. TERRY: Just for myself, Your Honor.

25 MR. SPARKS: Judge, I think no more

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1 than 20 minutes.

2 THE COURT: How much time do you need, Mr. Plummer?

4 MR. PLUMMER: Judge, I believe 35, 40 minutes will be fine.

6 THE COURT: All right. What I'll give is 50 minutes for plaintiffs and intervenors to split and 50 minutes, equal time, for you.

9 Do y'all want any warnings, a five-minute warning or anything like that?

11 MR. TERRY: Sure, Your Honor. That would be fine.

13 THE COURT: Well, do you want a five-minute warning?

15 MR. TERRY: Yes, sir.

16 MR. SPARKS: Yes, sir.

17 THE COURT: Do you want a warning, Mr. Plummer?

19 MR. PLUMMER: Yes, Your Honor. Five minutes will be fine for me. 21 THE COURT: Mr. Thweatt, how much time do you need for opening statement?

23 MR. THWEATT: I think about 40 minutes would be -- 25 THE COURT: You need 40 minutes on this

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1 one?

2 MR. THWEATT: I'll cut it down to 30, Judge.

4 THE COURT: Mr. Sparks?

5 MR. SPARKS: 20 minutes.

6 THE COURT: All right. I'll give plaintiffs and intervenors 45 minutes total.

8 Do y'all, again, want a warning of any kind?

10 MR. SPARKS: Yes.

11 MR. THWEATT: Yes.

12 THE COURT: 45 minutes sufficient, Mr. Plummer?

14 MR. PLUMMER: More than sufficient, Your Honor.

16 THE COURT: Do you want a warning?

17 MR. PLUMMER: Yes, Your Honor.

18 THE COURT: Five minutes.

19 MR. PLUMMER: Five minutes is plenty.

20 THE COURT: And we'll worry about the time limits for closing argument when we get there.

22 Just to let y'all know what to expect: With our new jury facility right next door, we expect -- I expect to get the jury here by about 9:30, maybe, at the latest, 9:45. So we've got a lot of work to do in

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000528 Volume 1

1 the next 40 minutes because I don't make them wait.

2 As soon as we get the jury cards, they will be distributed to you. If we're still in the middle of arguing motions in limine and whatnot, they'll be handed to you. If we're done, obviously, you'll have more time to do that. But we'll get those cards to you as soon as we get them.

8 Once they arrive in the hall, they need some time to use the restroom and whatnot. We'll break what we're doing here, and I will go out and greet them in the hallway informally to welcome them to the court, thank them for their service, and encourage them to speak up during voir dire. That will give y'all a few extra minutes to go over their cards.

15 Then we'll bring them in. Counsel will conduct their voir dire examination from that podium that's standing right there. The court reporter will be over kind of behind where Mr. Plummer is, along the rail to the gallery. So I can't have y'all walking back and forth back there, especially since my court reporter, unfortunately, is injured. I don't want anyone tripping over her injured foot.

23 So you'll conduct your voir dire from that podium. We'll do the entire panel examination.

25 Don't worry about motions to strike for cause during the

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1 panel examinations. Just do your panel examination and then we'll take a break for the panel while we'll call back any jurors who you need to bring back for an individual interview.

5 What will happen is when Mr. Plummer's done with his panel examination, I'll call the lawyers up here, then I'll ask you to give me just the numbers of any jurors that you need to call back for an individual interview. So be thinking about that. Don't wait until I call you up to start thinking about who y'all need to talk to again.

12 Unless I ask for an explanation, you don't need to give me an explanation. Just give me the numbers. Then we'll do the break while we're bringing them back in one by one.

16 Again, don't worry about motions to strike for cause during the individual interviews.

18 Let's just get all those individual interviews taken care of. Then after that, we'll worry about motions to strike for cause.

21 I'll ask you again, each -- each party, give me the numbers of any jurors that you're moving to strike for cause. Again, unless I ask you for an explanation, don't start giving me your argument because, basically, I want to see if there are any

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000530 Volume 1

1 double or triple strikes of people who, you know, looks like everybody agrees on.

3 Then I'll ask you, okay, do you agree on any of plaintiff's, do you agree on any defendants', and then we'll argue the ones that are in dispute.

6 After that, you'll get about 10 to 15 minutes to do your peremptories, and I will bring the jury back in and impanel the jury.

9 I've brought -- I've ordered a panel of 48 jurors; so it will start from Juror Number 1 to my extreme right on the front row of the gallery, all the way to Juror Number 16 on the front row to my extreme left. We start with Juror Number 17 on the second row and go all the way to Juror Number 32, and then Juror Number 33 on the far right, all the way to Juror Number 48. So that's how we'll handle that.

17 One thing we do here, you're going to find out, if you haven't already figured out, I value the jury's time very highly and I try to make sure that we use their time as efficiently as possible. So we're going to be working very hard to make sure that as much of the time during the day is spent with them in the box, presenting witnesses, evidence, and argument to them, as possible.

25 Sometimes, obviously, we have to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000531 Volume 1

1 have -- we have to have conferences outside the presence of the jury. We have some unique technology here that allows us to do that without having to shuffle the jury back and forth to the jury room or without requiring us to whisper up here under our breaths and it also allows us to have the conferences on the record. It's a white noise system.

8 What will happen is I will turn on the white noise system, y'all will come up here, you'll speak directly and in a regular voice towards this microphone here. I'll speak towards my microphone. The court reporter will be able to record it.

13 Meanwhile, the speakers over the jury box will be broadcasting white noise; so all the jurors can hear is white noise. I've interviewed every jury after every trial I've had in this court to make sure it works; and every time they told me they could not understand what was being said between the lawyers and the judge during these conferences. It's an amazing timesaver, and it allows us to get through that stuff pretty quickly. This is what it sounds like, incidentally.

23 All right. I didn't look too closely at your charges. If y'all are all in agreement on the charge, that's one thing; it will be easy. If y'all

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000532 Volume 1

1 haven't agreed on the charge, I'll need you to each e-mail your latest version of the charge to Mr. Garibay in Word format so that I can put the charge together as quickly as possible. His e-mail is on the website, the Justex website; so it should be pretty easy. Make sure you cc the opposing counsel and whatnot.

7 I know we've got some motions to take care of. Before we do that, have y'all discussed your motions in limine, your exhibits, your deposition objections to winnow down what's truly in dispute and what y'all can agree on?

12 MR. THWEATT: Yes.

13 PRETRIAL MOTIONS 14 THE COURT: All right. The first one we're going to take up is Plaintiff and Intervenor's Joint Motion to Strike Defendant's Combined Third Amended Answer and Defendant's First Amended Answer, Plea in Intervention.

19 And I gather that what I was handed just before we started, entitled Defendant's Motion for Leave to File Third Amended Answer and First Amended Answer to Plea in Intervention, is also on the table.

23 Do I understand that correctly?

24 MR. PLUMMER: Correct, Judge.

25 THE COURT: All right. Let's start

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000533 Volume 1

1 with the Motion to Strike.

2 Mr. Thweatt, do you want to present this or, Mr. Sparks, are you going to present this?

4 MR. THWEATT: I'll be happy to present it, Your Honor.

6 As the Court has seen from our motion submitted, we object to the untimely filing of the defendant's amended answers submitted on October the 5th, 2011. The Court's pleadings deadline in this case expired on December the 3rd, 2010; and the discovery cutoff expired back in February of 2011.

12 Under Rule 63, there has to be -- well, Rule 63 very plainly permits late amendments, provided leave is sought. I would note that there was no leave sought until this morning, I believe.

16 And I believe in our motion we've stated the surprise that these late amendments present to us.

19 Essentially, Judge, we're having a dispute about whether this is a Chapter 74 medical malpractice case or not. We don't believe that the facts of this case to this point in any of the pleadings or the depositions that have been exchanged indicate that it is a medical malpractice case.

25 It's a case about fire. It does not

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000534 Volume 1

1 involve the delivery of medicine. There's no doctor or nurse or the administration of any kind of healthcare at issue in this case.

4 We were surprised to see that Chapter 74 was being invoked. Mr. Plummer has noted in his response that I did file on behalf of plaintiff expert reports that were submitted, basically to guard against the possibility that this Court might consider it as a Chapter 74 claim.

10 Just the fact that this case involves a Chapter 74 healthcare provider does not, by necessity, mean that it's a Chapter 74 claim. And the remedy for not filing expert reports in a case that can be considered a healthcare liability claim -- we don't believe that it is; but if the Court later determined that it was, would be dismissal with prejudice.

17 So we have a catch 22 decision to make there. We made it. Nonetheless, just because we have made it -- we certainly did not submit expert reports that were filed by any physician, any nurse, nothing like that. What we submitted were expert reports from a gentleman who works at the Center for Mental Retardation here in Houston and the fire -- the former fire chief here in town.

25 We just don't believe that these

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000535 Volume 1

1 defenses should be applicable. They're way late on this, nobody's conducted discovery on this, and the reason for that is because the discovery deadline and all the deadlines that you enforced in your Motion for Summary Judgment -- or their Motion for Summary Judgment, which you denied, is untimely.

7 I well remember the first time I was before you, Your Honor, in this case. You emphasized to me the importance of deadlines in this case; and we've tried to comply with those since then, especially so. 11 Beyond that, everything is stated in our motion; and we don't think that these answers ought to be -- or these defenses should be before this Court.

14 THE COURT: How does asserting the damage caps in Chapter 74, which is basically, I think -- isn't that the effect that allowing the answers to have -- that it's the only consequence of allowing the answers, is it raises this prospect of the damage caps? Is there anything else that Chapter 74 would do to change this case?

21 MR. THWEATT: That's certainly one of them.

23 I'm not exactly clear from their answer. They say that the plaintiff and intervenor failed to comply with the other provisions of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000536 Volume 1

1 Chapter 74. I'm not exactly sure what they mean by that. They haven't defined exactly what they mean in their answer or -- and, for that reason, I don't know what the other consequences could be.

5 I do know that there is a section -- and we've cited this in our motion -- that a Chapter 74 case requires a physician to testify on causation.

8 There's a section in the code of that.

9 We did not designate a physician because we don't believe that this is a Chapter 74 healthcare liability claim; and the only way we could overcome that prejudice now, Judge, is to ask for more time. We're not going to do that. I don't expect the Court would grant that anyway at this late point.

15 That's certainly one way that we could be prejudiced and they would be prejudiced, potentially, if the Court determines, or a later Court determines on appeal, determines that expert testimony's required to establish causation in this case.

20 Maybe it won't be, and maybe it will be. But that's an open question that could have potential implications after this trial concludes; so it is a big issue for us. It's something that, on the current state of the evidence in the pleadings, could not have been anticipated; and that's certainly one of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000537 Volume 1

1 the reasons why we objected to it.

2 And I think I've highlighted that as a potential reason in the draft order -- 4 THE COURT: Okay. Well, I'm trying to get down to the brass tacks of what the consequences of allowing an amendment to assert Chapter 74 would be since, obviously, they've long since waived any right to move to dismiss for an inadequate expert report.

9 So I mean, you know, you've argued that it reshapes the litigation. You've told me that it may require you to present a -- a specific kind of expert on causation, and there's the damage caps.

13 Is there anything else of consequence to the effect of Chapter 74 on this case if they're allowed to keep this amendment?

16 MR. THWEATT: Yes, there is.

17 We have two defendants in this case.

18 Ms. Anthonia Uduma is being sued in her capacity as a property owner; and she owns -- she was the 100 percent owner of the property that burned and we also have her company that she owns 100 percent, Four J's Community Living Center, Inc. 23 Let's assume for the sake of argument, Your Honor, that the jury comes back and they say it's 50/50 or they say it's more of a liability case against

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000538 Volume 1

1 Four J's than it is against Ms. Uduma.

2 In that case, in addition to the caps, we're going to have to reshape the way we're going to present our evidence to make sure that more liability is placed on Ms. Uduma so that she is jointly and severally liable for any verdict that this jury renders.

7 And that's -- that's a different animal than coming in here and just trying a premises case, just trying a Chapter 74 case against the defendant, Four J's Community Living Center, Incorporated.

11 And we'll do our best to do that, Judge; but, I mean, they submitted this October the 5th.

13 And, you know, 12 days before trial it is not -- we couldn't have conducted any discovery, as it was. But that -- Mr. Sparks and I have discussed it is going to require a reshifting of emphasis during the evidentiary portion of this trial to establish the liability, not just damages, to make sure that most of the liability is established on Ms. Uduma so that she's jointly and severally liable because, if not, it may be a pure victory.

22 We might have -- let's say the jury comes back and says 90 percent on Four J's. Well, then we're left with a damage award that's capped and another defendant who's only ten percent on the hook for -- if

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000539 Volume 1

1 at all because of joint and several liability.

2 So that's a pretty significant strategic shift, in our view. It does have consequences for both the plaintiff and the intervenor. I'm hoping I've made that argument on behalf of both of us.

6 If there's anything else that needs to be added...

8 MR. SPARKS: Yes.

9 THE COURT: Anything to add?

10 MR. SPARKS: No, sir.

11 THE COURT: All right. Mr. Plummer, your response?

13 MR. PLUMMER: Judge, first of all, you know, I don't dispute the late filing. I mean, I -- we acknowledge that.

16 When we took over, we looked at the file. And years ago what we -- they said, I would have agreed with, that this is not a Chapter 74 case. But it is now -- under the current Court's interpretation of Chapter 74, this is clearly a Chapter 74 case.

21 I gave the Court -- and I'll give the Court another copy. I've given counsel a copy of a July, 2011, opinion by the Texas Supreme Court involving a nursing home that was sued because of a spider bite.

25 And the Court determined -- and

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1 particularly the language in defining a health liability claim -- that not just medical negligence applies, but safety issues in the statute apply. Okay? And that included that nursing home that does similar work as us.

5 Now, Mr. Thweatt has also commented -- and I want to direct this quickly -- about the dismissal with prejudice result.

8 The Court's correct that they have timely filed expert reports. There's no requirement, as I understand it, for any doctors' opinions or any healthcare providers' opinions. The special issues that they've crafted are appropriate, as far as I can tell on these facts in this case. Okay? So there would not be that result.

15 There is -- the only result I -- of Chapter 74 would be the damage cap, number one, and number two, there's the -- the -- we've raised limitations against the intervenor and there's a -- there's a portion of the limitations statute in the Medical Liability Act that would apply, but we don't think we need that on the facts of this case. I think we're entitled to limitations -- to assert our limitations to the defense and succeed on that, regardless of which one applies.

25 But it is clearly a Chapter 74 case,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000541 Volume 1

1 Judge.

2 And I want to give the Court two other cases; Marks versus St. Luke's Hospital, which is 2008, and Diversicare, which is 2005. I've highlighted all these; and I think counsel has highlighted copies, also.

6 One's a nursing home; one's a bad bed in a hospital. But they're all premises cases, just like this.

9 THE COURT: And what is your argument that Four J's falls within the statutory definition of a healthcare provider?

12 MR. PLUMMER: Just like -- first of all, they're governed by the Health and Safety Code and the Texas Administrative Code, Section 40 -- I mean, Title 40, Section 9.151. That's number one. And it sets out the criteria for their -- the governance of that operation of a group home. That's number one.

18 Number two, they do the same sort of thing as a nursing home. There are people there who don't necessarily have health problems but are attended to healthwise, we deliver medications, we -- our -- our customers and our clients are daily medicated, when appropriate and as instructed by a physician. They get psychotherapy. They get physical therapy. They get vocational training. They get the same sorts of things

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000542 Volume 1

1 as people in a nursing home would, the difference being that our clientele are mentally retarded and have developmental disabilities, physical disabilities, and in a nursing home folks are -- tend to be older and on the decline. Okay? But other than that, it's the exact same circumstance as a nursing home.

7 And the -- and the Court's opinion in the initial case I've given the Court is directly on point.

10 And then on the surprise issue, I believe the way the expert reports were prepared -- and we've attached the first two pages of those experts' report. Each one says I have been informed by Mr. Thweatt that this is the Chapter 74 claim and, therefore, I'm doing my expert report consistent with the requirements of Chapter 74. So there's no surprise, none whatsoever. The proof is the same, that they have to make in this case, as they would in a Chapter 74 case. And the issues, the jury issues, the issues that go to the jury are exactly the same.

21 So I -- I am not sure -- perhaps had we gone to trial without raising this, I would have waived my entitlement to invoke Chapter 74; but the legislature has been clear and the Supreme Court has been clear that it applies in this context.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000543 Volume 1

1 Some people might call it expansive, but it doesn't matter because that's what the Court says. And we would ask the Court leave to file our amended answers and assert the appropriate Chapter 74 against principally the damage cap.

6 THE COURT: Do you have a license, certification, registration, or charter from the State of Texas?

9 MR. PLUMMER: Yes, Your Honor.

10 THE COURT: Where is that? Is that attached to your Motion for Leave?

12 MR. PLUMMER: It is not attached to my Motion for Leave. What do we have -- in may be one of our exhibits.

15 Our operation is approved by DADS. And what's DADS again? The Department of Aging and Disabilities.

18 We're also governed by -- we're a part of the Home and Community-Based Services Program out of the Department of Health.

21 THE COURT: I asked do you have a license, certification, registration, or charter by the State of Texas.

24 MR. PLUMMER: We have a charter as a corporation, Judge. We have a license to operate our

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000544 Volume 1

1 group home.

2 I did not attach one to the -- to the -- to the response, but I believe we may have something that shares that with the Court.

5 Judge, let me give you what we have as Exhibit 1 and Exhibit 3. These aren't the certifications that license us to operate; but they are certifications that identify our capacity, particularly Exhibit 3 -- excuse me -- I think particularly Exhibit 1. But we can certainly get that for the Court this morning; and we certainly have testimony of that to bring, Your Honor.

13 I also have, Judge, a copy of Chapter 9 of the -- of the Texas Administrative Code that also governs us.

16 THE COURT: Mr. Thweatt, if bites from bugs in one's bed are considered healthcare liability claims, why isn't this -- why doesn't [sic] the facts alleged in this case come under the Supreme Court's understanding of the healthcare liability claim?

21 Mr. Thweatt: Because of this language here, Your Honor, which the Supreme Court has -- has not rejected.

24 I've cited this in our motion, the case of Valley Baptist Medical Center versus Stradley, a case

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000545 Volume 1

1 out of the Corpus Christi Court of Appeals, similar cases also out of the Austin Court of Appeals and the Houston First Court of Appeals.

4 It says as follows: (Reading) We hold that a safety claim can be categorized as a healthcare liability claim only when it is against a healthcare provider or physician or a claimed departure from accepted standards of safety directly related to healthcare. Holding otherwise and finding all safety claims against healthcare providers or physicians to be healthcare liability claims, regardless of whether they directly relate to healthcare, would be an arbitrary and legislatively unauthorized expansion of the healthcare liability statute.

15 I think the other distinguishing factor, Your Honor, in those cases that Mr. Plummer has handed to you, there were not two defendants. There was not a separate premises owner. In this case there is.

19 We have the owner of the company, Ms. Anthonia Uduma, who owned this facility, personally and 100 percent herself, and then we have this company.

22 And that's a very important factor that's different in these cases that Mr. Plummer has cited.

24 THE COURT: Mr. Plummer?

25 MR. PLUMMER: Judge, with regard to

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1 Ms. Uduma, I think he's correct. Chapter 74 wouldn't apply. She's just a premises owner. She owns the building.

4 With regard to the case cited by counsel, the three cases that we've given the Court prevail over that case. That was a court of appeals opinion.

8 The spider bite case was clearly a premises type case.

10 THE COURT: No. The Supreme Court held it's a healthcare liability case.

12 MR. PLUMMER: I understand, but the issue was maintaining the safety of the premises.

14 One of the allegations they said is you didn't keep the premise free from insects, you didn't use pesticides on a regular basis to protect against that. That was the kind of issue that they raised.

18 And the Court said, sorry, safety, that portion of the definition of a health liability claim involving safety, an undefined term in the statute, is broad.

22 And where you have a claim against a facility that provides healthcare, in its context it includes the broader premises issues related to safety.

25 And then the Diversicare case also says

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000547 Volume 1

1 the same thing, and that was decided by the Court in 2005.

3 And then, of course, the other one that I mentioned and cited similarly involved claims that traditionally we would not consider health liability claims but the Court has read the statute broadly to encompass them. It doesn't encompass Ms. Uduma. It does encompass Four J's Community Center.

9 THE COURT: All right. Y'all give me five minutes. I'll be right back.

11 (Break taken from 9:04 a.m. to 9:10 a.m.)

13 THE COURT: Mr. Thweatt, Mr. Sparks, do y'all want a continuance?

15 MR. PLUMMER: No. 16 MR. THWEATT: No, Your Honor.

17 THE COURT: Mr. Sparks?

18 MR. SPARKS: No. 19 THE COURT: Okay. All right. Motion to Strike is denied. The Motion for Leave is granted.

21 I'll ask you again: Do you want a continuance?

22 MR. THWEATT: No, Your Honor.

23 MR. SPARKS: No. 24 THE COURT: And I just wanted to make sure -- I wasn't trying to game y'all or anything. I

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1 believed you the first time, but I didn't want you to think that how I was going to rule is going to depend on whether he said you wanted a continuance or not. And that's why I was asking again, just to make sure.

5 MR. SPARKS: Judge, could I be correct -- you said the Motion to Strike was -- 7 THE COURT: Denied.

8 MR. SPARKS: -- denied?

9 THE COURT: Motion for Leave to amend is granted.

11 MR. SPARKS: Then we do want a continuance, Judge.

13 THE COURT: How much time do you need?

14 MR. SPARKS: 40 days.

15 THE COURT: 40 days? I don't know if I've got trial time.

17 In light of the -- Mr. Sparks' request for a continuance, which I am going to grant, Mr. Thweatt do you have anything to say on how much time you need for a continuance?

21 MR. THWEATT: Judge, may I confer with Mr. Sparks?

23 THE COURT: Yes.

24 (Off the record conference.)

25 MR. THWEATT: Your Honor, one question

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1 of clarification: Is your ruling applicable to both defendants or just to Four J's Community Living Center in light of Mr. Plummer's comments to the Court?

4 THE COURT: Mr. Plummer, are you -- 5 MR. PLUMMER: Judge, primarily to Four J's. It doesn't apply to Ms. Uduma.

7 THE COURT: So you're not asserting Chapter 74 as to Ms. Uduma?

9 MR. PLUMMER: Well, as the -- as the owner of the property.

11 THE COURT: Well, what does that mean?

12 She's a defendant. Is -- are you going to claim any -- any defenses, any rights, any applicability of Chapter 74 to Ms. Uduma?

15 MR. PLUMMER: No, Your Honor.

16 THE COURT: All right.

17 MR. SPARKS: Then if that's the case, we won't -- we won't need the continuance, Judge.

19 THE COURT: All right. Okay. So let's move on. We've got to move quickly here.

21 First of all, I've got plaintiff's Motion in Limine, defendant's Motion in Limine. I didn't see an intervenor's Motion in Limine.

24 Did you have any Motions in Limine?

25 MR. SPARKS: No, we didn't, Judge.

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1 We'll adopt those from the plaintiff.

2 THE COURT: All right. Looking first at the Motions in Limine of the plaintiff, which of these do you contest, Mr. Plummer?

5 MR. PLUMMER: Mr. Raval will respond, Your Honor.

7 THE COURT: Which do you contest?

8 MR. RAVAL: Your Honor, 23 and 24.

9 THE COURT: All right. So plaintiff's Motions 1 through 22 are granted as agreed.

11 23, Mr. Thweatt? This is your motion, isn't it?

13 MR. THWEATT: It is, Your Honor. I think the facts in this case may show -- well, they will show, if the Court permits it, that Ms. Wagner entered into a foster care agreement with Four J's Community Living Center after this fire; and we don't believe that's relevant.

19 We also believe that such agreements will improperly introduce collateral source into this case. There's a number of issues related to Social Security, Medicaid, those types of things, that could flow from that; and that's the basis of our motion in that regard.

25 THE COURT: How would the collateral

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1 source evidence come into play if that agreement comes into evidence?

3 MR. THWEATT: Well, there's been description from Ms. Wagner in her testimony that she received Social Security benefits. She's a Medicaid -- her daughter's a Medicaid recipient. That's what we're worried about here.

8 She's now the guardian, just at Four J's used to be -- I'm sorry -- just as -- the caretaker just as Four J's used to be. We don't want the jury knowing about collateral source because of -- 12 THE COURT: But my question is: How does the October 2nd, 2008, agreement raise collateral source? I don't understand the connection to the collateral source.

16 MR. THWEATT: Because it's referenced within the agreement.

18 THE COURT: Okay. So the payments from the Social Security.

20 MR. THWEATT: Yes.

21 THE COURT: I see. All right.

22 Response?

23 MR. RAVAL: Your Honor, I think we can redact anything, as necessary, in the agreement. Second of all, the main reason we're objecting to this -- for

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1 one thing, we plan to discuss the agreement and Ms. Wagner's care after the fire. It goes directly to the issue of damages and mental anguish.

4 Second of all, we do plan on -- if not the agreement itself, a portion of the agreement, it talks about the rights of the patient and the rights of the individual. That's something that predates the fire. But specifically regarding this agreement, it is -- we believe we can redact any issue about payment and that it is relevant to her continuing care.

11 THE COURT: How is it relevant? What material issue or fact is made more likely or less likely by the admission of this agreement into evidence?

14 MR. RAVAL: The agreement is relevant to show -- it goes to her damages. It goes to her mental anguish damages, that -- and the testimony we expect that is going to come forward about what her behavior was like after the fire, what -- what her sleeping patterns were, and other things.

20 The -- again, the agreement itself, with payment redacted, we believe, is relevant to -- 22 THE COURT: How is the agreement itself relevant? What does it matter that after the agreement -- or after the fire there was an agreement between Four J's and -- and Ms. Wagner?

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1 MR. RAVAL: The fact that she was willing to continue staying on with Four J's for a period after the fire of about eight or nine months or getting treatment and care from people connected to Four J's is relevant to the damage issue.

6 THE COURT: How? I -- you're not -- just telling me it's relevant isn't showing me it's relevant.

9 How does that make any issue about damages more likely or less likely?

11 MR. RAVAL: If -- if she were -- in some way blamed Four J's for what happened, it is less likely that she would have continued getting services from employees or people connected to Four J's. She continued to do so for a period after the fire of about eight or nine months.

17 THE COURT: So the fact that she continued to do business means that the plaintiff didn't have any damages?

20 MR. RAVAL: No. It goes strictly to the mental anguish damages, that if she blamed Four J's for what happened in the fire, it's more likely that she would have stopped employing them. She, in fact, continued to employ them and use their services. That is relevant to mental anguish.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000554 Volume 1

1 THE COURT: Mr. Thweatt, any response?

2 MR. THWEATT: Well, the testimony at her deposition, Judge, was that she continued to use them -- her services because, really, she didn't know where else to turn, not because she was satisfied or happy with the services that had been provided, particularly up to the fire on September 4th, 2008.

8 So we certainly dispute that there's any sort of ratification that -- of Four J's by our client postfire, and we just feel like it's going to be evidence that's not going to be contributing to any sort of fact at issue.

13 What matters here is what happened on September 4th, 2008, not what happened subsequent to that.

16 THE COURT: All right. 23 is granted.

17 24, Mr. Thweatt?

18 MR. THWEATT: Your Honor, there was an investigation into this fire by a State agency. I think the outcome of that investigation was inconclusive, and we don't believe that an agency's determination, even if it were conclusive or -- or it found no negligence on behalf of Four J's, is something that the jury should be considering in this case. It's not relevant. Even if it is somehow relevant, it's substantially more

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000555 Volume 1

1 prejudicial than probative.

2 A State agency is, in my mind, very similar to a law enforcement agency investigating a car accident. The Courts routinely exclude those unless there's some sort of proper foundation laid for those, and it's just -- it's just not something we think the jury ought to be concerning themselves with in this case.

9 THE COURT: So your -- the grounds of your objection are what, relevance?

11 MR. THWEATT: Relevance, inadmissible hearsay, and 403. That's what I cited.

13 THE COURT: Response?

14 MR. RAVAL: Intervenor is attempting in their exhibits to admit parts of this [sic] statements from some of the witnesses that were interviewed by the State agency that conducted this investigation.

18 So some of these apparent hearsay statements are being attempted to be admitted as evidence.

21 Second of all, the report itself, we agree, is not determinative of any issue with regard to negligence but it's instructive to the jury. The fact that the results were inconclusive shows that there's not some kind of adverse finding against Four J's.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000556 Volume 1

1 The jury's entitled to understand that there was an investigation done, people were interviewed, what they said, what they told the -- what the agency was told by these employees and other witnesses, and what the end result was.

6 THE COURT: Why does it matter to the jury -- since the end result was it was inconclusive, why does it matter to the jury? How does it help the jury?

10 MR. RAVAL: Otherwise, the jury may make the inference that there was some kind of adverse result.

13 THE COURT: Well, are you asking to exclude the investigation or just the report?

15 MR. THWEATT: The report, the investigation's conclusions, all of it. We don't want any of it.

18 THE COURT: No evidence that there was an investigation?

20 MR. THWEATT: That's correct, not by the Texas Department of Aging and Disability Services.

22 MR. RAVAL: In addition, Your Honor, we believe that their experts relied on this agency report in making some of their conclusions.

25 MR. THWEATT: My experts haven't

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000557 Volume 1

1 testified. They haven't been deposed in this case, and we're not sure what -- what they're going to say about that at all. And we'll certainly abide by the Court's ruling.

5 THE COURT: 24 is granted if -- and this is just an order in limine. So if for some reason you feel like a door has been opened or you need to get into it, you can ask to approach the bench and we'll take it up again.

10 MR. RAVAL: Yes, Your Honor.

11 THE COURT: All right. Turning to defendant's Motions in Limine, which are in dispute?

13 MR. THWEATT: Your Honor, we've agreed to defendant's Motion in Limine 2 and 3. I believe there are five of them.

16 THE COURT: Well, I've got -- the Motions in Limine from defendants I've got were filed March 11th. Are these your latest and greatest?

19 MR. RAVAL: Your Honor, we filed an amended Motion in Limine sometime last week.

21 THE COURT: And do you have a copy for me?

23 MR. RAVAL: I do, Your Honor.

24 THE COURT: Okay. So you agree to 2 and 3?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000558 Volume 1

1 MR. THWEATT: We do, Your Honor.

2 THE COURT: Mr. Sparks, is that consistent with your view?

4 MR. SPARKS: Just a second, Your Honor.

5 Yes, sir.

6 THE COURT: Okay. So 2 and 3 are granted as agreed. Start with Number 1.

8 MR. RAVAL: Your Honor, regarding Number 1, it's our understanding that Ms. Wagner used a wheelchair accessible van before the fire because of her existing disabilities. If there's a request for damages pertaining to or retrofitting a wheelchair accessible van out of some kind of claim about injuries related to the fire, it's our contention that was a preexisting condition and that is not evidence of damages related to this fire.

17 THE COURT: There's a dispositive motion. That's denied.

19 4?

20 MR. RAVAL: Your Honor, one of the witnesses that we've -- will appear will -- by deposition is Dr. Karen Gollaher. She conducted a site evaluation of Esperanza Arzola, the person who started the fire in this case, one of the clients at the home.

25 Any conclusions or competency

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000559 Volume 1

1 evaluations by Dr. Gollaher strictly pertain to the criminal trial and Ms. Arzola not being competent to stand trial. That's not relevant to what happened -- what goes on in this trial, and also we say it's overly prejudicial under Rule 403.

6 THE COURT: How is it unfairly prejudicial?

8 MR. RAVAL: A determine -- determination that Ms. Arzola was unfit to stand trial in a criminal trial has nothing to do with whether or not she's a responsible third party in this case. It's a different standard of proof.

13 THE COURT: So, she was declared incompetent to stand trial? She wasn't -- she wasn't diagnosed as criminally insane or anything like that?

16 Is that what you're saying?

17 MR. RAVAL: That's my understanding, Your Honor.

19 THE COURT: Okay.

20 MR. RAVAL: And to this day, she has not stood trial.

22 THE COURT: Response?

23 MR. THWEATT: Your Honor, she can't be determined, according to Dr. Gollaher's testimony, as criminally insane until there is a determination that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000560 Volume 1

1 she's competent to stand trial. And Dr. Gollaher was appointed by the criminal district court in Fort Bend County to determine whether or not she was capable mentally of understanding the charges against her, of assisting with her defense, and Dr. Gollaher determined that she was not.

7 From that point, she was sent to a psychiatric institution, where she remains today, and will be there forever until qualified personnel determine that she's competent to stand trial.

11 So I just wanted to provide some background on that for the Court.

13 They are -- they have designated Esperanza Arzola as a responsible third party; and I believe the evidence in this case, at least in the depositions thus far, indicates that they believe she is solely responsible for the fire.

18 Because of their position, we think it's very important that the jury know -- I mean, I -- if -- were I them, I'd be waving around the indictment and the criminal charges throughout this trial.

22 If they're going to do that, I think we need to be permitted to respond to that and to rebut it with a showing that, look, that was a charge based upon law enforcement, not upon any psychiatric or

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000561 Volume 1

1 psychological evaluation of this woman.

2 There's a lot that they knew about Ms. Arzola before the fire, and we'll address that.

4 This issue is important to us, to show that, look, they're trying to blame somebody who's been determined incompetent to stand trial for something that they had a duty to prevent and care for. And that's our position.

8 MR. RAVAL: May I respond, Your Honor?

9 THE COURT: Just a moment. I'm trying to get my arms wrapped around this.

11 She's been declared incompetent to stand trial. This declaration occurred sometime after the fire.

14 MR. THWEATT: Correct.

15 THE COURT: You're saying that's not relevant; is that right?

17 MR. RAVAL: That's correct, Your Honor.

18 THE COURT: Okay. Mr. Thweatt, how is her postfire competency relevant to any of the claims or defenses in this case?

21 MR. THWEATT: Because the psychologist who made that determination, as part of the decision-making process, reviewed her entire psychological profile, much of which -- well, all of which occurred before the fire.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000562 Volume 1

1 And then she also conducted an interview in the prison. That's what occurred after the fire. But the vast majority of it that she took into consideration and referenced in her report was prefire conduct, prefire behavior that Esperanza Arzola described.

7 And most of that -- much of that came from Four J's, Judge. She went and got it from Ms. Arzola's defense -- criminal defense attorney who had Four J's as a reference. So she considered that when she made her determination; and we think because of that, her determination is highly probative on the issue of whether or not Ms. Arzola should be blamed or -- responsible for this fire.

15 THE COURT: And do I understand your argument is that really comes up because they're going to -- you believe that Defense is going to try and convince the jury that she is 100 percent to blame for this or that, because there was a criminal act, they're somehow absolved of liability for any of their responsibility? I'm trying to understand.

22 MR. THWEATT: Well, I think the pleadings -- the pleadings that they have filed, Judge, say that the criminal act absolves them from punitive damage responsibility. They've certainly have pled

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000563 Volume 1

1 that.

2 But in terms of the ultimate liability question, Ms. Uduma has testified that she does not believe that she personally is responsible for the fire or that her company is -- is responsible for the fire.

6 And her testimony indicates unequivocally that Esperanza Arzola is the reason why these injuries resulted.

8 THE COURT: I'm going to deny Number 4.

9 Your reply?

10 MR. RAVAL: Your Honor, related to that issue, we believe it's irrelevant, where Ms. Arzola is currently located. The fact that she is currently not competent to stand trial or that she is awaiting the ability to stand criminal trial or where she is is not relevant to anything in this trial.

16 THE COURT: Response, Mr. Thweatt?

17 MR. THWEATT: I think the sole evidentiary issue there, Your Honor, is that she is still -- there was some suggestion by prior counsel for the defendant that Ms. Arzola could be out on the streets, the charges could have been dismissed. We don't know exactly what happened to her. That was the comment in a deposition, and that's just not true.

24 Ms. Arzola is presently institutionalized; and the only evidentiary issue there

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000564 Volume 1

1 is that I don't want them suggesting to this jury that she's never stood trial, she's never faced charges, anything like that. It's a small point, but it depends on how expansive that limiting motion is read by the Court. That's my concern.

6 I don't want them suggesting that, you know, there's never been a determination on whether she did it or not and that kind of thing. That's my worry there.

10 THE COURT: 5 will be granted.

11 Obviously, if for some reason we need to talk about her current location, you can approach the bench, and we can revisit that.

14 MR. THWEATT: Thank you, Your Honor.

15 THE COURT: By the way, Mr. Sparks, I apologize. I didn't ask for your input on any of this.

17 Did you have anything to add on anything?

18 MR. SPARKS: I didn't, Judge.

19 THE COURT: I apologize.

20 MR. SPARKS: Except for the fact, Judge, in the -- the issue regarding the competency and the sanity. I think you may have raised what Mr. -- Dr. Gollaher indicated under the Code of Criminal Procedure is that in order for her to make a determination of sanity, she'd first have to make the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000565 Volume 1

1 determination that she was competent.

2 And if a determination of incompetency is made, they can't even evaluate the issue of sanity.

4 So that situation was something she could not consider.

5 THE COURT: All right. Thank you. All right.

7 Turning to exhibit lists... I've got the exhibit list of plaintiff, Patti J. Wagner, as guardian of Jenny Ann Wagner which was filed, looks like, March 11th.

11 Is this your latest and greatest, Mr. Thweatt?

13 MR. THWEATT: No, Your Honor. We have an amended exhibit list. The only change, we've added Exhibit 58.

16 THE COURT: Do you have a copy of your latest and greatest for me?

18 MR. THWEATT: I do.

19 THE COURT: While he's doing that, I've got the second amended exhibit list of intervenor, Wylette Taylor, filed October 11th.

22 Mr. Sparks, is this your latest and greatest?

24 MR. SPARKS: It is, Judge.

25 THE COURT: And then from Defense I've

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000566 Volume 1

1 got an October 13th first amended exhibit list. Is that your latest and greatest?

3 MR. RAVAL: Your Honor, we have a second amended; but the only difference is we withdrew some exhibits.

6 THE COURT: Okay. Do you have a copy of your second amended for me, or is it in your notebook that you submitted?

9 MR. RAVAL: I believe it is.

10 THE COURT: Okay. That's fine. I got it. I just want to make sure I'm up to speed.

12 All right. First things, we're going to look at Plaintiff's exhibits. My practice is I admit exhibits that are not objected to pretrial. If there's an objection, usually we just do those exhibits the old-fashioned way during the course of trial unless it's truly one of those objections that I can rule on without foundational testimony, like whether or not it was responsive to a particular discovery request and, therefore, should have been disclosed or whatnot.

21 So looking at the second amended exhibit list of Plaintiff, can you tell me which ones you do not object to?

24 MR. RAVAL: We agree to Exhibits 1 through 33, 35, 36, 37, 39 and 40, 43 through 48.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000567 Volume 1

1 MR. THWEATT: By the way, I should have said, we withdraw Plaintiff's Exhibit 48, Your Honor.

3 THE COURT: All right. Please continue.

5 MR. RAVAL: 50, 51, 52, 53, and that's all of them. We have objections to the remaining exhibits.

8 THE COURT: Okay. Lois, will you let the jury know we'll be about another ten minutes, please.

11 Okay. So Plaintiffs agree to 1 through 33, 35 to 37, 39 to 40 -- I'm sorry. Defendants agree to 1 to 33, 35 to 37, 39 to 40, 43 through 47, and 50 to 53?

15 MR. RAVAL: Correct, Your Honor.

16 THE COURT: All right. Then do you want to offer those into evidence, Mr. Thweatt?

18 MR. THWEATT: I do.

19 THE COURT: Am I pronouncing that correctly?

21 MR. THWEATT: It's Thweatt, Your Honor.

22 THE COURT: Excuse me. I'll get it right by the end of trial.

24 MR. THWEATT: Thank you, Your Honor.

25 THE COURT: So 1 through 33, 35 to 37,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000568 Volume 1

1 39 to 40, 43 to 47, and 50 to 53 are admitted.

2 (Plaintiff's Exhibits 1 through 33, 35 through 37, 39, 40, 43 through 47 and 50 through 53 are offered and received in evidence.)

5 MR. RAVAL: Your Honor, we're also okay with 58, the stipulation.

7 THE COURT: 58 is admitted.

8 (Plaintiff's Exhibit 58 is offered and received in evidence.)

10 THE COURT: Okay. Next we'll look at the Intervenor's.

12 MR. SPARKS: Judge, if I may, you asked me about -- if the second was the latest and greatest.

14 Actually, I have a fourth that we need to disclose. I want to give you that copy there.

16 THE COURT: Okay. Sure. Thank you.

17 All right. Looking at Intervenor's fourth amended exhibit list, can you tell me which ones you agree to?

20 MR. RAVAL: Your Honor, we're agreeing to Exhibits 1, 2, 4 through 8, 10 through 12, and 15 through 24.

23 THE COURT: So that's 1, 2, 4 through 8, 10 to 12, and 15 to 24?

25 MR. RAVAL: Correct, Your Honor.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000569 Volume 1

1 THE COURT: Do you want to offer those, Mr. Sparks?

3 MR. SPARKS: I do, Judge. Judge, we also would like to -- we're going to withdraw the -- Number 12.

6 THE COURT: Number 12 is withdrawn.

7 So, Intervenor's Exhibits 1, 2, 4 through 8, 10, 11, and 15 through 24 are admitted.

9 (Intervenor's Exhibits 1, 2, 4 through 8, 10, 11, and 15 through 24 offered and received in evidence.)

12 THE COURT: And then looking at Defendant's second amended exhibit list, Mr. Thweatt, Mr. Sparks, can you tell me which ones you agree to?

15 MR. THWEATT: Your Honor, we agree to Defendant's Exhibits 2, 3, 4, 7, 10, 11, 12, 15, 16, 18 through 25, 36 and 37, 59, 64 through 68 -- I'm sorry -- 65 was withdrawn, it looks like on my sheet. So 66 through 68 and then 70.

20 THE COURT: 2 through 4, 7, 10 through 12, 15 and 16, 18 through 25, 36 and 37, 59, 64, 66 through 68, and 70?

23 MR. THWEATT: Correct, Your Honor.

24 THE COURT: And, Mr. Sparks, you're in agreement on those?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000570 Volume 1

1 MR. SPARKS: I am, Judge.

2 THE COURT: All right. Do you want to offer those?

4 MR. RAVAL: We offer those, Your Honor.

5 THE COURT: All right. So Defendant's Exhibits 2 through 4, 7, 10 through 12, 15 and 16, 18 through 25, 36 and 37, 59, 64, 66 through 68, and 70 are admitted.

9 (Defendant's Exhibits 2 through 4, 7, 10 through 12, 15 and 16, 18 through 25, 36 and 37, 59, 64, 66 through 68, and 70 offered and received in evidence.)

13 THE COURT: I'm told that the jury has arrived. They're out in the hallway. So we're going to go ahead and launch into voir dire. We'll deal with any objections to deposition excerpts after the jury's been excused for the day.

18 We should probably -- we will take a lunch break. It depends on how quickly we get through the panel examination on when in the process we're going to do it. We'll also do opening statements.

22 And, Mr. Thweatt, you should be ready with your first witness to get going today. We usually at least start with the first witness today.

25 We will probably end 4:30 or so, maybe

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000571 Volume 1

1 4:45 today. It's a long day for the jury. But after today, we go until 5:00 every day, get a midmorning break at around the 10 o'clock hour, a midafternoon break around the 3 o'clock hour. Those will be about 15-minute breaks. We start at 8:30. We'll get a lunch break -- I forgot to give you-all the schedule earlier.

7 Make sure you look at your jury card information to make sure you've got pages for all 48 jurors, please. There was a copying mixup.

10 MR. PLUMMER: Judge, is it likely we're to do opening statements and all that by lunchtime?

12 THE COURT: No. If we complete jury selection without having taken a lunch break, then we'll take our lunch break between jury selection and opening statements. And we may have to take our lunch break during the voir dire process, but I don't see us finishing jury selection so soon that we can launch into opening statements and finish that before lunch.

19 MR. THWEATT: Your Honor, one -- one note: Juror Number 46 appears to be Judge Elrod.

21 THE COURT: Yes.

22 MR. THWEATT: Okay. Just so the Court's aware.

24 THE COURT: All right. You get about five minutes to move your chairs around, so -- and make

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000572 Volume 1

1 sure you leave room for my court reporter to move over there.

3 (Break taken from 9:42 a.m. to 9:49 a.m.)

5 THE COURT: All right. Back on the record.

7 I just visited with the jury out in the hallway informally to thank them for their service, welcome them to the court, and remind them to speak up and say what they have to say during the jury selection process, pointed out to them that until a verdict is rendered, this is the only time that they get to talk to the lawyers. Of course the time the lawyers are talking to them, it's a one-way street.

15 So right now any of them that have unavoidable scheduling conflicts are letting Deputy Dewey, the bailiff, know. She'll communicate that information to me, and then I'll relay it to you.

19 Generally, I let y'all voir dire any jurors on those type of things unless it's something I think I particularly really need to do or if it's something that's so obvious that we can take care of it without voir diring them.

24 I rarely grant hardship exceptions, especially those that would count as an exemption since

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000573 Volume 1

1 exemptions are already provided for and all they have to do is claim them before coming down.

3 But occasionally we have situations or the parties may agree that someone should be excused for whatever reason, so that's fine. So we're about to get that information, and then I'll also -- I've got to do my mandated instructions to the jury before y'all start your examination.

9 At one point I will ask the lead lawyer for each party to introduce themselves, their co-counsel, and their clients. I'll then briefly voir dire as to if anybody knows or recognizes or thinks they know or thinks they recognize the people that are introduced.

15 Oftentimes, I'll leave it at that.

16 Every once in awhile I may do follow-up voir dire on it, but be ready to follow up voir dire if...

18 All right. Juror Number 1 has informed the bailiff that she has no one to pick up her children from school. Juror Number 21 has a critically ill mother-in-law who may need to be taken off of life support on Wednesday. Again, this is not official.

23 This is what they've told the bailiff. And then Juror Number 37 has a business trip on Wednesday and Thursday.

25 That doesn't count, but y'all may want to ask some

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000574 Volume 1

1 questions of Juror Number 1 or Juror Number 21.

2 MR. THWEATT: Your Honor, as you introduce the parties -- I note that Ms. Uduma is not here, and it may be difficult for the jury to know whether they recognize her or not if she's not physically present.

7 THE COURT: They recognize the name. I mean, that's -- we'll just deal with it.

9 MR. PLUMMER: Judge, the 37 or 38 that has -- 11 THE COURT: 37 had a business trip on Wednesday and Thursday.

13 All right. Bring in the jury, please.

14 THE BAILIFF: Yes, sir.

15 (Jury panel in courtroom.)

16 VOIR DIRE BY THE COURT 17 THE COURT: Thank you. Please be seated.

19 Ladies and gentlemen, I want to welcome you again to the 269th District Court. I am Dan Hinde.

21 I'm the judge of this court.

22 Before we begin the proceedings, I'd like to introduce the Court's staff to you. As you're going to see them throughout this trial, I thought it would be nice for you to put some names to the faces you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000575 Volume 1

1 will see.

2 You've already met the court's bailiff, Lois Dewey. She is the best in the business. She's been the bailiff of this court since the late 1980s. I am the third judge who has worked for her.

6 Those of you who become members of the trial jury in this case are in for a very pleasant treat. I get feedback from jurors all the time.

9 Sometimes they're complimentary of me, sometimes they're complimentary of the lawyers. They're always complimentary of Bailiff Dewey. She is the best in the business, and so you're very fortunate that you'll get to work with her if you become a member of the trial jury.

15 You'll also see our court reporter, Annette, over here to my right just on the other side of the rail from y'all. It's her job to take down everything everybody in this courtroom says. In order for her to do that in a way that has meaning for people who want to read the transcript later, we're going to have to follow a few formalities that we don't often observe when we're talking to each other informally.

23 First of all, when you respond to a question, we need you to use your voice. Hand gestures, shoulder shrugs, head nods, things of that nature, while

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000576 Volume 1

1 meaningful to those of us here in the courtroom because we can see it, don't show up very well on the transcript and are hard for people to understand later who are reading the transcript. So when you respond, we need you to use your voice.

6 We also need you to use words when you respond. Oftentimes when we're talking to each other, we'll use sounds like "huh-uh" or "uh-huh" or "mh-mmm." Again, she can try and write those down; but they're not going to have any meaning to people who are reading them later. So when you respond, please use words.

12 We also need people to avoid talking over each other. Again, this is something that's common in informal speech. You're talking to a friend or a family member and you know what they're trying to say, you start answering before they finish their sentence because you know what each other's saying.

18 When two people are talking, it makes life very difficult for the court reporter. It's hard enough, if you can imagine writing down every syllable a single person says. But when two people are talking at the same time, it is nearly impossible.

23 So when you are -- when you are talking, please wait until me or the lawyers have finished saying what we have to say and then start your

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000577 Volume 1

1 response.

2 And the lawyers and I will do the same.

3 We will wait until you are done, and then we'll start responding.

5 We also need you, when you respond, to give your juror number. That way we know precisely who is talking. We also would ask that you would raise your hand. If you have an answer to a question, raise your hand, we'll call on you.

10 When you are called on, then give your juror number. "I'm Juror Number 50, and my answer is yes," or "I'm Juror Number 60, and my answer is no." 13 You've also met the Court's coordinator, Mr. Alex Garibay, over to my extreme left.

15 He and my assistant clerk, Di, here have a lot of work to do. This court has about 1700 active cases pending before it besides the one that we're going to try today.

18 Now, we can do it. I've got a great staff; and we do a pretty good job, I think, of making sure that all the cases get the attention that they need in order for them to move forward. But sometimes it requires multitasking. So you'll see Mr. Garibay and Ms. Purvis entering and exiting the courtroom from time to time.

25 It's not because they're not interested

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000578 Volume 1

1 in this case or that they don't value your time. It's that they have to go back to their offices and do some work on some of the other cases. So please don't take it the wrong way. They're really trying to do their best to make sure all cases get the attention they need to move forward and get to resolution.

7 Now, many of you may have been through the jury selection process before. For those of you who have not, I thought I would take a few moments to describe it to you.

11 In Texas, as in all other states in the United States, the parties to a lawsuit generally have a right to a trial by jury. The right to a jury trial is one of the oldest rights in our legal system. In fact, it's older than the right to vote.

16 The origins of our legal system's right to a jury trial go back to at least the 1200s in England. One of the aspects of a trial by jury is the jury selection process, a procedure which we call voir dire.

21 "Voir dire" is a French phrase that means to tell the truth. Although we often call this part of a trial jury selection, it is more accurately described as a process of juror deselection.

25 The parties do not pick the jurors they

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000579 Volume 1

1 want on the jury so much as they strike a limited number of jurors from serving on the trial jury.

3 The first 12 jurors on the panel who are not struck for cause or struck by what is called a peremptory strike are empaneled as the trial jury for the case.

7 Now, this part of the trial is the only time when jurors can talk to the lawyers until after the verdict is rendered. It is, therefore, helpful for each of you to be candid and to speak up.

11 Now, in a moment I will administer an oath to you, give you some instructions, and ask a few preliminary questions. After that, the lawyers will ask you some questions as a group.

15 Once we have completed the group questioning, we will take a break, at which time we may ask a handful of you to come back in one by one to answer some follow-up questions.

19 After that break, we will bring you all back in and the clerk will read the names of the members of the trial jury and those people will come forward, sit in the jury box, and we'll proceed.

23 Now, I need to administer an oath to you; so please raise your right hands.

25 (Jurors sworn to the voir dire oath by

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000580 Volume 1

1 the Court.)

2 THE COURT: Thank you.

3 I now have some additional instructions to give you. Please listen carefully and let me know if you don't understand.

6 JUROR INSTRUCTIONS 7 THE COURT: Members of the jury panel, we are here to select a jury. 12 of you will be chosen for the jury. Even if you are not chosen for the jury, you're performing a valuable service that is your right and duty as a citizen of a free country.

12 Before we begin, please turn off all phones and other electronic devices. While you are in the courtroom, do not communicate with anyone through any electronic device. For example, do not communicate by phone, text message, e-mail message, chat room, blog, or social networking websites such as FaceBook, Twitter, or MySpace.

19 I will give you a number where others may contact you in case of an emergency. Do not record or photograph any part of these court proceedings. It is prohibited by law.

23 If you are chosen for the jury, your role as jurors will be to decide the disputed facts in this case. My role will be to ensure that this case is

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000581 Volume 1

1 tried in accordance with the rules of law.

2 Here is some background about this case: This is a civil case. It is a lawsuit, that is, not a criminal case.

5 The plaintiff is Patti J. Wagner, the guardian of Jenny Ann Wagner. There's also -- excuse me. I'm a little out of sorts.

8 There's also another plaintiff, Wylette Taylor, who is guardian of Derrick James.

10 The defendants are a company called Four J's Community Living Center, Inc., and Anthonia Uduma.

13 I've got some instructions I need to give you. Every juror must obey these instructions.

15 You may be called into court to testify about any violations of these instructions. If you do not follow these instructions, you will be guilty of juror misconduct and I might have to order a new trial and start this process over again. This would waste your time and the parties' money and require the taxpayers of this county to pay for another trial.

22 Here are the instructions: One, to avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000582 Volume 1

1 exchange casual greetings like "hello" and "good morning." Other than that, do not talk with them at all. They have to follow these instructions, too; so you should not be offended when they follow the instructions.

6 Two, do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case. And do not do any favors for them. This includes favors such as giving rides and food.

10 Excuse me, ma'am? Are you a juror?

11 UNIDENTIFIED PERSON: No. 12 THE COURT: Okay. Come forward.

13 (Discussion off the record.)

14 THE COURT: Number three, do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means, including by phone, text message, e-mail message, chat room, blog, or social networking Web sites such as FaceBook, Twitter, or MySpace. Do not allow anyone to discuss the case with you or in your hearing.

21 If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court.

25 Four, the parties, through their

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000583 Volume 1

1 attorneys, have the right to ask you questions about your background, experiences, and attitudes. They're not trying to meddle in your affairs. They're just being thorough and trying to choose fair jurors who do not have any bias or prejudice in this particular case.

6 Five, remember that you took an oath that you will tell the truth. So be truthful when the lawyers ask you questions, and always give complete answers. If you do not answer a question that applies to you, that violates your oath. Sometimes a lawyer will ask a question of the whole panel instead of just one person. If the question applies to you, raise your hand and keep it raised until you're called on.

14 Do you understand these instructions?

15 If not, please raise your hand.

16 (No response.)

17 THE COURT: I see no hands.

18 At this time I'd like the lawyers to introduce themselves to you, along with their clients.

20 Mr. Thweatt.

21 MR. THWEATT: Good morning, ladies and gentlemen. I'm Lee Thweatt. I represent this lady here, Patti Wagner, and on behalf of her daughter, Jenny. This is my law partner, Joe Terry. He'll be the one speaking with you this morning.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000584 Volume 1

1 THE COURT: Mr. Sparks.

2 MR. SPARKS: Good morning. How are you doing? My name is Shelton Sparks, and this is Tiffany Harvey. We represent Derrick James; and this is his guardian, Wylette Taylor.

6 THE COURT: Mr. Plummer.

7 MR. PLUMMER: Good morning, ladies and gentlemen. My name is Jim Plummer. I, along with my associate, Amar Raval, and our legal assistant, Gabriella Trevino, represent Four J's Community Living Center and Anthonia Uduma.

12 Ms. Uduma will be here following jury selection and will attend the entirety of this trial.

14 THE COURT: Thank you.

15 I have a question for all of you.

16 First of all, do any members of the panel know, think they know, recognize, or think they recognize any of the lawyers who introduced themselves or their colleagues to you just a moment ago? If so, please raise your hand.

20 (Hands raised.)

21 THE COURT: Yes. You're Juror Number 42?

23 PROSPECTIVE JUROR 42: Yes.

24 THE COURT: Stand up, please.

25 Who do you know or recognize?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000585 Volume 1

1 PROSPECTIVE JUROR 42: I don't know him, but I recognize Mr. Thweatt because he's a member of my church.

4 THE COURT: And what church do you go to?

6 PROSPECTIVE JUROR 42: Christ the King Lutheran.

8 THE COURT: All right. Thank you.

9 Yes, Juror Number 46.

10 PROSPECTIVE JUROR 46: I recognize several of the lawyers, particularly I recognize Mr. Plummer, but only from seeing them in a professional context. I don't have a personal relationship with any of the lawyers.

15 THE COURT: All right. Thank you.

16 Any other people?

17 Yes, ma'am, Juror Number 6.

18 PROSPECTIVE JUROR 6: Mr. Plummer.

19 THE COURT: Okay. How do you know Mr. Plummer?

21 PROSPECTIVE JUROR 6: He represented my sister.

23 THE COURT: Okay. And how long ago was that?

25 PROSPECTIVE JUROR 6: Probably about

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000586 Volume 1

1 ten years ago.

2 THE COURT: I'm sorry?

3 PROSPECTIVE JUROR 6: Probably about ten years ago.

5 THE COURT: Okay. Thank you.

6 Anyone else?

7 Yes, Juror Number 10.

8 PROSPECTIVE JUROR 10: Yes.

9 Mr. Plummer.

10 THE COURT: Okay.

11 PROSPECTIVE JUROR 10: He represented my business.

13 THE COURT: When was that?

14 PROSPECTIVE JUROR 10: In years -- probably two years ago.

16 THE COURT: Two years ago?

17 PROSPECTIVE JUROR 10: Uh-huh.

18 THE COURT: Has that representation completed?

20 PROSPECTIVE JUROR 10: Yes.

21 THE COURT: Okay. When did it finish?

22 PROSPECTIVE JUROR 10: Probably last year.

24 THE COURT: Probably last year?

25 PROSPECTIVE JUROR 10: Uh-huh.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000587 Volume 1

1 THE COURT: Okay. All right. Thank you.

3 Anyone else?

4 (No response.)

5 THE COURT: All right. Does anyone know, think they know, recognize, or think they recognize any of the parties who were introduced to you a few moments ago?

9 (No response.)

10 THE COURT: I see no hands.

11 All right. The attorneys will now proceed with their -- their questions on examination for the panel.

14 Mr. Thweatt.

15 MR. THWEATT: Your Honor, Mr. Terry's going to handle that for us.

17 THE COURT: Okay. Mr. Terry, you may proceed.

19 MR. TERRY: Thank you, Your Honor.

20 VOIR DIRE BY THE PLAINTIFF 21 MR. TERRY: Good morning.

22 PROSPECTIVE JURORS: (As a group) Good morning.

24 MR. TERRY: Good morning.

25 PROSPECTIVE JURORS: (As a group) Good

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000588 Volume 1

1 morning.

2 MR. TERRY: There we go. There we go.

3 That's exactly what I need from you guys this morning.

4 I need you to talk -- I need you to tell me how you feel. I need your opinions, your biases. There's no right or wrong answer in what we're doing here today, and let me tell you why that's really important.

8 This is a very important case, a very serious case, and there's very serious allegations and very serious injuries, what we're dealing with here today. Okay?

12 Because we all have feelings and biases when we walked through that door today, every single one of us -- you didn't form them when you got in here this morning. You came in with them, and it's how we grew up, it's where we grew up, it's how we were raised.

17 We all have different opinions and biases based on different situations. That's just who we are; and that's what makes us this community, if you will. Okay?

21 It's very important that you tell us about those biases and those opinions. There's no right or wrong answer here today. Okay?

24 Now, if I were to ask you some questions down at the water cooler, or if I was to run

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000589 Volume 1

1 into you at a Stop-and-Go and ask you some questions, I'm sure there's some of you I couldn't get to shut up, probably.

4 Just because you get in here, doesn't mean you have to clam up. It doesn't mean you have to hold things inside. If you have something -- if you have an answer to one of our questions, anyone's questions here today, please let us know. Raise your hand. If I didn't see your hand raised, say, "Mr. Terry, hey. What about me? I've got something to say." Okay?

12 That's what we need from you here today, because eventually 12 of you are going to be up here and this case is going to be in 12 of your hands.

15 And again, very serious allegations, very serious injuries; and this is my client's only shot. Okay?

18 I want to tell you a little bit about the case just to make sure that -- that you -- no one knows about it or no one's recognized the facts.

21 On September 4th, 2008, there was a house fire. And in this house were housed mentally incapacitated, mentally retarded individuals, four of them. The house was owned by Four J's Community Living Centers, Inc.; and that was owned by Ms. Anthonia Uduma.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000590 Volume 1

1 Now, why we're here today is because our client, Jenny Wagner, who was mentally retarded, had cerebral palsy, couldn't function without help. That's why she was at this house. She was badly burned and had injuries from smoke inhalation. Okay?

6 Now, her mother, Ms. Jenny Wagner [sic] is here today. She's acting as Jenny's guardian in this lawsuit.

9 Now, a lot of you might think, well, if Jenny was the one who was injured, then why isn't she here today?

12 Well, lawyers -- we made the decision not to bring Jenny to these proceedings, and she will be presented during Ms. Wagner's questioning. And so the 12 people who are in the jury box will get to see Jenny.

16 And again, that's a decision we made based on her injuries and her mental state; and we hope that you understand that decision.

19 Now, this fire was started by another resident with a cigarette lighter. The plaintiffs allege that she shouldn't have had access to this cigarette lighter.

23 This case received a lot of publicity.

24 It was in the papers, and it was on TV.

25 Is there anyone here who remembers,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000591 Volume 1

1 knows someone involved in the fire, knows anything about the fire other than what I just told you right now?

3 (No response.)

4 MR. TERRY: Okay. Thank you.

5 I want to ask you some general questions. Is everyone here in agreement -- or think it's important that a president or CEO of a company should be held responsible for the actions that the company takes? Is everyone here in agreement with that?

10 PROSPECTIVE JURORS: (As a group) Yes.

11 MR. TERRY: Okay. What about this: Does everyone here think it's important that companies shouldn't put the act of making money over safety?

14 PROSPECTIVE JURORS: (As a group) Yes.

15 MR. TERRY: What about corporate responsibility in today's day and age, corporate responsibility, corporate accountability; does everyone think in today's age, that that's pretty important?

19 PROSPECTIVE JURORS: (As a group) Yes.

20 MR. TERRY: Now, what about the individuals that run these companies -- say, for example, the president and the CEO; who here is in agreement that those individuals should be held personally responsible, held accountable for the actions of the corporation?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000592 Volume 1

1 MR. PLUMMER: Excuse me, Your Honor.

2 I'm going to object.

3 May we approach the bench?

4 THE COURT: Yes.

5 (Bench conference.)

6 MR. PLUMMER: Judge, he's making a general statement that's just not consistent with what the law is.

9 THE COURT: Uh-huh. Sustained.

10 MR. PLUMMER: Okay.

11 (Open court.)

12 THE COURT: You may continue.

13 MR. TERRY: I'm sorry. There was a hand raised?

15 UNIDENTIFIED PROSPECTIVE JUROR: I said I disagree with that.

17 MR. TERRY: Okay. And Mr. -- Mr. McCraw?

19 PROSPECTIVE JUROR MCCRAW: Yes, sir.

20 MR. TERRY: Why is that?

21 PROSPECTIVE JUROR MCCRAW: Well, mainly because in a lot of -- a lot of people in -- in positions of responsibility and power, you can't be 100 percent held accountable with what people under you do. I mean, if -- if I -- if I enact -- if I'm a CEO of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000593 Volume 1

1 a company and I enact certain policies, I can't guarantee that everybody's going to follow that all the time.

4 MR. TERRY: Would you agree with me, sir, that -- 6 PROSPECTIVE JUROR MCCRAW: If I were the CEO of a company and somebody under me got me in trouble and it honestly wasn't my fault, I would -- I'd be really concerned.

10 MR. TERRY: And I guess you would have to look at the evidence and the facts that surround whatever happened. Would you agree with that?

13 PROSPECTIVE JUROR MCCRAW: Yeah. If they're in order to be presented correctly, yeah.

15 MR. TERRY: Okay. Who here, I guess, would agree with Mr. McCraw?

17 (Hands raised.)

18 UNIDENTIFIED PROSPECTIVE JUROR: I have a question as to interaction.

20 MR. TERRY: Yes, sir.

21 UNIDENTIFIED PROSPECTIVE JUROR: Would you please rephrase your question so I can -- are you -- 23 MR. TERRY: Sure, sure.

24 The question was, again: Who here would agree that, say, CEOs and presidents of a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000594 Volume 1

1 corporation should be held personally responsible?

2 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

3 That's what I wanted to know. And when you say "personal liability," are you saying that beyond the corporate shield, beyond any insurance, that after something happens, that you -- if you didn't get enough, you go after the CEO and take his home? You're talking about personal, individual liability?

9 MR. TERRY: Yes, sir.

10 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

11 I disagree with it.

12 MR. TERRY: Okay. And why is that?

13 UNIDENTIFIED PROSPECTIVE JUROR: I believe there have to be certain limits. I think there are ways that you can hold people accountable and responsible beyond stripping them of all their assets.

17 MR. TERRY: What if the facts showed there was, I guess, knowledge on the part of the president and CEO?

20 UNIDENTIFIED PROSPECTIVE JUROR: That would be different.

22 UNIDENTIFIED PROSPECTIVE JUROR: Yeah.

23 MR. TERRY: So it depends on the facts and the situation?

25 UNIDENTIFIED PROSPECTIVE JUROR: It

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000595 Volume 1

1 does.

2 MR. TERRY: Depends on the evidence presented?

4 UNIDENTIFIED PROSPECTIVE JUROR: Right.

5 (Hands raised.)

6 MR. TERRY: Yes, ma'am.

7 PROSPECTIVE JUROR HARRISS: I disagree -- or I agree with your statement. I disagree with the other guy.

10 MR. TERRY: Okay. And -- and that's -- you -- you agree with the statement that -- 12 PROSPECTIVE JUROR HARRISS: There's too many cases of the CEOs, the guys at the top, set the tone for the company. If they want everybody in their company to be honest and aboveboard, they're honest and aboveboard and they make sure that their staff and everybody down the chain of command understand that.

18 We've had too many examples of CEOs that are less than ethical, who -- or would turn a blind eye to whatever they're -- you know, they're hired -- you know, their staff below them are doing.

22 So I just believe that, you know, the CEO -- you get to the top because you have certain skills. You're getting paid boucoups of money. You're going to take that risk and you're going to take that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000596 Volume 1

1 accountability and that responsibility.

2 MR. TERRY: Thank you. Ms. Harriss?

3 PROSPECTIVE JUROR HARRISS: Yes.

4 MR. TERRY: Thank you.

5 I want to move on to another topic. I understand we have a limited amount of time here today to get to talk to you.

8 And it's called the burden of proof.

9 It's what we, as the plaintiff, the group that brought the lawsuit, what we have to prove to you, the jury, in order to hold the defendants liable.

12 That burden of proof is called preponderance of the evidence. Okay? And what that means is -- and you'll see it in a jury charge.

15 THE COURT: The Court will instruct the jury on the burden of proof.

17 Ladies and gentlemen, the term "preponderance of the evidence" means the greater weight of credible evidence admitted in this case. A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence.

23 For a fact to be proved by a preponderance of the evidence, the jury must find the fact is more likely true than not true.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000597 Volume 1

1 You may continue.

2 MR. TERRY: Judge, do you mind if I give an example of tipping of the scales?

4 THE COURT: Be careful.

5 MR. TERRY: Okay. As an example of that, what I like to use when I talk to juries like yourself, is the scales of justice.

8 If we, as the plaintiff, are able to put, say, one drop of water to tilt the scales into our favor -- 11 THE COURT: Mr. Terry, I gave the definition. That's not consistent with my definition.

13 MR. TERRY: All right. Sorry, Your Honor.

15 What a lot of you might be familiar with is the burden across the street, and that is beyond a reasonable doubt. That is the standard used in criminal cases.

19 That requires a lot higher burden than what we're dealing with here today, as the judge has explained to you what that standard is.

22 My question to you is: Is there anyone here who would not be able to look at the evidence and -- and view it in a preponderance of the evidence standard versus a reasonable doubt -- beyond a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000598 Volume 1

1 reasonable doubt?

2 (No response.)

3 MR. TERRY: So everyone here is fine with looking at the facts, liability, and damages by the standard as the judge has instructed you, and that is preponderance of the evidence? Everybody -- everyone's fine with that?

8 PROSPECTIVE JURORS: (As a group) Yes.

9 MR. TERRY: Next I'd like to talk to you about the damages portion of this case. And as we explain to a jury, a lawsuit is made up of two -- two, I guess, issues: Number one, liability, who done it, whose fault is it; number two would be damages, say, how badly is someone injured, what are their medical bills.

15 Again, those are viewed by a preponderance of the evidence standard.

17 One of the elements of damages in this case is going to be pain and suffering. This is a burn case, and so judging -- excuse me -- pain and suffering in that aspect, it's going to be difficult for some of you because pain and suffering is not an objective form of damages. We don't have a machine that we could plug Jenny in and spit out a number, and so that might be hard for some of you to come up with a number.

25 A machine can't judge hope, can't judge

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000599 Volume 1

1 pain, can't inspire a dream. You, as the jury, are the individuals to do that because only human beings can truly judge another human being's loss.

4 My question to you is -- and I'll start with the front row over here (indicating) -- would you -- who here on the front row disagrees with this statement: If supported by the evidence, a person is entitled to an award for pain and suffering? Who disagrees with that statement?

10 (No response.)

11 MR. TERRY: Nobody? Okay.

12 Over here (indicating), front row, tell me, please, who disagrees with this statement: If supported by the evidence, a person is entitled to an award for pain and suffering.

16 Does anyone on the front row here disagree with that statement?

18 PROSPECTIVE JURORS: (As a group) No. 19 PROSPECTIVE JUROR DOMINGUEZ: I disagree that they would be entitled.

21 MR. TERRY: Okay. Juror Number 11?

22 PROSPECTIVE JUROR DOMINGUEZ: Uh-huh.

23 MR. TERRY: Ms. Dominguez?

24 PROSPECTIVE JUROR DOMINGUEZ: Yes.

25 MR. TERRY: Okay. And can you explain

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000600 Volume 1

1 that, please?

2 PROSPECTIVE JUROR DOMINGUEZ: Just that I think there should be a chance that they could be given a reward; but I think it's possible to endure pain and suffering without having, like, an award that's entitled to you.

7 MR. TERRY: And maybe I chose the words poorly. If supported by the evidence -- 9 PROSPECTIVE JUROR DOMINGUEZ: Uh-huh.

10 MR. TERRY: I guess what you're telling me, even if it's supported by the evidence, someone might not be entitled to -- or get an award for pain and suffering, even if the evidence shows it?

14 PROSPECTIVE JUROR DOMINGUEZ: Well, you mean the evidence shows that they -- that they have suffered unfairly or -- 17 MR. TERRY: That they suffered pain and suffering, that they experienced pain and suffering.

19 PROSPECTIVE JUROR DOMINGUEZ: Sure. I mean, I just -- I think my problem is with the word "entitled" maybe.

22 MR. TERRY: Okay. Okay. And that's fine. So I guess what you're saying is there is the possibility that if the evidence would show it, not that they're entitled to it, but you could award it?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000601 Volume 1

1 PROSPECTIVE JUROR DOMINGUEZ: Sure.

2 MR. TERRY: Okay. The second row, I'll ask the same question with Ms. Dominguez's suggestion.

4 Please tell me who disagrees with this statement: That is, a person can be awarded money damages for pain and suffering if supported by the evidence. Who disagrees with that?

8 (No response.)

9 MR. TERRY: Nobody?

10 Second row over here (indicating).

11 Again, same -- same sentence. Who here on the second row would not be able to award money damages for pain and suffering even though it was supported by the evidence that was shown?

15 (No response.)

16 MR. TERRY: Okay. Thank you.

17 Finally, last row, Jurors 33 through 40, same sentence: If supported by the evidence, would you be able to award money damages for pain and suffering? Who disagrees with that statement?

21 (No response.)

22 MR. TERRY: Thank you.

23 Lastly, Jurors 41 through 48, again, same state -- same statement, would you be able to award money damages for pain and suffering or -- scratch that.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000602 Volume 1

1 I'm sorry.

2 The statement being, a person is entitled or should be awarded damages, money damages, for pain and suffering. Who disagrees with that statement?

6 (No response.)

7 MR. TERRY: Thank you.

8 Lastly, I want to talk to you a little bit about what's called punitive damages. And these are damages that are separate from the damages we will be seeking on behalf of Jenny Wagner. These are damages that are intended to, say, punish a company to deter or prevent the type of conduct which brought the initial lawsuit -- for example, in this case, to deter future fires, to try to prevent future fires.

16 Is there anyone here -- and we'll just say the first three rows over here (indicating): Is there anyone here who would not be able to award punitive damages even though supported by the evidence?

20 (No response.)

21 MR. TERRY: So everyone here would be able to -- if supported by the evidence, to award punitive damages; is that correct?

24 PROSPECTIVE JURORS: (As a group) Yes.

25 MR. TERRY: Over here (indicating),

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000603 Volume 1

1 same question: Is there anyone on these three rows who would not be able to award punitive damages even though supported by the evidence?

4 PROSPECTIVE JUROR 25: I just have a question.

6 MR. TERRY: Yes, ma'am. Juror 25?

7 PROSPECTIVE JUROR 25: I think so, yes.

8 MR. TERRY: Okay.

9 PROSPECTIVE JUROR 25: Certainly if the -- if the facts and circumstances rise to the level of the burden -- but when you're talking about punitive damages, is -- you're looking for those damages from the corporation as well as the individual?

14 MR. TERRY: Yes.

15 PROSPECTIVE JUROR 25: I would try to follow the law, obviously; but it would really depend on what those circumstances are and how much of that control was in the hands of the individual before I feel they should be punished.

20 MR. TERRY: Okay.

21 PROSPECTIVE JUROR 25: A corporation, I may hold to -- you know, not so much; but that individual is going -- it's really going to be based on the facts.

25 MR. TERRY: Okay. So going in, you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000604 Volume 1

1 would have trouble, at least just with the individual versus the corporation? I guess you would hold the individual to a higher standard?

4 PROSPECTIVE JUROR 25: I would really try to follow the law; but honestly, you know, I -- it's so hard with what you're giving us. And some of the things that we've talked about -- you know, yeah, I think CEOs and corporations should be responsible. But what are the acts? Were the acts within the delegation of duties to other people, or were they unforeseen?

11 What -- so I would have a hard time maybe, and I'm -- and I really mean that based on the facts -- to punish an individual as opposed to the corporation, depending on what role that individual truly played and the knowledge and access and whatnot.

16 MR. TERRY: Okay.

17 PROSPECTIVE JUROR 25: Just trying to be fair.

19 MR. TERRY: No. And I greatly appreciate that, I really do.

21 Had a question over here (indicating), Juror Number 33?

23 PROSPECTIVE JUROR 33: I pretty much feel the same way that she does, but the evidence would definitely have to support it.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000605 Volume 1

1 MR. TERRY: Okay. Now, do you also -- or do you hold, say, the individual to a kind of a higher standard or proof, I guess? You would require more evidence against the individual as opposed to the company?

6 PROSPECTIVE JUROR 33: Yes.

7 MR. TERRY: Okay.

8 PROSPECTIVE JUROR 12: I feel the same way, also.

10 MR. TERRY: Juror Number 12?

11 PROSPECTIVE JUROR 12: Yes.

12 MR. TERRY: Whatever you say.

13 Mr. Jones?

14 PROSPECTIVE JUROR JONES: Yes.

15 MR. TERRY: Okay. Okay. Who here -- 16 UNIDENTIFIED PROSPECTIVE JUROR: Hello.

17 MR. TERRY: There we go.

18 PROSPECTIVE JUROR 40: I feel the same way, also.

20 MR. TERRY: Number 40? Okay.

21 Let's just go ahead and just do it by the rows.

23 Anyone else agree with that statement -- with these individuals who say, yeah, we're going to hold the individual to kind of a higher, you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000606 Volume 1

1 know, standard of proof. We're going to make you, plaintiff, give us more evidence to prove that the individual is liable?

4 UNIDENTIFIED PROSPECTIVE JUROR: I think you'd have to add me to that group.

6 MR. TERRY: Okay. Hold your hands up for me, please, so I can get your numbers.

8 And that is -- let's see. Mr. Keats?

9 PROSPECTIVE JUROR KEATS: Yes.

10 MR. TERRY: Okay. And -- 11 PROSPECTIVE JUROR HILL: Mr. Hill.

12 MR. TERRY: Mr. Hill. Thank you.

13 Second row -- or I'm sorry. Ma'am, you would be Ms. Mowery?

15 PROSPECTIVE JUROR MOWERY: Yes.

16 MR. TERRY: Okay. Thank you.

17 Second row? Okay. Juror -- 18 PROSPECTIVE JUROR 20: 20.

19 MR. TERRY: Juror 20?

20 PROSPECTIVE JUROR 20: (Nods head.)

21 MR. TERRY: Thank you.

22 And Juror 17, thank you, ma'am.

23 And on the last row, one, two, three.

24 Got it. Thank you, guys.

25 I guess same question over on this

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000607 Volume 1

1 side: Who here would require the plaintiff to prove -- to show more evidence on punitive damages as opposed to proving the company was negligent? Do you understand that question? Okay.

5 In this section (indicating), Number 41. Okay.

7 Have some questions? Yes, ma'am.

8 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

9 Repeat that again, because to me it sounded like it was backwards.

11 MR. TERRY: Sure, and it probably was.

12 Basically the question is: Who would require us, as the plaintiffs, to show more evidence as to punitive damages as against the individual than the company?

16 (Hands raised.)

17 MR. TERRY: Yes, sir.

18 UNIDENTIFIED PROSPECTIVE JUROR: We do have folks that -- well, maybe the law will explain what is meant by punitive damages.

21 MR. TERRY: I'm sorry, sir?

22 UNIDENTIFIED PROSPECTIVE JUROR: There are a few folks, sir, that are not familiar with the word of law. Please explain what is meant.

25 MR. TERRY: Okay. Again, punitive

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000608 Volume 1

1 damages are those damages that are separate and apart from what we were seeking on behalf of Jenny Wagner, who was burned in the fire. Punitive damages are those damages which are intended to go against the defendants in this case to deter the type of conduct which brought on the basis for this lawsuit -- i.e., the fire that occurred.

8 We're saying it could have been prevented; and we'd like to deter that, basically. That is punitive damages in a nutshell.

11 Any further questions in that regard?

12 After I've provided that explanation, has anyone changed their mind as to the question I asked?

15 (No response.)

16 MR. TERRY: Guys, that's all I have for you right now. Again, we really appreciate you being here. As a jury, you have the power to take children away from their parents, as a jury you have the power to put people to death. Here you have the power to do what's just and right, and we appreciate it. Thank you.

22 THE COURT: Mr. Sparks?

23 MR. SPARKS: Thank you, Judge.

24 VOIR DIRE BY THE INTERVENOR 25 MR. SPARKS: Your Honor, counsel,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000609 Volume 1

1 ladies and gentlemen, good morning. How are y'all doing?

3 PROSPECTIVE JURORS: (As a group) Good morning.

5 MR. SPARKS: I'm Shelton Sparks; and we represent Derrick James, who is the heir to Tanya James.

7 And Tanya James is not here and she won't be. She died in the fire. Wylette Taylor is the guardian for Derrick James because he has special needs, and he won't be here at all. But this photo back here is a photo of Tanya James, and we represent the heir to her in reference to the pain and suffering she endured prior to her dying.

14 Couple of questions... Mr. Terry did a good job, but there were some people that indicated they knew some of the people involved. I just want to get an understanding of some of those relationships before we go forward.

19 I think -- is it Juror Number 6, Ms. Soto?

21 PROSPECTIVE JUROR SOTO: Uh-huh.

22 MR. SPARKS: You indicated you knew Mr. Plummer: Is that right?

24 PROSPECTIVE JUROR SOTO: Yes, yes.

25 MR. SPARKS: Now, would it be fair, in

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000610 Volume 1

1 your opinion, to sit on this jury to make a determination about the liabilities and responsibilities and accountabilities of somebody else that he's representing, having previously represented you? Do you think that would be fair?

6 PROSPECTIVE JUROR SOTO: (Nods head.)

7 MR. SPARKS: You could sit that relationship aside you've had with Mr. Plummer previously and, if you were on this jury, render a verdict based on the evidence and nothing else?

11 PROSPECTIVE JUROR SOTO: I believe so. 12 MR. SPARKS: You think you can?

13 PROSPECTIVE JUROR SOTO: (Nods head.)

14 MR. SPARKS: We have your word on that?

15 PROSPECTIVE JUROR SOTO: Uh-huh.

16 MR. SPARKS: And there was another young lady. And I'm kind of bad with the names, and we've kind of got you guys numbered. I think you're Number 10?

20 PROSPECTIVE JUROR RODRIGUEZ: Yes, sir.

21 MR. SPARKS: Could you help me, please?

22 What's your name?

23 PROSPECTIVE JUROR RODRIGUEZ: Frances Rodriguez.

25 MR. SPARKS: Ms. Rodriguez, how are you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000611 Volume 1

1 today?

2 PROSPECTIVE JUROR RODRIGUEZ: Fine.

3 MR. SPARKS: Not going into the nature and depth of the relationship you had with Mr. Plummer when he represented you. You indicated, I thought, that it may have been within the past couple of years?

7 PROSPECTIVE JUROR RODRIGUEZ: Uh-huh.

8 MR. SPARKS: Do you think, if you were to sit on this jury, having had that experience with him being your lawyer and him representing other clients, that you could be a fair representation [sic] to listen to the evidence and make a determination based on it and only it and nothing about your prior relationship with him?

15 PROSPECTIVE JUROR RODRIGUEZ: No, I don't think so, because -- which is going to make it fair, you know.

18 MR. SPARKS: And that's what we want.

19 PROSPECTIVE JUROR RODRIGUEZ: And it's two separate things.

21 MR. SPARKS: Okay.

22 PROSPECTIVE JUROR RODRIGUEZ: It's not personal in each way -- 24 THE COURT: Can you speak up, ma'am?

25 PROSPECTIVE JUROR RODRIGUEZ: It's not

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000612 Volume 1

1 personal on each way. It's just like, you know, trial.

2 MR. SPARKS: Yeah.

3 PROSPECTIVE JUROR RODRIGUEZ: I mean, you know, I -- it's just like my business, you know. My employees are -- if they're relatives, they're my employees, nothing personal there. So we're just -- 7 MR. SPARKS: Right.

8 So you don't think you would be a fair representation to sit on this panel; is that correct?

10 PROSPECTIVE JUROR RODRIGUEZ: It would be okay.

12 MR. SPARKS: Thank you very much, ma'am. Appreciate that.

14 Was there another person that indicated they knew Mr. Plummer besides Juror Number 46?

16 How are you doing, Judge?

17 UNIDENTIFIED PROSPECTIVE JUROR: Terrific. How are you?

19 MR. SPARKS: Fine, ma'am.

20 Anybody else?

21 There was another -- I believe a lady indicated she went to church with Mr. Thweatt; is that correct?

24 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

25 MR. SPARKS: Let me ask you, ma'am:

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000613 Volume 1

1 Not getting into how frequently he comes to church, anything about that relationship, if you were to sit on this panel, you think would cause you to be more fair to the side that Mr. Thweatt is on versus the side that Mr. Plummer represents?

6 UNIDENTIFIED PROSPECTIVE JUROR: No. I don't know Mr. Thweatt. I just recognize him.

8 MR. SPARKS: Okay. Okay. So that would have no bearing whatsoever in your deliberations on the evidence.

11 UNIDENTIFIED PROSPECTIVE JUROR: Not at all.

13 MR. SPARKS: Is that correct?

14 UNIDENTIFIED PROSPECTIVE JUROR: That's correct.

16 MR. SPARKS: Okay. Thank you very much.

18 There was -- oh, Juror 26, how are you doing?

20 PROSPECTIVE JUROR 26: I'm fine.

21 MR. SPARKS: Good, good. I saw you shaking your head, nodding; and I wasn't certain if it was in reference to the comments that was made by the young lady next to you, Juror 25, or one of the other jurors.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000614 Volume 1

1 Do you recall when you did that at all?

2 PROSPECTIVE JUROR 26: I know I did earlier when we were talking; but, I mean, I think it's really hard to take sides either way until the evidence is presented to me -- 6 MR. SPARKS: Yes, ma'am.

7 PROSPECTIVE JUROR 26: -- in my opinion. So -- 9 MR. SPARKS: So your statement is although you were agreeing on some things and maybe not necessarily on the others -- 12 PROSPECTIVE JUROR 26: Yes, sir.

13 MR. SPARKS: -- you're the type of person that you wouldn't make a decision -- 15 PROSPECTIVE JUROR 26: Exactly.

16 MR. SPARKS: -- about any of the facts in this case until you heard all evidence; is that correct?

19 PROSPECTIVE JUROR 26: Exactly, exactly.

21 MR. SPARKS: And that's basically what we're kind of looking for this morning.

23 Juror Number 5. Is it Mr. Keats?

24 PROSPECTIVE JUROR KEATS: Keats, yes.

25 MR. SPARKS: How are you, sir?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000615 Volume 1

1 PROSPECTIVE JUROR KEATS: How are you doing? Fine.

3 MR. SPARKS: Good morning to you.

4 You had some comments about corporate responsibility, I guess. Is that a fair assessment?

6 PROSPECTIVE JUROR KEATS: Not exactly, no. 8 MR. SPARKS: Share with me what you had some concerns about in reference to Mr. Terry's talking about the corporation -- 11 PROSPECTIVE JUROR KEATS: As far as -- you know, it's easy to accuse and then find enough evidence maybe to get some jury to make a big award and strip someone of their assets in spite of the fact they may not really have had much to do, although they're -- it's under their purview and responsibility as a CEO or whatever, they -- you know, purging them -- if you hurt their corporation, they're going to get hurt anyway.

19 There are ways of punishing people, but I don't believe you should go after their personal assets unless you can truly show there's a higher burden of proof they really were complicit in bringing about the -- whatever evil the corporation has supposedly committed.

25 MR. SPARKS: The law says there are

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000616 Volume 1

1 situations that may allow it and situations that may not. If, in fact, you sat on this jury panel and we were to prove to you the situation that did allow it, do you think you could follow the law in that regard or your feelings and your values wouldn't allow you to do that?

7 PROSPECTIVE JUROR KEATS: If you're talking about going after somebody personally for something they -- without having to prove that they really and truly were on board and knew what was going on -- is that what you're saying?

12 MR. SPARKS: No, that's not what I'm saying. What I'm saying is, and what we're saying: People can do business in various forms in our society.

15 Some people can set up a corporation and that corporation acts as an entity but it's run by people.

17 And if the corporation acts up, there are provisions in the law that allow the corporation to be held accountable and the person who ran it.

20 And if, in fact, we prove that both the corporation was at fault and the owner of the corporation, by law, was also deemed to be at fault, then you could hold both of them accountable.

24 PROSPECTIVE JUROR KEATS: I could, yeah. I mean, I don't think you should be able to act

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000617 Volume 1

1 irresponsibly and in an antisocial manner through your corporation -- 3 MR. SPARKS: Okay.

4 PROSPECTIVE JUROR KEATS: -- if that's your intent. But you really have to show me that the -- I mean, how many corporations are just sort of a -- an entity that, perhaps, somebody controls that doesn't know that much about or they just, you know, started it to buy their insurance for their fleet of cars or whatever or a management company to -- 11 MR. SPARKS: Yes, sir.

12 PROSPECTIVE JUROR KEATS: -- put a little layer of -- 14 MR. SPARKS: And I don't mean to cut you off, but the gentleman sitting next to you -- is it Mr. Hill?

17 PROSPECTIVE JUROR HILL: Right.

18 MR. SPARKS: How are you, sir?

19 PROSPECTIVE JUROR HILL: All right.

20 MR. SPARKS: Good. When Mr. Keats was speaking up earlier, you kind of raised your hand on some things. Are you in agreement with what he says?

23 PROSPECTIVE JUROR HILL: I kind of believe that you're going to have to prove that that person was incompetent enough to not know what was going

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000618 Volume 1

1 on because I'm going to say the man that's supposed to be running the show better know what's going on.

3 And if he's saying he's incompetent and he didn't know, then you're not going to punish him.

5 I'm sorry.

6 MR. SPARKS: All right. Let me see a show of hands on the front row who adheres to the statement made by Mr. Hill.

9 (Hands raised.)

10 MR. SPARKS: You're Ms. -- Juror Number 1?

12 PROSPECTIVE JUROR 1: Yeah.

13 MR. SPARKS: How are you doing today?

14 You agree with that assessment?

15 PROSPECTIVE JUROR 1: Yes.

16 MR. SPARKS: Any other hands on row number one? What about row number two?

18 UNIDENTIFIED PROSPECTIVE JUROR: I'm sorry. I -- could you repeat it? I think I've gotten confused.

21 UNIDENTIFIED PROSPECTIVE JUROR: Thank you.

23 UNIDENTIFIED PROSPECTIVE JUROR: Yeah.

24 MR. SPARKS: Well, I was asking did you agree with the statement made by Mr. Hill, who was

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000619 Volume 1

1 saying that -- if I may paraphrase him -- that it had to be a lot of proof showing to him that the person running the show, the corporation, didn't know what was going on?

5 UNIDENTIFIED PROSPECTIVE JUROR: That's right.

7 MR. SPARKS: And if they were incompetent, he would think that something was wrong with them and he would think -- he would hold them liable for their actions of their company.

11 UNIDENTIFIED PROSPECTIVE JUROR: I agree with that.

13 MR. SPARKS: You agree with that? Can I get your number?

15 PROSPECTIVE JUROR 20: Number 20.

16 MR. SPARKS: Number 20?

17 All right. What about you, sir, Mr. -- Mr. -- Juror Number 19, Mr. Talton?

19 PROSPECTIVE JUROR TALTON: Right. I agree with that.

21 MR. SPARKS: You agree with that?

22 PROSPECTIVE JUROR TALTON: Yeah.

23 MR. SPARKS: What about you, Mr. -- Juror Number 18. I can't read my own handwriting here.

25 How are you doing, sir?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000620 Volume 1

1 PROSPECTIVE JUROR 18: The person that died was a kid?

3 MR. SPARKS: No, sir. It was a -- she was a woman. She also had special needs, and she was an adult.

6 The child is her heir and is bringing this cause of action on her behalf, and he is unable to be here because of his disabilities. And his court-appointed guardian is here on his behalf.

10 PROSPECTIVE JUROR 18: Well, when they got burned, was any of them -- was it a kid? Was it a child that got burned?

13 MR. SPARKS: No, sir.

14 PROSPECTIVE JUROR 18: They were both adults?

16 MR. SPARKS: They were chronologically adults. However, based upon the psychological problems that they had, they didn't have the ability, like you and I, to be able to function and do some of the things that we do. And they were in special -- in a special care situation.

22 How does that make a difference in your mind?

24 PROSPECTIVE JUROR 18: Well, I mean, just a kid dying, you know, getting burned up, kind of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000621 Volume 1

1 horrible. An adult dying and getting burned up is kind of horrible, too, you know; and I think it's just bad.

3 It's a bad thing. I was just wondering if they were -- if they were kids, that's all, because the way that young man over there was sounding made it sound like they were children.

7 MR. SPARKS: Yes, sir. Yes, sir. No. These -- these were adults.

9 What about on the third row?

10 Mr. Jones?

11 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

12 MR. SPARKS: You believe -- you think like Mr. Hill? Mr. Hill's right here in the front row -- 15 UNIDENTIFIED PROSPECTIVE JUROR: Yeah, yeah, right.

17 MR. SPARKS: -- saying that the company, the business -- he would hold them to a higher standard.

20 UNIDENTIFIED PROSPECTIVE JUROR: Yes, sir.

22 MR. SPARKS: All right. Mr. Jones, Number 12, how are you, sir?

24 PROSPECTIVE JUROR JONES: I'm fine.

25 MR. SPARKS: Good, good. On some of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000622 Volume 1

1 the -- the background information we get, we get a chance to look at it and kind of surmise the experts and -- I mean, not the experts -- but the experiences that those individuals had in life and some of the -- the relationships they had and what they do on a day-to-day basis and how they may bring that information to the jury pool if so selected. It's sort of like bringing spices to a gumbo, kind of put everybody's in there and come up with something very good. And that would be the jury, hopefully get a verdict based on that.

12 Based on your information, we didn't get one of our ingredients; and I wanted to ask you -- you had down, I think, that you're an inspector?

15 PROSPECTIVE JUROR JONES: Yes, sir.

16 MR. SPARKS: Is that right?

17 PROSPECTIVE JUROR JONES: Uh-huh.

18 MR. SPARKS: What do you inspect, if I may ask?

20 PROSPECTIVE JUROR JONES: I'm on 24-hour call. Whenever there's a big fire in the city, I'm, like, one of the -- I'm the first one to go in.

23 MR. SPARKS: Okay. So you work with the fire department?

25 PROSPECTIVE JUROR JONES: Correct.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000623 Volume 1

1 MR. SPARKS: Okay. Are you employed through the City of Houston?

3 PROSPECTIVE JUROR JONES: I am.

4 MR. SPARKS: Okay. All right. What are -- what are your thoughts in terms of corporate responsibility?

7 PROSPECTIVE JUROR JONES: Well, I agree with Mr. Hill. I mean, if there's a responsibility higher up, it would have to really be shown beyond a shadow of a doubt that he was aware of it, to make sure -- especially if you're going after him personally.

12 But if it can't be proved, I believe it would be the corporation, in my opinion.

14 MR. SPARKS: Now, you said something about a shadow of a doubt. That's another burden of proof that we like to talk about.

17 Now, the judge indicated all we're held to is preponderance of the evidence over here in a civil matter. Shadow of a doubt, beyond a reasonable doubt, that's more of a criminal standard that's applicable across the street. Okay?

22 PROSPECTIVE JUROR JONES: Do you think it would be criminal if he allowed it to happen?

24 MR. SPARKS: Well -- 25 THE COURT: This is not a criminal

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000624 Volume 1

1 case. This is a court that handles civil lawsuits, and so we're addressing the civil lawsuit that was filed in this matter.

4 PROSPECTIVE JUROR JONES: Okay.

5 MR. SPARKS: And that kind of goes back to, I think, what Ms. -- Juror Number 10, Ms. Rodriguez [sic].

8 PROSPECTIVE JUROR DOMINGUEZ: Dominguez.

10 MR. SPARKS: Ms. Dominguez?

11 PROSPECTIVE JUROR DOMINGUEZ: Yes.

12 MR. SPARKS: -- was saying about entitlement. You know, she kind of had a problem with entitlement.

15 And it's not necessarily that people are entitled to something. It's just that the law provides that if you're injured as a result of someone else's negligence and you so find as a jury that that person should be awarded something to reimburse them, to make them whole, then you can make that determination.

21 An entitlement is not something that they're entitled to. However, you have the power to make an award based upon the evidence that you find to what degree they were damaged, injured, hurt, harmed in any kind of way.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000625 Volume 1

1 Juror 25, yes, ma'am, you were asking some questions about punitive damages?

3 PROSPECTIVE JUROR 25: Uh-huh.

4 MR. SPARKS: All right. Is there anything in your professional relationship, cases you've worked on, that would cause you to be a little bit more -- well, not a little bit more; but would cause you to take those relationships into the facts of this case if you were to sit on this jury panel?

10 PROSPECTIVE JUROR 25: I'm not sure I'm following your question.

12 MR. SPARKS: Can I rephrase it?

13 PROSPECTIVE JUROR 25: Please.

14 MR. SPARKS: You're an attorney, right?

15 PROSPECTIVE JUROR 25: Yes.

16 MR. SPARKS: Okay. So you've worked on cases through your profession. Fair assessment?

18 PROSPECTIVE JUROR 25: Predominantly criminal cases.

20 MR. SPARKS: Anything about those relationships with plaintiff or defendant, not knowing what side of the bar you're on, that would cause you to be -- would cause you to have a predisposition toward the relationship on this case, if and so [sic] you were on this panel?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000626 Volume 1

1 PROSPECTIVE JUROR 25: Honestly, I probably have predispositions; but I respect the law.

3 So I would do my best to follow the instructions of the judge. I do have opinions.

5 My background being criminal, I understand the differences in the burdens of proof, punitive damages. As mentioned before, that might be my -- for the individual, might be where I really have to adhere to the letter of the law and the judge's instructions because I -- you know, my heart is already sad for what happened. But at the same time, that punishment segment for the individual, knowing that it's an incorporated -- knowing that it's a corporation, I would definitely listen to the facts. I would need the facts, I'd need the patterns, I would need to know what happened, how it happened, but I would do my best, obviously, to follow the law.

18 But as far as -- you know, when it comes to punitive -- 20 MR. SPARKS: You're struggling?

21 PROSPECTIVE JUROR 25: Through my practice and my life, I try to be very fair and reasonable; but I'm not going to deny that I'm opinionated.

25 I don't know that it would be a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000627 Volume 1

1 struggle. It's sort of a conflict, but I would defer to the law. I mean, I took oaths to uphold the law.

3 MR. SPARKS: That's important.

4 Everybody in here who's got an opinion, just raise your hand.

6 (Hands raised.)

7 MR. SPARKS: All right. And that's okay. We don't -- we don't expect you guys to come in here and just leave your opinions and your life experiences and your -- your -- your expertises at the door.

12 All we want you to do is say, based on those relationships, would I be a fair person to sit on this case, in this particular court, on this particular day.

16 And if you can be, we welcome you. But if you can't be, just tell us because it's not personal.

18 We're not everything for everybody. This may not be the one for you because if your experiences would cause you to lean for us, that would probably be unfair to them.

21 And if it would cause you to lean for them, certainly that would be unfair for us, right? All we want is fairness.

24 And what we're doing right now is trying to figure out who could be and who couldn't be.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000628 Volume 1

1 THE COURT: You have five minutes.

2 MR. SPARKS: Thank you, Your Honor.

3 So having said all that, anybody here think this case wouldn't be good for them? Raise your hand.

6 (Hands raised.)

7 MR. SPARKS: You don't think it would be a good one for you, sir?

9 PROSPECTIVE JUROR 12: Yes, sir. I'm in a situation right now with my brother-in-law; he's in a special needs home and having some problems.

12 MR. SPARKS: You're Number 12, sir?

13 PROSPECTIVE JUROR 12: Yes, sir.

14 MR. SPARKS: Okay. And what about you, Mr. McCraw, is it?

16 PROSPECTIVE JUROR MCCRAW: I just think I'm a little too bias -- I mean, honestly, I think I'm a little too bias to even serve on a civil jury.

19 MR. SPARKS: Okay.

20 PROSPECTIVE JUROR MCCRAW: Criminal courts, no problem; but I have a -- I'm predispositioned to... just like the whole rigamarole with award, blame, and -- 24 MR. SPARKS: Okay.

25 PROSPECTIVE JUROR MCCRAW: -- you know,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000629 Volume 1

1 I'm -- I could apply the reasonable doubt and the law, but the civil stuff really gets me going.

3 MR. SPARKS: And you were shaking your head, Juror 25. Is that how you feel, too?

5 PROSPECTIVE JUROR 25: Because -- 6 MR. SPARKS: I just need a yes or no. I'm sorry. I don't have a lot of time. The judge has got me on a short leash right now.

9 PROSPECTIVE JUROR 25: Yeah. I'm pulled because it's such a sad case and because my heart breaks with the families. But going after an individual -- I'm stuck on the punitive.

13 MR. SPARKS: Okay. Don't get stuck there. Okay.

15 Anybody else? We have Number -- Number 9?

17 PROSPECTIVE JUROR 9: 9, yeah.

18 Being -- I'm retired from the Houston Fire Department now; but back then and seeing burnt people, you know, it's -- it would be hard -- 21 MR. SPARKS: Yes, sir.

22 PROSPECTIVE JUROR 9: -- to see that.

23 Being also -- I retired as one of the chief fire marshals, City of Houston. And so I guess I have a lot of questions to ask as far as, you know, codes and stuff

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000630 Volume 1

1 like that.

2 MR. SPARKS: Yes, sir.

3 PROSPECTIVE JUROR 9: And I just -- I would try to be as fair as I could be. That's all I could say.

6 MR. SPARKS: Thank you.

7 Yes, sir. Give me your number, please.

8 UNIDENTIFIED PROSPECTIVE JUROR: Yeah.

9 MR. SPARKS: I don't mean to cut you off, but I don't have all the names.

11 UNIDENTIFIED PROSPECTIVE JUROR: I understand.

13 THE COURT: What's your Juror Number, sir?

15 PROSPECTIVE JUROR 30: 30.

16 MR. SPARKS: 30?

17 PROSPECTIVE JUROR 30: 30.

18 MR. SPARKS: I'm sorry. Go ahead.

19 PROSPECTIVE JUROR 30: Your aspect [sic] between corporate and an individual responsibility does not quite sit well with me. 22 MR. SPARKS: All right. Thank you.

23 PROSPECTIVE JUROR 30: Okay.

24 MR. SPARKS: Yes, sir. What's your Juror Number?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000631 Volume 1

1 PROSPECTIVE JUROR 21: 21. I'd be very biased on this, as well.

3 MR. SPARKS: Did you say 21?

4 PROSPECTIVE JUROR 21: Yes, sir.

5 MR. SPARKS: Okay. Was -- with regard to -- what would biases be, if I may ask?

7 PROSPECTIVE JUROR 21: Just with the burn victims.

9 MR. SPARKS: Okay. Okay.

10 Yes, ma'am. Give me your number. I can't -- 12 PROSPECTIVE JUROR 36: I think I'm 29.

13 MR. SPARKS: 29? You're that young?

14 PROSPECTIVE JUROR 36: I wish I was.

15 MR. SPARKS: All right. 26?

16 PROSPECTIVE JUROR 36: 26.

17 THE COURT: No. I think you're 36, ma'am.

19 MR. SPARKS: I like 29. Go ahead.

20 Tell me your -- 21 PROSPECTIVE JUROR 36: I guess my issue is I'm a professor of business and I teach business ethics, as well as management. So I have very set -- 24 MR. SPARKS: Yes, ma'am.

25 PROSPECTIVE JUROR 36: -- ideas on

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000632 Volume 1

1 things.

2 MR. SPARKS: I didn't hear the last part. I'm sorry.

4 PROSPECTIVE JUROR 36: I just said, I teach business ethics and I teach management and I'm pretty bias -- 7 MR. SPARKS: Yes, ma'am.

8 PROSPECTIVE JUROR 36: -- towards my -- what I know.

10 MR. SPARKS: Well, being bias toward what you know may not be bad. What about being bias towards one of us?

13 PROSPECTIVE JUROR 36: I'd probably be bias toward the victim because I'm a firm believer in corporate responsibility. And it doesn't matter who did the crime; you're still responsible as the CEO.

17 MR. SPARKS: Okay. Thank you.

18 UNIDENTIFIED PROSPECTIVE JUROR: Same bias.

20 MR. SPARKS: Same for you?

21 Anybody else on that back row believes like the professor?

23 Yes, ma'am. Tell me -- you're 29?

24 PROSPECTIVE JUROR 29: 29.

25 MR. SPARKS: You're 29?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000633 Volume 1

1 PROSPECTIVE JUROR 29: I'm 29.

2 MR. SPARKS: You're 29. Okay. Ms. 29, how are you doing?

4 PROSPECTIVE JUROR 29: I could be bias because I worked 13 years with special needs and handicapped children.

7 MR. SPARKS: Yes, ma'am. Okay.

8 Now, I thought I saw some folks that worked in physical therapy and stuff, a lot more so than we normally get. Raise your hands and give me your number.

12 (Hands raised.)

13 MR. SPARKS: Number 1?

14 PROSPECTIVE JUROR 24: 24.

15 MR. SPARKS: 24?

16 Anybody else?

17 What's your number, ma'am?

18 PROSPECTIVE JUROR 16: 16, I think.

19 MR. SPARKS: 16.

20 And I thought there was somebody else.

21 Let me ask you: Is it Ms. Biller [sic]?

23 PROSPECTIVE JUROR BILLINGS: Billings.

24 MR. SPARKS: Billings? I'm sorry.

25 PROSPECTIVE JUROR BILLINGS: Yes, sir.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000634 Volume 1

1 MR. SPARKS: Your relationship in physical therapy, would it cause you to bring one thought process versus another if you were to sit on this panel?

5 PROSPECTIVE JUROR BILLINGS: I work with Alzheimer's patients, and so I possibly -- because I would fight for them. And I think if I feel that they did something, I might be more swayed towards...

9 MR. SPARKS: Well, let me ask you this question: Can you set aside your relationships with your professional life to listen and make a determination just based on the facts that are presented here today?

14 PROSPECTIVE JUROR BILLINGS: Sure, yes.

15 MR. SPARKS: Is that a "yes"?

16 PROSPECTIVE JUROR BILLINGS: Yes.

17 MR. SPARKS: Not a wobbly yes, but yes?

18 PROSPECTIVE JUROR BILLINGS: Yes.

19 MR. SPARKS: All right. Thank you so much.

21 THE COURT: You need to wrap it up.

22 MR. SPARKS: All right. Number 24, your thoughts?

24 PROSPECTIVE JUROR 24: I do home health; and I do occasionally see patients that are in,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000635 Volume 1

1 like, group homes. And I'm not sure I can -- 2 MR. SPARKS: You don't think you'd be a good juror on this panel based on that experience?

4 PROSPECTIVE JUROR 24: Huh-uh.

5 MR. SPARKS: All right. Thank you very much.

7 The judge has reigned me in, ladies and gentlemen. I really appreciate having this opportunity to speak with you. I may not get another one as we go throughout the trial, but we really appreciate you coming down. You do our system a great service, and we can't thank you enough.

13 THE COURT: Mr. Plummer.

14 Mr. PLUMMER: Thank you, Your Honor.

15 VOIR DIRE BY THE DEFENSE 16 MR. PLUMMER: Gentlemen, ladies and gentlemen of the jury panel, I want to welcome you-all here; and I thank you for the opportunity today to visit with you, to talk about your feelings and attitudes about this case.

21 Your Honor, can we have the screen down?

23 THE COURT: Yes.

24 MR. PLUMMER: Again, my name is Jim Plummer. I practice law here in Harris County. And

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000636 Volume 1

1 I'm going to give a little bit to you about this lawsuit and about the process and ask you some questions about your feelings about this process. Okay?

4 First of all, Ms. Wagner here is the parent of Jenny Wagner and is here as the plaintiff in this lawsuit and -- along with Ms. Taylor here, who is the representative of her nephew, I believe, who was the son of Ms. James, who died in the fire.

9 I represent -- we represent Four J's Community Living Center, which is a center -- part of a center that provides a residential group home for folks with various kinds of disabilities, mental retardation and physical disabilities.

14 Everybody understand that?

15 They are regulated and governed by various State agencies, and they are part of the DADS program which is the -- I always forget -- it's the Department of Aging and Disability program.

19 Anybody here familiar with DADS?

20 (Hands raised.)

21 MR. PLUMMER: Okay. Anybody else?

22 The CEO and the owner of Four J's Community Living Center is a lady by the name of Anthonia Uduma. Anybody know Ms. Uduma?

25 (No response.)

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000637 Volume 1

1 MR. PLUMMER: Okay. Before I go any further, let me tell you what my perfect jury would be: My perfect jury would be 12 guys who played on the basketball team with me in high school because I believe that they would respect me and respect what I do and respect my -- my client and decide issues in my favor.

7 It's the perfect jury.

8 But un -- but fortunately, the process doesn't work that way. The process requires that we get 12 of you citizens, ordinary citizens, who bring your common sense and your own experience to bear, listen to the evidence, and then decide based on that evidence and the question that the Court's going to give you at the end of this.

15 Does everybody understand that's going to be the role of the jurors in this matter? Everybody understand that?

18 PROSPECTIVE JURORS: (As a group) Yes.

19 MR. PLUMMER: All right. So I have to ask you some questions to -- to judge and gauge your -- whether you're qualified or whether or not you're the right person to sit on this jury. Okay?

23 The first thing -- let me have the first slide, please.

25 The first thing -- question I want to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000638 Volume 1

1 ask everybody is: Ms. Uduma is not present here now, and part of the reason she's not present here is I want candid responses from you-all without being influenced by who the -- the party is or the person is or how they look or that sort of thing.

6 For example, Jenny's not here today.

7 Jenny Wagner's not here today.

8 Anybody going to hold it against Ms. Uduma, if they were picked as a juror, if she is not here during this part of the jury selection process?

11 PROSPECTIVE JURORS: (As a group) No. 12 MR. PLUMMER: Okay. Okay. Okay.

13 Now, this lawsuit has been filed because of an absolute tragedy. Nobody in his right mind would think of this, the loss that was suffered, as anything other than a tragedy; and I want to put that tragedy in context.

18 There was a group home on Beretta Court in the southwest part of town that was owned by Ms. Uduma but run by Four J's Community Living Center.

21 It -- it was a four-person home. That meant that it could have four residents there, each of whom was either physically disabled or mentally retarded or had a variety of disabilities. Okay?

25 The routine -- and Four J's provided

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000639 Volume 1

1 24-hour care. That meant that they fixed meals for the clients or customers -- "clients," I think was the term they used, or "individuals" they used. They fixed meals for them. They took them to an activity center during the daytime where they had various kinds of therapy, they brought them home, and cooked dinner.

7 For those clients who needed the care of -- their personal care was taken care of, bathing and showering and things of that sort. Dinner was made.

10 They slept there, and the next day the routine would -- would reoccur where they got some activity.

13 Now, there's a philosophical reason in trying to integrate them -- these folks with disabilities into the community as best you can, but that's one of the reasons for the group home.

17 On September 4, 2008, the routine started. They went to the activity center. And at about 4 or 5 o'clock, they come back to [sic] the activity center to Beretta Court. Dinner was done. And at some point in time in the evening, one of the residents, one of the clients, Arzola -- Esperanza Arzola, lit a match, lit a lighter that she had hidden in her bra, in a bedroom and started a fire.

25 That fire consumed the house over a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000640 Volume 1

1 period of time. At the time of that fire, the caregiver who was there was a lady by the name of Amuche Udemezue.

3 Amuche Udemezue had been trained that when an emergency like a fire occurred, you get your weakest person out first, and you get those who are ambulatory, those who could walk on their own -- you shout to them and lead them out, but you want to get the weakest person out first.

9 Jenny Wagner was in that category. She couldn't walk. She had cerebral palsy. She was blind.

11 She needed to be carried out.

12 And Udemezue, on that day, panicked, didn't follow her training, and left two of the residents in the house. Jenny Wagner was burned significantly. Ms. James died.

16 Now, that's a quick overview of what happened that night.

18 I need to ask each of you-all: Is there anybody here, just on those facts, just on those facts, who would favor one side or the other in this particular lawsuit if they served as a juror?

22 UNIDENTIFIED PROSPECTIVE JUROR: Can I ask a question?

24 MR. PLUMMER: Yes, sir.

25 UNIDENTIFIED PROSPECTIVE JUROR: You

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000641 Volume 1

1 said there was four individuals, right? They were handicapped, right?

3 MR. PLUMMER: All of the residents, all of the clients, the consumers -- 5 UNIDENTIFIED PROSPECTIVE JUROR: Right.

6 MR. PLUMMER: -- were disabled.

7 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

8 MR. PLUMMER: But they had different levels of disability.

10 UNIDENTIFIED PROSPECTIVE JUROR: Got you there.

12 MR. PLUMMER: And then there was one staff person who was there who spent the night.

14 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

15 MR. PLUMMER: It was a 24-hour house; so they provided 24-hour care.

17 UNIDENTIFIED PROSPECTIVE JUROR: I guess my question is: You had one staff person to take care of all of them, right?

20 MR. PLUMMER: Correct.

21 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

22 MR. PLUMMER: And that was within the regulations at that time. Okay?

24 PROSPECTIVE JUROR 13: Sir?

25 MR. PLUMMER: Yes, sir.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000642 Volume 1

1 PROSPECTIVE JUROR 13: Number 13.

2 MR. PLUMMER: Yes, sir.

3 PROSPECTIVE JUROR 13: When you first started speaking, I believe you said that Ms. Uduma -- 5 MR. PLUMMER: Uduma.

6 PROSPECTIVE JUROR 13: -- is the owner of the house -- 8 MR. PLUMMER: Correct.

9 PROSPECTIVE JUROR 13: -- and Four J's ran the service.

11 MR. PLUMMER: Correct.

12 PROSPECTIVE JUROR 13: Is she a part of Four J's or has an interest it?

14 MR. PLUMMER: Yes. She is the owner of Four J's.

16 PROSPECTIVE JUROR 13: Okay.

17 MR. PLUMMER: And she also has the -- owns the house but leases it to Four J's.

19 PROSPECTIVE JUROR 13: Okay.

20 MR. PLUMMER: By the way, would that create a problem for you?

22 PROSPECTIVE JUROR 13: No. I just wanted a clear understanding.

24 MR. PLUMMER: I'm sorry. Yeah, that's the relationship.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000643 Volume 1

1 PROSPECTIVE JUROR 13: Okay.

2 MR. PLUMMER: Okay? Anybody else?

3 (Hands raised.)

4 MR. PLUMMER: Yes, sir.

5 UNIDENTIFIED PROSPECTIVE JUROR: Were there smoke detectors in the home?

7 MR. PLUMMER: There were smoke detectors, there was a smoke alarm, there was a fire extinguisher and train -- and Ms. Udemezue had been trained and drilled on fire -- there were fire drills, there was training, and each resident had a safety plan, individual safety plan, where they talked about their limitations, what needs to be done in an emergency -- like a hurricane, flooding, bad weather, fire. All those things were in each resident's folder and were reviewed regularly and gone over regularly. Okay?

17 MR. SPARKS: Judge, may we approach?

18 THE COURT: Do you have an objection?

19 MR. SPARKS: I have a point I'd like to bring to the Court's attention.

21 THE COURT: Mr. Thweatt?

22 (Discussion at the bench without a court reporter.)

24 MR. PLUMMER: Yes, sir. Mr. -- you are Number 40?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000644 Volume 1

1 PROSPECTIVE JUROR 40: Yeah.

2 MR. PLUMMER: What is your name, please, sir?

4 PROSPECTIVE JUROR JONES: Charles Jones.

6 MR. PLUMMER: Mr. Jones, yes, sir.

7 PROSPECTIVE JUROR JONES: Shouldn't it be more than one person at night to control the situation on the basis of it's at night? Shouldn't it be more than one people -- well, that many people to get out of there if it's a fire hazard -- is one person going to get all these people out if it's a fire?

13 MR. PLUMMER: That's a legitimate question, and I think that's a legitimate inquiry. But the regulations were such that it was determined that one person, even under an emergency situation like a fire, could get all four residents out safely.

18 Now -- and let me add to that: The only one who couldn't ambulate by themselves was Jenny Wagner. Okay?

21 And the drills that were done, the fire drills that were done, showed that everybody could be evacuated within two minutes or three minutes or thereabouts.

25 PROSPECTIVE JUROR JONES: Well, that's

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000645 Volume 1

1 good during the daytime or at night or where people are sleeping or awakened to get out; or was it done when they was already awake?

4 MR. PLUMMER: Legitimate question. I think the evidence will show it was done at various times.

7 PROSPECTIVE JUROR JONES: Okay. But you didn't answer my question.

9 THE COURT: I think the answer, sir, right now is the members of the trial jury will have an opportunity to observe the exhibits and listen to the witnesses who are presented and will be able to evaluate the facts based on the evidence presented. Right now we're just in the process where we're talking about the jurors' views on certain things.

16 MR. PLUMMER: Yes, ma'am.

17 UNIDENTIFIED PROSPECTIVE JUROR: I'm not certain if this would bias me, but I don't think that panic is an excuse for not following the rules.

20 MR. PLUMMER: And if -- I'm not suggesting that it is, but I'm just trying to lay out that -- that portion of the facts so that you understand them. Okay?

24 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

25 MR. PLUMMER: Yes, ma'am. You are

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000646 Volume 1

1 Ms. DeLeon?

2 PROSPECTIVE JUROR DELEON: Yes.

3 How long had the attendant, the person that was in charge there that night -- how long had she been working for?

6 MR. PLUMMER: She had been working there for about a year, year and a half, as best I can recall; but you-all will get those facts.

9 PROSPECTIVE JUROR DELEON: Right. I didn't -- 11 MR. PLUMMER: That's not a problem.

12 The important thing I want to find out from you-all is: Just based on those facts -- tragic accident, as -- as someone said, saddens my heart.

15 Based on just those facts, is there anybody here who feels that the corporation or the owner of the house, for that matter, ought to be responsible, is legally liable? And if so I need to know it.

19 (Hands raised.)

20 MR. PLUMMER: Yes, ma'am.

21 UNIDENTIFIED PROSPECTIVE JUROR: I believe they're liable.

23 MR. PLUMMER: Okay. Number 34?

24 UNIDENTIFIED PROSPECTIVE JUROR: Hmm, I think.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000647 Volume 1

1 UNIDENTIFIED PROSPECTIVE JUROR: No, she's 36.

3 THE COURT: She's 36, Mr. Plummer.

4 PROSPECTIVE JUROR 36: I'm 36.

5 MR. PLUMMER: Okay. Okay. Anybody here who, in addition to -- is it Hilburn?

7 PROSPECTIVE JUROR HILBURN: It is.

8 MR. PLUMMER: Anybody here who -- on this side of the room (indicating) shares Mrs. Hilburn's views?

11 PROSPECTIVE JUROR HILL: I do now.

12 MR. PLUMMER: Mr. Hill?

13 PROSPECTIVE JUROR HILL: Yeah.

14 MR. PLUMMER: Okay. And is that Mr. -- is that Mr. Keats, also?

16 PROSPECTIVE JUROR KEATS: Yeah. I believe they're liable.

18 MR. PLUMMER: Beg your pardon?

19 PROSPECTIVE JUROR KEATS: When you walk on the premises, the people that own the premises are liable. Is that not true?

22 MR. PLUMMER: No, it's not.

23 PROSPECTIVE JUROR KEATS: Oh, okay.

24 MR. PLUMMER: But, I mean, you're entitled to that view. You're entitled to that view.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000648 Volume 1

1 And so I want to know how many people feel like Mr. Hill and Mr. Keats and Mr. Dixon -- is it Mr. Dixon?

4 PROSPECTIVE JUROR DIXON: Yeah.

5 MR. PLUMMER: Okay. On the first row -- anybody else on the first row feel like those three gentlemen?

8 Second row?

9 (Hands raised.)

10 MR. PLUMMER: Yes, sir. You are?

11 PROSPECTIVE JUROR 23: 23.

12 MR. PLUMMER: 23? You are Mr. -- 13 PROSPECTIVE JUROR PAPE: Martin Pape, Pape.

15 MR. PLUMMER: Mr. Pape?

16 PROSPECTIVE JUROR PAPE: Yeah.

17 MR. PLUMMER: Anybody else other than Mr. Pape on the second row?

19 PROSPECTIVE JUROR TAFT: I'm number 20, Taft.

21 I'm not sure -- I suspect that the corporation -- I'm not sure. Was there a criminal proceeding of any sort?

24 MR. PLUMMER: Well, the person who started the -- the fire, Esperanza Arzola, is no longer

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000649 Volume 1

1 in a group home setting. I -- I probably -- I don't know if I can go any further than that at this point in time.

4 THE COURT: Ladies and gentlemen, all relevant evidence -- all evidence that's relevant to the facts or issues that are raised by this lawsuit will be admitted during the course of this trial.

8 I realize a lot of you are curious about a lot of details, but those of you who become members of the trial jury will have a chance to review the evidence that's presented by the parties that's relevant and admissible.

13 So to the extent -- if you feel like the lawyers aren't answering all your questions, just understand that right now that's not really the point of this part of the trial, about going into the specific details of the case or the evidence that will be presented. We're here really to evaluate certain issues surrounding jury selection.

20 MR. PLUMMER: Ms. Taft, thank you, ma'am.

22 Anybody else on the second row feel as Mr. Dixon and Mr. Hill feel on the first row?

24 (No response.)

25 MR. PLUMMER: And Mr. Pape.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000650 Volume 1

1 Third row?

2 UNIDENTIFIED PROSPECTIVE JUROR: Your Honor -- 4 MR. PLUMMER: Mr. Jones, you feel the same way?

6 PROSPECTIVE JUROR JONES: I do.

7 MR. PLUMMER: The mere fact that it was -- the house was owned by Ms. Uduma and the company provided the group home services, they're responsible regardless of what the law says?

11 PROSPECTIVE JUROR JONES: No, that's not what I'm saying.

13 MR. PLUMMER: Okay.

14 UNIDENTIFIED PROSPECTIVE JUROR: That's not what I said, either.

16 MR. PLUMMER: Okay.

17 UNIDENTIFIED PROSPECTIVE JUROR: Correct.

19 UNIDENTIFIED PROSPECTIVE JUROR: That's not what I said, either.

21 MR. PLUMMER: Okay.

22 UNIDENTIFIED PROSPECTIVE JUROR: I -- well, let me -- 24 UNIDENTIFIED PROSPECTIVE JUROR: Start over.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000651 Volume 1

1 MR. PLUMMER: I didn't intend to twist that around.

3 PROSPECTIVE JUROR HILL: You sure did.

4 MR. PLUMMER: Well, Mr. Hill, tell me what -- 6 PROSPECTIVE JUROR HILL: If I walk on your premises and it's your premises, it's a place of your business, you're going to keep it safe for me; and if it's isn't, you're liable, buddy.

10 MR. PLUMMER: Okay. And -- all right.

11 And is that everybody -- was that everybody else's viewpoint?

13 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

14 MR. PLUMMER: Pretty much Mr. Keys [sic]; is that right?

16 PROSPECTIVE JUROR KEATS: Yeah. I mean, if you hold yourself out to be capable of taking care of somebody, then I guess, if you don't, you have a liability.

20 MR. PLUMMER: Okay. Now, let me add something to that. There's going to be a dispute about whether or not the care and training was reasonable under the circumstances. Okay?

24 It's our view that the training and the care was proper and reasonable except that, when a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000652 Volume 1

1 crisis occurred, the employee who had been trained to act and protect these folks and get them out panicked and collapsed. Okay?

4 You understand that?

5 Now, under that circumstance, Mr. Keats, would you feel that the company remains liable, regardless?

8 PROSPECTIVE JUROR KEATS: No. I -- I mean, I -- 10 MR. PLUMMER: Mr. Dixon, do you feel that way? Mr. Hill?

12 PROSPECTIVE JUROR HILL: I do, yeah.

13 MR. PLUMMER: Mr. Keats?

14 UNIDENTIFIED PROSPECTIVE JUROR: You put it that way -- 16 PROSPECTIVE JUROR KEATS: You know, I'd have to hear more. I can't tell you.

18 MR. PLUMMER: Okay. And you are -- 19 PROSPECTIVE JUROR 21: 21.

20 MR. PLUMMER: Okay. 21, you are Mr. Tarr?

22 PROSPECTIVE JUROR 21: Correct.

23 MR. PLUMMER: All right. Mr. Pape, how do you feel about that?

25 PROSPECTIVE JUROR PAPE: And I agree.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000653 Volume 1

1 MR. PLUMMER: Okay. Ms. Tate -- yeah, Ms. Taft.

3 PROSPECTIVE JUROR TAFT: Okay. And I'm sorry?

5 MR. PLUMMER: Reasonable precautions were made to protect against harm and injury by fire -- training, alarm systems, things of that sort.

8 PROSPECTIVE JUROR TAFT: Uh-huh.

9 MR. PLUMMER: Okay? But the -- but the tragedy still occurred. Okay?

11 And one of the reasons the tragedy occurred is that the person who had been trained to address that issue panicked and -- and collapsed or fainted or what have you. Okay?

15 Under those circumstances, is the owner of the property or the company still responsible, in your eyes, regardless?

18 PROSPECTIVE JUROR TAFT: I think quite possibly, yes.

20 MR. PLUMMER: Okay.

21 PROSPECTIVE JUROR TAFT: And it depends on all of the circumstances.

23 MR. PLUMMER: Okay. I think it's -- you know, I -- we've had this 34 and 36 issue before.

25 You are Number 36 --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000654 Volume 1

1 PROSPECTIVE JUROR 36: I think I'm 36.

2 MR. PLUMMER: You're 36. Okay.

3 And you are nodding your head, Ms. Hilburn; is that right?

5 PROSPECTIVE JUROR HILBURN: Yeah.

6 MR. PLUMMER: You're in agreement with that?

8 PROSPECTIVE JUROR HILBURN: I would just probably agree that it's the corporation's responsibility.

11 MR. PLUMMER: And would you say that, from your perspective, Ms. Hilburn, that the corporation guarantees that safety and, if something happens, the corporation's responsible, regardless?

15 PROSPECTIVE JUROR HILBURN: Yes.

16 MR. PLUMMER: Okay. Now, just in front of you is a gentleman in the blue shirt. You were nodding your head.

19 You believe that the corporation guarantees your safety?

21 UNIDENTIFIED PROSPECTIVE JUROR: Right.

22 MR. PLUMMER: Okay. Tell me your name again.

24 PROSPECTIVE JUROR TARR: Last name's Tarr.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000655 Volume 1

1 MR. PLUMMER: Tarr, Mr. Tarr. Okay.

2 How many feel, on the first row, the same way Ms. Hilburn feels, on the first row?

4 (Hands raised.)

5 MR. PLUMMER: And, Mr. Hill, you feel that way?

7 PROSPECTIVE JUROR HILL: That a corporation's responsible, yes.

9 MR. PLUMMER: They guarantee your safety?

11 PROSPECTIVE JUROR HILL: I hope so. 12 MR. PLUMMER: Okay.

13 UNIDENTIFIED PROSPECTIVE JUROR: I'd agree.

15 MR. PLUMMER: Mr. Dixon?

16 PROSPECTIVE JUROR DIXON: Well, I don't -- I don't -- I can give a reason why I think they should be responsible, but it would -- I mean, I think they should be responsible. I'm not going to say guarantee your safety, but be responsible.

21 MR. PLUMMER: Well, they guarantee nothing will happen to you.

23 PROSPECTIVE JUROR DIXON: No. You can't guarantee that.

25 MR. PLUMMER: Okay. Mr. Keats?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000656 Volume 1

1 PROSPECTIVE JUROR KEATS: You can't guarantee nothing's going to happen.

3 MR. PLUMMER: Anybody else on the first row feel that way? Anybody on the second row feel that they guarantee your safety? Third row? Ms. Jones, okay.

7 I have denied -- have not intended to ignore this side of the room.

9 UNIDENTIFIED PROSPECTIVE JUROR: That's okay.

11 MR. PLUMMER: And I think what I'm going to try to do is to see if I can follow up on some of the statements made on the other side of the room and find out how you feel about those things.

15 And I'm going to ask Mr. Jones and the other gentleman who was a fire marshal to hold off for a moment, and I'm going to ignore you-all for just a moment. Okay?

19 UNIDENTIFIED PROSPECTIVE JUROR: Okay.

20 MR. PLUMMER: Anybody on the first row feel like Ms. Hilburn over here?

22 (Hands raised.)

23 MR. PLUMMER: Yes, ma'am.

24 UNIDENTIFIED PROSPECTIVE JUROR: I feel very strongly that corporations -- they set up their

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000657 Volume 1

1 policies and procedures to do all the right things.

2 They should be held liable -- even if they've done the right things, they should be held liable.

4 MR. PLUMMER: So they should be held liable, regardless?

6 UNIDENTIFIED PROSPECTIVE JUROR: Right.

7 MR. PLUMMER: Because the loss happened?

9 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

10 MR. PLUMMER: Now, the gentleman sitting behind you with the cap on, your name, again, sir?

13 PROSPECTIVE JUROR OLIVER: Oliver.

14 MR. PLUMMER: Mr. Oliver, what's your number, please, sir.

16 PROSPECTIVE JUROR OLIVER: I think it's 30.

18 MR. PLUMMER: Okay. Mr. Oliver, you feel like this young lady in front of you, right?

20 PROSPECTIVE JUROR OLIVER: Yes, I do.

21 I still believe that.

22 MR. PLUMMER: Okay. Okay. Regardless of the instructions the Court gives you, that's the way you feel, and that's the way you're going to approach this trial?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000658 Volume 1

1 PROSPECTIVE JUROR OLIVER: Of course.

2 MR. PLUMMER: Okay. Now, sitting next to you -- Rick, can you pronounce your last name for me?

4 PROSPECTIVE JUROR MANIVONG: Manivong.

5 MR. PLUMMER: Manivong?

6 PROSPECTIVE JUROR MANIVONG: Yes.

7 MR. PLUMMER: Do you feel the same way?

8 PROSPECTIVE JUROR MANIVONG: I feel the same way.

10 MR. PLUMMER: Okay. First row, beyond you, young lady, you two at the end; how do you-all feel about that?

13 UNIDENTIFIED PROSPECTIVE JUROR: I don't think that a corporation is necessarily liable for the actions of its employees. I mean, you set up, you try and do things, an individual does something, that's on the -- that's on the individual. If you have the policies in place, there's only so much you can do.

19 If we get into the trial, then I'll listen to the facts; and I'll make my decision based on that.

22 MR. PLUMMER: Okay. And you feel the same way?

24 UNIDENTIFIED PROSPECTIVE JUROR: I completely agree, yeah.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000659 Volume 1

1 MR. PLUMMER: Okay. You're a physical therapist, right?

3 UNIDENTIFIED PROSPECTIVE JUROR: Yeah.

4 PTA, Physical Therapist's Assistant.

5 MR. PLUMMER: And you deal with Alzheimer's patients; is that correct?

7 UNIDENTIFIED PROSPECTIVE JUROR: (Nods head.)

9 MR. PLUMMER: Okay. And you're trained on how to deal with them in various contexts; is that correct?

12 UNIDENTIFIED PROSPECTIVE JUROR: (Nods head.)

14 MR. PLUMMER: Okay. We'll come back to that in a second, I think.

16 Yes, sir. You had your had your hand up.

18 UNIDENTIFIED PROSPECTIVE JUROR: I do.

19 I agree with this gentleman. I think -- my take on it is that the company goes into their business with all intentions of doing everything correct or making all the reasonable efforts, then I'd have to hear the -- the facts.

24 MR. PLUMMER: Okay. Okay. Second row -- let's see. You know, I -- this chart is -- it's

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000660 Volume 1

1 hard to keep track with this chart when you're standing up here and you-all are answering these questions for me. 4 Ms. Schuman? And -- and the row that Ms. Schuman's on: Any here feel, other than the two gentlemen on the end, the same way as the two gentlemen on the end? That's a long question to say.

8 You feel -- it's a long question to say. I've forgotten what the original question was, but here it is: Do you feel that the corporation's responsible, regardless of what it did to prevent these sorts of things, if this tragedy occurred? Second row, anybody feel that way?

14 UNIDENTIFIED PROSPECTIVE JUROR: I have a question.

16 MR. PLUMMER: Yes, ma'am.

17 UNIDENTIFIED PROSPECTIVE JUROR: Didn't you say that the law is not necessarily that way, or that's not the -- 20 MR. PLUMMER: Let me -- let me -- let me correct -- let me correct that and say this -- this: The judge is going to instruct you as to what the law is. And -- and briefly, the issue's going to be whether or not there was negligence and the judge is going to instruct you what negligence is and he's going to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000661 Volume 1

1 instruct you on what proximate cause is. Okay?

2 And he's going to instruct you on the credibility of evidence and all those things, but the bottom line is: People come in with preconceived notions. And one of the preconceived notions, as we've already heard expressed -- and it's a legitimate notion.

7 I'm not being critical of it -- is that some people feel -- and I need to know if you feel this way, that if it happened on my watch, I'm responsible regardless of what I've done. Understand? Okay.

11 So I need to know on the second row, other than these two gentlemen down here, anybody feel that way?

14 (Hands raised.)

15 MR. PLUMMER: Yes, ma'am.

16 PROSPECTIVE JUROR 32: Based on what I've heard so far, I believe that the -- the corporation is responsible.

19 MR. PLUMMER: Okay.

20 PROSPECTIVE JUROR 32: Somebody has to be -- 22 MR. PLUMMER: Well -- 23 PROSPECTIVE JUROR 32: -- based on the information that I've heard so far.

25 MR. PLUMMER: Okay. And you are Juror

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000662 Volume 1

1 Number?

2 PROSPECTIVE JUROR 32: 32.

3 MR. PLUMMER: Last row, and I'm going to ask Judge Elrod if you'll -- you know, I don't need to ask you the -- the same questions -- same questions.

6 Anybody else feel that just because it happened on my watch, you've got to be responsible, legally responsible? Anybody feel that way or the company is legally responsible?

10 Now, I just heard Juror 32 say something that I want to ask you-all -- the rest of you-all about.

13 Now, Ms. Napoli?

14 PROSPECTIVE JUROR NAPOLI: Napoli.

15 MR. PLUMMER: Ms. Napoli said, somebody's got to be responsible.

17 Question: How many of you-all feel that when a tragedy like this occurs, somebody is legally responsible?

20 UNIDENTIFIED PROSPECTIVE JUROR: Oh, yeah.

22 MR. PLUMMER: This side, first row, Mr. Hill, Mr. Dixon, Ms. Keys -- Mr. Keats. Yes, ma'am.

24 And this is Ms. DeLeon?

25 PROSPECTIVE JUROR DELEON: Right.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000663 Volume 1

1 MR. PLUMMER: Okay. Second row, how many feel that way?

3 (Hands raised.)

4 MR. PLUMMER: You are Juror Number?

5 PROSPECTIVE JUROR 18: 18.

6 MR. PLUMMER: 18?

7 PROSPECTIVE JUROR 19: I'm 19.

8 MR. PLUMMER: 19?

9 PROSPECTIVE JUROR 19: I agree.

10 MR. PLUMMER: Mr. Pape. Okay.

11 PROSPECTIVE JUROR 20: 20.

12 MR. PLUMMER: Anybody else on the second row?

14 And -- and that's regardless of what the evidence is.

16 Last row, Mr. Jones, Ms. Hilburn?

17 PROSPECTIVE JUROR 38: 38.

18 MR. PLUMMER: 38? Ms. Dominguez, okay.

19 And I think there was another hand down there. Yes, Juror Number 34.

21 PROSPECTIVE JUROR CORREA: Correct.

22 Correa is the last name.

23 MR. PLUMMER: Ma'am?

24 PROSPECTIVE JUROR CORREA: Correa is the last name.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000664 Volume 1

1 MR. PLUMMER: Ms. Correa. Yes, ma'am.

2 Thank you.

3 Yes, sir, Mr. Keats.

4 PROSPECTIVE JUROR KEATS: When you asked if somebody's responsible, does that include the person with the lighter? Who are you talking about?

7 MR. PLUMMER: Yes.

8 PROSPECTIVE JUROR KEATS: Okay. Then I would agree somebody's responsible, liable, too. I mean, you can sue the person with the lighter, but probably don't have any money, but...

12 MR. PLUMMER: Okay.

13 PROSPECTIVE JUROR KEATS: I'm not sure.

14 MR. PLUMMER: Okay.

15 PROSPECTIVE JUROR KEATS: Is it back to the same old question, is the owner of the house and the corporation, are they liable? Is that really what you're asking?

19 MR. PLUMMER: That's the question, yes.

20 PROSPECTIVE JUROR KEATS: That's really what you're asking?

22 MR. PLUMMER: Yes.

23 PROSPECTIVE JUROR KEATS: They're liable. I don't know the extent to...

25 UNIDENTIFIED PROSPECTIVE JUROR: I

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000665 Volume 1

1 don't know to the extent. I'd have to hear more.

2 MR. PLUMMER: Okay. Okay. Okay.

3 Four J's Community Center and Ms. Uduma believe that they've done nothing wrong, and they intend to vigorously defend themselves in this lawsuit.

6 And what I need to know is how many of you-all feel -- would hold that against Four J's Community Center and Ms. Uduma for vigorously seeking the truth and defending themselves in this lawsuit. If you would, raise your hand.

11 (No response.)

12 MR. PLUMMER: Okay. Let me -- I want to gauge and get some information from you about some other aspects of this matter.

15 Second question I want to ask you-all is do you, your spouse, or anyone in your life that influences your decisions do any of the following: Firefighter?

19 Mr. Jones.

20 And you are?

21 PROSPECTIVE JUROR SCHROEDER: Don Schroeder, Number 9.

23 MR. PLUMMER: Mr. Schroeder.

24 Yes, ma'am. You're Juror Number 30 -- 25 PROSPECTIVE JUROR 47: 47.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000666 Volume 1

1 MR. PLUMMER: 47.

2 PROSPECTIVE JUROR 47: My husband's a state trooper.

4 MR. PLUMMER: He's a what?

5 PROSPECTIVE JUROR 47: State trooper.

6 MR. PLUMMER: Okay. First row?

7 PROSPECTIVE JUROR ATKINS: Yeah, Juror Number 2, Mr. Atkins. My wife's an attorney.

9 MR. PLUMMER: Okay. Number 1?

10 PROSPECTIVE JUROR 1: My brother-in-law's a judge here.

12 MR. PLUMMER: Okay. Civil or criminal?

13 PROSPECTIVE JUROR 1: Civil.

14 MR. PLUMMER: Okay. Anybody on -- any other people on this side of the aisle, on this side of the aisle?

17 (Hands raised.)

18 MR. PLUMMER: Yes, sir.

19 PROSPECTIVE JUROR 30: I used to be a reservist in the state of Louisiana.

21 MR. PLUMMER: Okay. All right. And you are number?

23 PROSPECTIVE JUROR 30: I'm 30.

24 MR. PLUMMER: Okay. Yes, sir.

25 UNIDENTIFIED PROSPECTIVE JUROR: I have

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000667 Volume 1

1 one brother that's a doctor and another one that's a nurse.

3 MR. PLUMMER: Okay. All right. All right. Yes, ma'am.

5 PROSPECTIVE JUROR TAFT: Brother that's a firefighter.

7 MR. PLUMMER: Okay. Here in Harris County?

9 PROSPECTIVE JUROR TAFT: Uh-huh.

10 MR. PLUMMER: Okay. You are?

11 PROSPECTIVE JUROR TAFT: Taft.

12 MR. PLUMMER: Ms. Taft.

13 (Hands raised.)

14 MR. PLUMMER: Yes, sir, Mr. Jones.

15 PROSPECTIVE JUROR JONES: My brother's a doctor.

17 MR. PLUMMER: Okay.

18 (Hands raised.)

19 MR. PLUMMER: Yes, sir.

20 PROSPECTIVE JUROR 28: My brother's an attorney.

22 MR. PLUMMER: And you are?

23 PROSPECTIVE JUROR 28: 28, I believe.

24 MR. PLUMMER: And your name?

25 PROSPECTIVE JUROR FARRELL Farrell.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000668 Volume 1

1 MR. PLUMMER: Mr. Farrell. Okay.

2 UNIDENTIFIED PROSPECTIVE JUROR: I have a question.

4 MR. PLUMMER: Yes, ma'am.

5 UNIDENTIFIED PROSPECTIVE JUROR: Do they need to be in this country?

7 MR. PLUMMER: Not necessarily. If they are -- if -- if they're in -- if their decisions influence your decision, your outlook -- 10 UNIDENTIFIED PROSPECTIVE JUROR: You mean, their opinion?

12 MR. PLUMMER: Their opinion, yeah, and what they do for a living influences your outlook...

14 UNIDENTIFIED PROSPECTIVE JUROR: No. 15 (Hands raised.)

16 MR. PLUMMER: Okay. Yes, ma'am.

17 UNIDENTIFIED PROSPECTIVE JUROR: My father-in-law's a firefighter and one of my professors practices law formerly.

20 MR. PLUMMER: Okay. Your father-in-law's a firefighter in Harris County?

22 UNIDENTIFIED PROSPECTIVE JUROR: No. He's actually a retired firefighter in Tarrant County.

24 MR. PLUMMER: Okay. Anybody else on this side?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000669 Volume 1

1 You can't -- you can't ignore and forget your experiences and relationships, but I need to ask the question anyway.

4 For those of you-all who've answered affirmatively to that question, can you set aside what you've been told and taught and heard and the tales you've been told and the tragedies you've been told about if you're selected as a juror in this case and decide the issues in this case solely based on the evidence that comes from the stand and the exhibits and documents that come into evidence? Can each of you-all do that?

13 PROSPECTIVE JURORS: (As a group) Yes.

14 MR. PLUMMER: Okay. Thank you.

15 One of the things you-all -- all have detected by now is that I go second. The plaintiffs go first, the intervenor goes first [sic], but Four J's Community Center and Ms. Uduma go last. That's the way the system's structured.

20 They put -- they -- they get a chance to do opening statements first, they put on evidence first, they do closing arguments first, and we go second.

24 What I want to find out from each of you is that knowing that, would each of you reserve

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000670 Volume 1

1 making up your mind until you've heard all the evidence, not just who went first and who told the story the first time? Can you do that?

4 PROSPECTIVE JURORS: (As a group) Yes.

5 MR. PLUMMER: Okay. Thank you. Thank you.

7 I want to get a sense of one other thing about some of you-all, and I'm going to try to go down this fairly quickly.

10 Can I see the next one?

11 I want to get an idea who of you -- do you-all watch or listen to any of the following programs up there? Well, you know, the first one is NPR.

14 Anybody here watch NPR or listen to NPR? Okay. Can I see hands, please?

16 (Hands raised.)

17 MR. PLUMMER: Okay. You're number is?

18 PROSPECTIVE JUROR 8: 8.

19 UNIDENTIFIED PROSPECTIVE JUROR: What is NPR?

21 MR. PLUMMER: National Public Radio.

22 Number 8 -- if you would, as I come to you, just call out your number.

24 PROSPECTIVE JUROR 3: 3.

25 MR. PLUMMER: Number 3.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000671 Volume 1

1 Mr. Keats.

2 PROSPECTIVE JUROR 5: 5, yeah.

3 MR. PLUMMER: 5.

4 Ms. -- 5 PROSPECTIVE JUROR 20: 20.

6 MR. PLUMMER: 20.

7 Yes, ma'am?

8 PROSPECTIVE JUROR 17: 17.

9 MR. PLUMMER: 17? Okay.

10 Second row? Anybody else on the second row?

12 (No response.)

13 MR. PLUMMER: Third row?

14 UNIDENTIFIED PROSPECTIVE JUROR: Yeah, just a question or just NPR -- 16 MR. PLUMMER: NPR is the first one I'm asking about.

18 Okay. Anybody else on the first row on this side?

20 (No response.)

21 MR. PLUMMER: Second row, Ms. Schuman, Mr. Farrell.

23 PROSPECTIVE JUROR 48: Number 48.

24 MR. PLUMMER: Number 48.

25 And -- and Ms. Elrod. Okay. All

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000672 Volume 1

1 right.

2 Bill Maher; how many of y'all watch Bill Maher? Okay.

4 UNIDENTIFIED PROSPECTIVE JUROR: I've seen it -- 6 MR. PLUMMER: Okay.

7 UNIDENTIFIED PROSPECTIVE JUROR: -- on a regular basis.

9 MR. PLUMMER: What about PBS TV?

10 (Hands raised.)

11 MR. PLUMMER: Okay. What about Oprah Winfrey and Ellen DeGeneres; anybody watch those two shows?

14 (Hands raised.)

15 MR. PLUMMER: Can I see hands? Okay.

16 All right. Good, good, good.

17 Second question: Is there anybody here familiar with the Jessica Tata case?

19 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

20 MR. PLUMMER: Okay.

21 UNIDENTIFIED PROSPECTIVE JUROR: Yes.

22 MR. PLUMMER: Let me get numbers. Let me start off by just getting numbers. Number 1, Number -- 25 PROSPECTIVE JUROR 3: 3.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000673 Volume 1

1 MR. PLUMMER: -- Number 3.

2 Anybody else on the first row?

3 PROSPECTIVE JUROR 7: 7.

4 MR. PLUMMER: Number 7.

5 PROSPECTIVE JUROR 17: 17.

6 MR. PLUMMER: Beg your pardon?

7 PROSPECTIVE JUROR 17: 17.

8 MR. PLUMMER: 17.

9 PROSPECTIVE JUROR 19: 19.

10 MR. PLUMMER: 19.

11 PROSPECTIVE JUROR 20: 20.

12 MR. PLUMMER: 20.

13 5?

14 PROSPECTIVE JUROR 5: 5. I think so. I'm not sure.

16 MR. PLUMMER: Second row?

17 PROSPECTIVE JUROR 36: 36.

18 MR. PLUMMER: 33. No, no. 36.

19 PROSPECTIVE JUROR 36: 36.

20 MR. PLUMMER: No. Haven't we decided on what your number is yet?

22 UNIDENTIFIED PROSPECTIVE JUROR: Yeah.

23 She's 36.

24 MR. PLUMMER: She's 36.

25 And 35.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000674 Volume 1

1 PROSPECTIVE JUROR 35: I've only seen it on TV, what was on TV.

3 MR. PLUMMER: I understand. You have some familiarity with it.

5 UNIDENTIFIED PROSPECTIVE JUROR: Just on TV.

7 MR. PLUMMER: Okay. And Mr. Jones?

8 PROSPECTIVE JUROR JONES: Yes.

9 MR. PLUMMER: Okay. On this side (indicating)?

11 PROSPECTIVE JUROR 9: 9.

12 MR. PLUMMER: Okay.

13 PROSPECTIVE JUROR 11: 11.

14 MR. PLUMMER: 11?

15 PROSPECTIVE JUROR 12: 12.

16 MR. PLUMMER: 12?

17 PROSPECTIVE JUROR 14: 14.

18 MR. PLUMMER: 14.

19 15?

20 PROSPECTIVE JUROR 15: 15.

21 MR. PLUMMER: Second row?

22 PROSPECTIVE JUROR 25: 25.

23 MR. PLUMMER: 25?

24 PROSPECTIVE JUROR 28: 28.

25 MR. PLUMMER: 28?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000675 Volume 1

1 PROSPECTIVE JUROR 29: 29.

2 MR. PLUMMER: 29?

3 PROSPECTIVE JUROR 30: 30.

4 MR. PLUMMER: 30.

5 Bottom row, last group?

6 PROSPECTIVE JUROR 43: 43.

7 MR. PLUMMER: 43?

8 PROSPECTIVE JUROR 45: 45.

9 MR. PLUMMER: 45 and 46 and 47. Okay.

10 Having -- being familiar with the Jessica Tata case, is there anybody here who feels that that would have an influence on how they looked at this case and decided the issues in this case? If so, would you raise your hand?

15 PROSPECTIVE JURORS: (As a group) No. 16 MR. PLUMMER: Everybody understands that that was a different set of circumstances, different facts?

19 PROSPECTIVE JURORS: (As a group) Yes.

20 MR. PLUMMER: Okay. Thank you.

21 I want to -- I want to -- each of you to try to answer this question for me: Well, I need to know how you -- how you'd answer this question, whether you strongly agree, agree, disagree, or strongly disagree. Okay?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000676 Volume 1

1 People of foreign origin are less trustworthy.

3 Number 1.

4 PROSPECTIVE JUROR 1: Strongly disagree.

6 MR. PLUMMER: Okay. Number 2?

7 PROSPECTIVE JUROR 2: Strongly disagree.

9 MR. PLUMMER: Number 3?

10 PROSPECTIVE JUROR 3: Strongly disagree.

12 MR. PLUMMER: Number 4?

13 PROSPECTIVE JUROR 4: Number 4.

14 MR. PLUMMER: Thank you, sir.

15 Number 5?

16 PROSPECTIVE JUROR 5: 3, disagree.

17 MR. PLUMMER: Okay. Number 6?

18 PROSPECTIVE JUROR 6: Disagree.

19 MR. PLUMMER: Number 7?

20 PROSPECTIVE JUROR 7: Disagree, disagree.

22 MR. PLUMMER: Okay. Number 8?

23 PROSPECTIVE JUROR 8: Disagree.

24 MR. PLUMMER: Number 9?

25 PROSPECTIVE JUROR 9: Disagree,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000677 Volume 1

1 disagree.

2 MR. PLUMMER: That's number three.

3 Okay.

4 PROSPECTIVE JUROR 9: Right.

5 MR. PLUMMER: Number 10?

6 PROSPECTIVE JUROR 10: Disagree.

7 MR. PLUMMER: Number 11?

8 PROSPECTIVE JUROR 11: Strongly disagree.

10 MR. PLUMMER: Number 12?

11 PROSPECTIVE JUROR 12: Strongly disagree.

13 MR. PLUMMER: Number 13?

14 PROSPECTIVE JUROR 13: Strongly disagree.

16 MR. PLUMMER: 14?

17 PROSPECTIVE JUROR 14: Strongly disagree.

19 MR. PLUMMER: 15?

20 PROSPECTIVE JUROR 15: Strongly disagree.

22 MR. PLUMMER: 16?

23 PROSPECTIVE JUROR 16: I disagree.

24 MR. PLUMMER: Okay.

25 PROSPECTIVE JUROR 17: Strongly

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000678 Volume 1

1 disagree.

2 MR. PLUMMER: Okay. 18?

3 PROSPECTIVE JUROR 18: Number 3.

4 MR. PLUMMER: Okay. 19?

5 PROSPECTIVE JUROR 19: Number 4.

6 MR. PLUMMER: 20?

7 PROSPECTIVE JUROR 20: Strongly disagree.

9 PROSPECTIVE JUROR 21: I disagree.

10 MR. PLUMMER: 20 -- 21?

11 PROSPECTIVE JUROR 21: 21. (No answer.)

13 MR. PLUMMER: 22?

14 PROSPECTIVE JUROR 22: Strongly disagree.

16 MR. PLUMMER: 23?

17 PROSPECTIVE JUROR 23: Disagree.

18 MR. PLUMMER: 24?

19 THE COURT: Mr. Plummer, you need to return to the podium, please.

21 MR. PLUMMER: Yes, sir. Yes, sir.

22 Number 24?

23 PROSPECTIVE JUROR 24: Disagree.

24 MR. PLUMMER: Okay. 25?

25 PROSPECTIVE JUROR 25: Strongly

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000679 Volume 1

1 disagree.

2 MR. PLUMMER: 26?

3 PROSPECTIVE JUROR 26: Strongly disagree.

5 MR. PLUMMER: 27?

6 PROSPECTIVE JUROR 27: Strongly disagree.

8 MR. PLUMMER: 28?

9 PROSPECTIVE JUROR 28: Disagree.

10 MR. PLUMMER: Okay. 29?

11 PROSPECTIVE JUROR 29: Disagree.

12 MR. PLUMMER: Okay. 20 -- 30?

13 PROSPECTIVE JUROR 30: Disagree.

14 MR. PLUMMER: 31?

15 PROSPECTIVE JUROR 31: Disagree.

16 MR. PLUMMER: 32?

17 PROSPECTIVE JUROR 32: Disagree, disagree.

19 MR. PLUMMER: Okay. 33?

20 PROSPECTIVE JUROR 33: Strongly disagree.

22 MR. PLUMMER: 34?

23 PROSPECTIVE JUROR 34: Strongly disagree.

25 MR. PLUMMER: 35?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000680 Volume 1

1 PROSPECTIVE JUROR 35: Strongly disagree.

3 MR. PLUMMER: 36?

4 PROSPECTIVE JUROR 36: I have to ask a question.

6 MR. PLUMMER: Yes, ma'am.

7 PROSPECTIVE JUROR 36: Does it -- is that a general question or certain countries?

9 MR. PLUMMER: Let me come back to that one.

11 PROSPECTIVE JUROR 36: And I ask that -- 13 MR. PLUMMER: No, no. That's a good question. That's a good question. I'll come back to that, but as a general proposition.

16 PROSPECTIVE JUROR 36: I disagree.

17 MR. PLUMMER: Okay.

18 PROSPECTIVE JUROR 36: Strongly disagree.

20 MR. PLUMMER: And you are 36?

21 37.

22 PROSPECTIVE JUROR 37: (Nods head.)

23 MR. PLUMMER: 38?

24 PROSPECTIVE JUROR 38: Strongly disagree.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000681 Volume 1

1 MR. PLUMMER: 39?

2 PROSPECTIVE JUROR 39: Disagree.

3 MR. PLUMMER: 40?

4 PROSPECTIVE JUROR 40: Strongly disagree.

6 MR. PLUMMER: 41?

7 PROSPECTIVE JUROR 41: Strongly disagree.

9 MR. PLUMMER: 42?

10 PROSPECTIVE JUROR 42: Strongly disagree.

12 MR. PLUMMER: 43?

13 PROSPECTIVE JUROR 43: Disagree.

14 MR. PLUMMER: 44?

15 PROSPECTIVE JUROR 44: Disagree.

16 MR. PLUMMER: 45?

17 PROSPECTIVE JUROR 45: Disagree.

18 MR. PLUMMER: 46?

19 PROSPECTIVE JUROR 46: Strongly disagree.

21 MR. PLUMMER: 47?

22 PROSPECTIVE JUROR 47: Strongly disagree.

24 MR. PLUMMER: 48?

25 PROSPECTIVE JUROR 48: Strongly

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000682 Volume 1

1 disagree.

2 MR. PLUMMER: Now, let me answer Ms. Hilburn's question. Let's suppose that the origin -- country of origin is Nigeria. Anybody here -- just raise your hand. Well, I don't want to go through the numbers again; but anybody strongly feel one way or the other on either -- on that scale?

8 Ms. Hilburn?

9 PROSPECTIVE JUROR HILBURN: I'm bias in that way because they are rated as one of the most unethical countries that conducts business in the world.

12 They're in the top five list.

13 MR. PLUMMER: Okay. Anybody feel like Ms. Hilburn?

15 (Hands raised.)

16 MR. PLUMMER: Okay. Mr. Hill?

17 PROSPECTIVE JUROR KEATS: Keats.

18 MR. PLUMMER: Mr. Keats.

19 The second row? Mr. Jones on the last row. Anybody on the second row?

21 (No response.)

22 MR. PLUMMER: Third row?

23 (No response.)

24 MR. PLUMMER: Front row over on this side, to my left? Anybody feel that way?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000683 Volume 1

1 (Hands raised.)

2 MR. PLUMMER: Yes, sir.

3 UNIDENTIFIED PROSPECTIVE JUROR: I didn't hear.

5 MR. PLUMMER: I'm sorry. Ms. Hilburn said that she's bias against folks -- and correct me if I'm wrong -- from Nigeria because they have -- the country has a reputation as being the most unethical -- 9 PROSPECTIVE JUROR HILBURN: In the top ten most unethical countries in the world.

11 MR. PLUMMER: In the top ten of the most unethical countries in the world. Do you feel that way?

14 UNIDENTIFIED PROSPECTIVE JUROR: I wouldn't jump to that conclusion and assume that. I would look at the individual.

17 MR. PLUMMER: So you wouldn't feel -- you wouldn't feel strongly -- 19 UNIDENTIFIED PROSPECTIVE JUROR: Just because they're -- because I have friends from Nigeria.

21 I wouldn't jump to that conclusion.

22 MR. PLUMMER: But I need to ask this question, because, I mean, it -- you would want to disclose that if you were sitting in our shoes; is that correct?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000684 Volume 1

1 UNIDENTIFIED PROSPECTIVE JUROR: Yeah, but -- 3 MR. PLUMMER: Second row, anybody feel that way?

5 (No response.)

6 MR. PLUMMER: Third row, anybody feel that way?

8 (No response.)

9 MR. PLUMMER: Okay. Thank you.

10 THE COURT: You have five minutes, Mr. Plummer.

12 Mr. PLUMMER: Thank you, Your Honor.

13 One more question, and I need to run through the list. Clients in a residential facility should be bodily searched regularly to prevent harm to others. Agree, disagree, strongly, one way or the other?

18 PROSPECTIVE JUROR 1: Depends on if the individual requires them to be searched, if they're known to be violent or they're known to -- yeah, if they're known to be violent in any way.

22 MR. PLUMMER: Let me put it in another context.

24 No history of setting fires at all.

25 Okay? Do they -- do you require they be bodily searched

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000685 Volume 1

1 for lighters when there's absolutely no indication in the past of any fire bug activity or things of that sort?

4 PROSPECTIVE JUROR 1: Well, you just said that they have a history of -- 6 MR. PLUMMER: If they have no history.

7 PROSPECTIVE JUROR 1: Oh, if they have no history.

9 MR. PLUMMER: Right.

10 Should they been strip-searched every time they come in?

12 PROSPECTIVE JUROR 1: No. 13 MR. PLUMMER: Number 2?

14 PROSPECTIVE JUROR 2: Strongly disagree.

16 MR. PLUMMER: Number 3?

17 PROSPECTIVE JUROR 3: Disagree.

18 MR. PLUMMER: Number 4?

19 PROSPECTIVE JUROR 4: Disagree.

20 MR. PLUMMER: Number 5?

21 PROSPECTIVE JUROR 5: Disagree.

22 MR. PLUMMER: Number 6?

23 PROSPECTIVE JUROR 6: Disagree.

24 MR. PLUMMER: Number 7?

25 PROSPECTIVE JUROR 7: Disagree.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000686 Volume 1

1 MR. PLUMMER: Number 8?

2 PROSPECTIVE JUROR 8: Disagree.

3 MR. PLUMMER: Number 9?

4 PROSPECTIVE JUROR 9: Disagree.

5 MR. PLUMMER: Number 10?

6 PROSPECTIVE JUROR 10: Disagree.

7 MR. PLUMMER: Number 11?

8 PROSPECTIVE JUROR 11: Agree in some conditions.

10 MR. PLUMMER: Okay.

11 PROSPECTIVE JUROR 11: It depends.

12 MR. PLUMMER: Okay. Number 12?

13 PROSPECTIVE JUROR 12: Disagree.

14 MR. PLUMMER: Number 13?

15 PROSPECTIVE JUROR 13: Disagree.

16 MR. PLUMMER: 14?

17 PROSPECTIVE JUROR 14: Disagree.

18 MR. PLUMMER: 15?

19 PROSPECTIVE JUROR 15: Disagree.

20 MR. PLUMMER: 16?

21 PROSPECTIVE JUROR 16: Disagree.

22 MR. PLUMMER: 17?

23 PROSPECTIVE JUROR 17: Oh, no, strongly disagree.

25 MR. PLUMMER: 18?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000687 Volume 1

1 PROSPECTIVE JUROR 18: Disagree.

2 MR. PLUMMER: 19?

3 PROSPECTIVE JUROR 19: Disagree.

4 MR. PLUMMER: 20?

5 PROSPECTIVE JUROR 20: I disagree. But my father is in a residential facility and he does have to be checked every time he comes back in for lighters.

8 MR. PLUMMER: Okay. So you disagree but you -- 10 PROSPECTIVE JUROR 20: I disagree, but -- but I have a little bit of bias -- 12 MR. PLUMMER: Okay.

13 PROSPECTIVE JUROR 20: -- there.

14 MR. PLUMMER: Okay. Next number?

15 PROSPECTIVE JUROR 21: 21. It depends on the facility.

17 MR. PLUMMER: Okay. Group home, four-person group home.

19 PROSPECTIVE JUROR 21: I agree.

20 MR. PLUMMER: Okay.

21 PROSPECTIVE JUROR 22: I agree.

22 MR. PLUMMER: Okay.

23 PROSPECTIVE JUROR 23: Disagree.

24 MR. PLUMMER: Mr. Pape, what's your number again?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000688 Volume 1

1 PROSPECTIVE JUROR PAPE: 23.

2 MR. PLUMMER: Okay.

3 24?

4 PROSPECTIVE JUROR 24: Disagree.

5 MR. PLUMMER: 25?

6 PROSPECTIVE JUROR 25: Disagree.

7 MR. PLUMMER: 26?

8 PROSPECTIVE JUROR 26: Disagree.

9 MR. PLUMMER: 27?

10 PROSPECTIVE JUROR 27: Disagree.

11 MR. PLUMMER: 28?

12 PROSPECTIVE JUROR 28: Strongly disagree.

14 MR. PLUMMER: 29?

15 PROSPECTIVE JUROR 29: Agree.

16 MR. PLUMMER: 30?

17 PROSPECTIVE JUROR 30: I agree.

18 MR. PLUMMER: 31?

19 PROSPECTIVE JUROR 31: Disagree.

20 MR. PLUMMER: 32?

21 PROSPECTIVE JUROR 32: Disagree.

22 MR. PLUMMER: 33?

23 PROSPECTIVE JUROR 33: Disagree.

24 MR. PLUMMER: 34?

25 PROSPECTIVE JUROR 34: I have a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000689 Volume 1

1 question -- 2 MR. PLUMMER: Yes, ma'am.

3 PROSPECTIVE JUROR 34: -- because I haven't formed my opinion yet. You're saying clients in a residential facility, but you're not saying what clients in that residential facility. So that will -- 7 MR. PLUMMER: I'm sorry. I'm not saying what?

9 PROSPECTIVE JUROR 34: Any client?

10 MR. PLUMMER: The people who live -- the clients who live in the home, the group home.

12 PROSPECTIVE JUROR 34: In the group home for this particular case?

14 MR. PLUMMER: Correct.

15 PROSPECTIVE JUROR 34: I agree.

16 MR. PLUMMER: Okay.

17 PROSPECTIVE JUROR 35: Agree. I'm sorry. Disagree.

19 MR. PLUMMER: Disagree?

20 PROSPECTIVE JUROR 36: Agree.

21 MR. PLUMMER: Okay. And 36 -- 37?

22 PROSPECTIVE JUROR 37: Disagree.

23 MR. PLUMMER: 38?

24 PROSPECTIVE JUROR 38: Agree -- disagree.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000690 Volume 1

1 MR. PLUMMER: 38.

2 39?

3 PROSPECTIVE JUROR 39: Agree.

4 MR. PLUMMER: Mr. Jones?

5 PROSPECTIVE JUROR JONES: Strongly agree.

7 MR. PLUMMER: Okay. 41?

8 PROSPECTIVE JUROR 41: Strongly disagree.

10 MR. PLUMMER: 42?

11 PROSPECTIVE JUROR 42: Disagree.

12 MR. PLUMMER: 43?

13 PROSPECTIVE JUROR 43: Agree.

14 MR. PLUMMER: 44?

15 PROSPECTIVE JUROR 44: Disagree.

16 MR. PLUMMER: 45?

17 PROSPECTIVE JUROR 45: Disagree.

18 MR. PLUMMER: 46?

19 PROSPECTIVE JUROR 46: I think it depends on what the policies and procedures are and the contracts and what the industry standard is, all of those things which we do not yet know.

23 MR. PLUMMER: Okay. So I can take that as a pass on that question?

25 PROSPECTIVE JUROR 46: It's -- it

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000691 Volume 1

1 depends on persons more knowledgeable than me to know whether or not they should be strip-searched or not.

3 And your question is strip-searched, but your question up there (indicating) says "bodily searched." 5 MR. PLUMMER: I'm sorry. I'm sorry.

6 PROSPECTIVE JUROR 46: But anyway, I think it depends on what the industry standard is, what the agreement is of the parties.

9 MR. PLUMMER: Let me add something to that because I'm going to have to sit down in a second.

11 Let me add that part of the theory behind group homes is to maintain the integrity of the clients, though they have these disabilities; and that means that they have rights, personal rights, due process rights, rights to be free from confinement and things of that sort.

16 PROSPECTIVE JUROR 46: Right.

17 MR. PLUMMER: And we believe the rules are you can't strip search them. Okay?

19 PROSPECTIVE JUROR 46: Well, that's what I expect the evidence to tell me at the trial -- 21 MR. PLUMMER: Okay.

22 PROSPECTIVE JUROR 46: -- is that -- somebody would get up there and explain that this is the -- to maintain their personal privacy, and you don't give up your privacy rights and --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000692 Volume 1

1 MR. PLUMMER: Correct.

2 PROSPECTIVE JUROR 46: -- I expect there will be some witnesses, if I hear the trial. I don't want to predecide the issue.

5 MR. PLUMMER: I appreciate that.

6 47?

7 PROSPECTIVE JUROR 47: I'm going to abstain.

9 MR. PLUMMER: Okay.

10 48? 48?

11 PROSPECTIVE JUROR 48: Disagree.

12 MR. PLUMMER: Okay. Ladies and gentlemen -- 14 (Hands raised.)

15 MR. PLUMMER: Oh, yes, sir?

16 UNIDENTIFIED PROSPECTIVE JUROR: One question: When I look at this question, I'm thinking more along the lines of a pat-down than I am a strip searching. If you're talking about a strip search, I disagree. But if you're talking about, like, a pat-down, I can agree to that, because that's just -- you don't know the mental capability -- I don't know the mental capabilities you're talking about here, but you're talking about mentally-challenged people don't necessarily know the dangers of what they've got ahold

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000693 Volume 1

1 of. So I could agree to a pat-down.

2 MR. PLUMMER: Okay. As opposed to a strip search?

4 UNIDENTIFIED PROSPECTIVE JUROR: Oh, yeah.

6 MR. PLUMMER: And Number 34 agrees with you.

8 UNIDENTIFIED PROSPECTIVE JUROR: A strip search I disagree with; but if it's just, like, a pat-down, no problem.

11 THE COURT: Thank you, Mr. Plummer.

12 MR. PLUMMER: Thank you, Your Honor.

13 Ladies and gentlemen, thank you for your kindness.

15 THE COURT: Counsel, please approach the bench.

17 Okay. Ladies and gentlemen, we're going to take a break. It's about the lunch hour. And sometimes these breaks take -- breaks take a little bit longer than I planned for. I really try and do that.

21 But since it's about the lunch hour, what we're going to do is we're going to take a longer break so that y'all can go down, if you would like to, and have lunch down in the cafeteria.

25 I'm going to ask five of you to -- to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000694 Volume 1

1 hold back. We're going to -- we have five of you that we need to talk to on a one-on-one basis. And so before y'all head for the elevators, wait for Deputy Dewey to come on out and let y'all know who needs to stick around.

6 You don't have to go to the cafeteria for lunch. There are other eating establishments in the area; but I tell you what, it's going to be an awful lot easier on you if you go down there. The line may be a little long, but you won't have to re-enter through the metal detectors to get back into the courthouse. All you have to do is just go right out to the elevator.

13 You are now in a different building than you were in when you first reported for jury duty; so you won't have to worry about trying to figure out where you are downtown. We've got a pretty good menu down in the cafeteria. I don't get any share of the profits from the cafeteria; so I'm not steering you down there to do anything like that.

20 But we're going to take a break. It's just shy of 12 noon. We're going to start back up at 1:15. So those of you who are not sticking around, just make sure you're back -- well, actually, everybody make sure you're back at 1:15 up here in the court -- the hallway outside the courtroom. We're on the 13th floor

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000695 Volume 1

1 of the Harris County Civil Courthouse.

2 Again, Deputy Dewey will be out in the hallway here momentarily. She can give you tips on that. Thank you.

5 (Prospective Jury Panel exits the courtroom.)

7 THE COURT: Thank you. Please be seated.

9 All right. I'll point out to y'all that the quicker we get through this, the more time you'll have for your lunch break. So just keep that in mind.

13 (Prospective Juror Keats enters the courtroom and takes the stand.)

15 THE COURT: Mr. Thweatt -- I'm sorry, Mr. Terry.

17 MR. TERRY: Thank you, Your Honor.

18 Mr. Keats, when I was questioning you earlier about holding an individual to a -- as -- comparing an individual to a corporation and how you would kind of rate the standard of proof or how much evidence I would have to show in order to hold that individual liable instead of the corporation, I believe your response was that you were going to require a higher, I guess, burden of proof from me as to the individual versus the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000696 Volume 1

1 corporation.

2 PROSPECTIVE JUROR KEATS: Yes, I would say so. 4 MR. TERRY: Am I correct?

5 PROSPECTIVE JUROR KEATS: I would say so. 7 MR. TERRY: Okay. No further questions, Your Honor.

9 THE COURT: Mr. Sparks, do you have any questions?

11 MR. SPARKS: I have no questions.

12 THE COURT: All right. Mr. Plummer?

13 Mr. PLUMMER: No questions.

14 THE COURT: All right. Let me ask you a question. First of all, we didn't talk about it in voir dire; but when we're talking about punitive damages, we're actually talking about something called exemplary damages. That's the way the law talks about it here in Texas.

20 And the law for exemplary damages requires that whoever the defendant is, liability and the amount of exemplary damages must be proved not by a preponderance of the evidence but by clear and convincing evidence, which is a higher standard of proof than preponderance of the evidence.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000697 Volume 1

1 Understanding that the law already requires a higher standard of proof for any defendant, whether they're an individual or a corporation, would that change your view or would you still require something higher than clear and convincing evidence for an individual as opposed to a corporation?

7 PROSPECTIVE JUROR KEATS: No. I -- I -- clear and convincing evidence would be -- I mean, it's not, like, a death penalty case; but it could be the economic death penalty for an individual and serious consequences.

12 I -- I -- if you can show that -- that an individual is equally culpable or complicit in allowing a situation to happen, I think they should be responsible.

16 But I -- you know, frankly, I just don't trust the way courts have worked over the years; and I think a lot of people have been unfairly targeted and some companies have been unnecessarily plundered. I don't say that as a bias against the court process or anything else. It's just that, I mean, there are -- people -- people are people. They make mistakes, things happen, and there's just no guarantees in life. And you can't always -- I mean, there's just not always a big payday for every bad thing that happens, necessarily.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000698 Volume 1

1 I believe people should be punished for willful, obvious negligence that they could have prevented or for, you know, hiding behind a corporate veil to just extract money and hopefully, you know, ignore problems. I mean, I -- it's hard -- you know, I don't know what to tell you.

7 I would try to do things as fairly, as I could; but I -- if you're giving me a blanket instruction and say that there's a liability here and I know that, regardless of what I may have heard, I can give a yes or no answer and if -- and if the -- if the corporation gets hit, then we're going to go wipe out this person and do I not -- do you not get a choice to weigh those two scenarios, where maybe there is a difference between the owner or the officer of the company and what they knew or did and the company itself? I'm not sure...

18 THE COURT: Well, first of all, I'll tell you something that you hear lawyers and judges say all the time in this process. There's no wrong answer.

21 So I'm glad that you're candid with me about your views and feelings. What we do when we assess exemplary damages, we look at each individual defendant who is being accused of conduct that could open them up for exemplary damages; and the jury is asked the question as

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000699 Volume 1

1 to each particular defendant, whether they should be found liable for exemplary damages by clear and convincing evidence.

4 PROSPECTIVE JUROR KEATS: Okay. You know, I would say, if you give me clear and convincing evidence, rather -- yes. I mean, I've -- I've -- I would go with that. I mean, it's not -- it's not all that iffy. I'm not -- I don't have a prejudice to protect somebody any more than I do to hurt them.

10 I just -- you know, give me the facts and show me clear and convincing evidence. And if exemplary damages are for punishment or for whatever, okay. I mean, if it's warranted, I don't have a philosophical problem with that, with the wording "punitive" or "exemplary damages." 16 But, you know, I -- I just -- you can't be frivolous about it, you know, or just assume that there are always more deep pockets to pick because I think that hurts the whole -- society.

20 I mean, you just have to be careful about how you, you know, award judgments and who you blame and how much. I don't take it lightly, but I -- I can't give you a general answer other than a preponderance of the evidence. That doesn't mean that I -- you know, that I absolutely would not, you know,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000700 Volume 1

1 hold an individual liable.

2 THE COURT: Well, like I said, for exemplary damages, the standard of proof is by clear and convincing evidence, not the lower preponderance of the evidence.

6 Mr. Terry, do you have -- 7 PROSPECTIVE JUROR KEATS: Yeah, I think I understand that, clear and convincing, yeah.

9 THE COURT: Mr. Terry, do you have any follow-up questions?

11 MR. TERRY: No, Your Honor.

12 THE COURT: Mr. Sparks?

13 MR. SPARKS: Yes, Your Honor.

14 Mr. Keats, knowing that this is a civil matter in which a jury will be asked to award damages, if and so they find, do you think that this would be an appropriate case for you to sit in, knowing that we're looking at the company and the individual, based on statements you made about individuals and companies?

20 PROSPECTIVE JUROR KEATS: Sure. Yes.

21 I think I could. I mean, I -- as I say, I don't have a preconceived idea that, you know, well, somebody got hurt and then we have to -- I mean, I'd have to listen to both sides. I don't know why I couldn't do that.

25 I don't -- I'm not against awarding

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000701 Volume 1

1 damages, exemplary or whatever, when warranted. So yeah, I would say, yes. I -- 3 MR. SPARKS: So based on the statements you made about deep pockets and things of that nature, do you think it would be inappropriate in a situation where someone was severely burned and someone died that going into a deep pocket would be appropriate?

8 PROSPECTIVE JUROR KEATS: It might be appropriate. Depends on who the deep pocket is.

10 I mean, did they really have anything to do with it? I know that -- gosh, years ago I had a friend during the great depression in the Eighties staying at my house and she was a real estate broker, as am I. And a man with whom she was associated did something unethical, and then a lawyer called me up and he wanted to sue me due to some vicarious liability theory because I was the deep pocket.

18 It happened that my friend, who was broke and living with me, didn't have any money. But since I provided a place for this broker to live and work, then, therefore, I was responsible for something that -- somebody they sponsored.

23 I mean, I knew nothing about it.

24 Anyway, that's going a little far. But, I mean, I'm just aware that things like that can be construed to --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000702 Volume 1

1 to confer liability upon people who are quite innocent.

2 You know what I mean?

3 MR. SPARKS: You made a statement, also, sir, did you not, about some problems in reference to the court system itself and -- and in reference to the possibility of awarding money judgments and things of that nature.

8 The question, once again, is: Do you think this type of case is one that it might not be in your best interest to sit in with your preconceived ideas and notions?

12 PROSPECTIVE JUROR KEATS: No, huh-uh.

13 I would just say, in fairness to both sides, that I'm not one to be easily manipulated. I mean, you just have to convince me with facts and rational arguments and not emotional ones for me to make a decision. That's all.

17 I mean, I just want you to know who I am; and I'll do the best I can, you know.

19 MR. SPARKS: All right. Thank you.

20 MR. PLUMMER: No questions, Your Honor.

21 THE COURT: All right. Thank you.

22 Have a good lunch. We'll see you back at 1:15.

23 PROSPECTIVE JUROR KEATS: Thank you.

24 (Prospective Juror Keats leaves the courtroom.)

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000703 Volume 1

1 (Prospective Juror DeSoto enters the courtroom and takes the stand.)

3 THE COURT: Ms. DeSoto, if you could have a seat right here in this chair next to me. We've got a microphone, that way we make sure everyone hears what you tell us. Thank you.

7 Mr. Terry?

8 MR. TERRY: Ms. DeSoto, looking back at my notes -- and I didn't take very good notes, and that's why I need to ask you a little bit more.

11 I understand that Mr. Plummer's firm represented your sister?

13 PROSPECTIVE JUROR DESOTO: Yes.

14 MR. TERRY: Okay. And that was about -- did you say ten -- 16 PROSPECTIVE JUROR DESOTO: I think it was about ten years ago.

18 MR. TERRY: Okay. Do you know what kind of action it was?

20 PROSPECTIVE JUROR DESOTO: Well, she was involved in an accident.

22 MR. TERRY: Okay. Personal injury?

23 PROSPECTIVE JUROR DESOTO: Uh-huh, personal injury.

25 MR. TERRY: Okay. Did you have any

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000704 Volume 1

1 interaction with Mr. Plummer's firm during that time?

2 PROSPECTIVE JUROR DESOTO: I think I might have met him at one time at his office because we went over there, but it wasn't more than just the one time.

6 MR. TERRY: Were you a witness or anything like that to the case?

8 PROSPECTIVE JUROR DESOTO: No, I wasn't.

10 MR. TERRY: Okay. Just again, the fact that your sister was represented by Mr. Plummer, would that in any way affect your testimony [sic] in regards to the case today -- in other words, that this might not be the case for you because of that connection -- or would you be able to come in and see the facts as they are?

17 PROSPECTIVE JUROR DESOTO: I'm really not sure. I can -- 19 MR. TERRY: So you have a -- 20 PROSPECTIVE JUROR DESOTO: Yeah. I mean, I think -- well, it has nothing to do personally because -- I mean, she didn't get anything out of it.

23 Her leg was amputated. She didn't get awarded for her pain and suffering.

25 MR. TERRY: Okay.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000705 Volume 1

1 PROSPECTIVE JUROR DESOTO: So I don't know.

3 MR. TERRY: So that might, I guess, affect your judgment in this case or bias -- 5 PROSPECTIVE JUROR DESOTO: Yeah.

6 MR. TERRY: -- as to one side or the other?

8 PROSPECTIVE JUROR DESOTO: I think so. 9 MR. TERRY: No further questions, Your Honor.

11 THE COURT: Mr. Sparks?

12 MR. SPARKS: Good afternoon, ma'am.

13 PROSPECTIVE JUROR DESOTO: Hi.

14 MR. SPARKS: Having said you think it would, that bias would be toward Mr. Plummer; is that correct?

17 PROSPECTIVE JUROR DESOTO: Uh-huh.

18 MR. SPARKS: Thank you.

19 THE COURT: Mr. Plummer?

20 Mr. PLUMMER: No questions, Your Honor.

21 THE COURT: All right. Thank you.

22 Have a good lunch. We'll see you after lunch.

23 PROSPECTIVE JUROR DESOTO: Okay. Thank you.

25 (Prospective Juror DeSoto exits the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000706 Volume 1

1 courtroom.)

2 (Prospective Juror Schroeder enters the courtroom and takes the stand.)

4 THE COURT: Mr. Schroeder, if you could come up here and have a seat in the chair next to me. We've got a microphone. That way everyone hears what you tell us.

8 PROSPECTIVE JUROR SCHROEDER: Okay.

9 THE COURT: Thank you.

10 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

11 THE COURT: Mr. Plummer?

12 MR. PLUMMER: Mr. Schroeder?

13 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

14 MR. PLUMMER: Mr. Schroeder, you're a fireman?

16 PROSPECTIVE JUROR SCHROEDER: Well, I'm retired now, yes, sir.

18 MR. PLUMMER: Once a fireman, always a fireman?

20 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

21 That's true.

22 MR. PLUMMER: And you understand that there are going to be -- you're going to hear evidence here in the courtroom and documents and things of that sort and testimony, and then when you go back to the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000707 Volume 1

1 jury room, if you're one of the jurors who deliberate, people may turn to you because of your expertise.

3 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

4 MR. PLUMMER: You were a fire marshal -- 6 PROSPECTIVE JUROR SCHROEDER: I understand, yes, sir.

8 MR. PLUMMER: Yes. You fought the suppression?

10 PROSPECTIVE JUROR SCHROEDER: I understand. Yes, sir.

12 MR. PLUMMER: And you can't -- I can't ask you to forget your common sense.

14 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

15 MR. PLUMMER: But -- but, you know, one of the concerns I have is that if you go back there, you will use your expertise when you're not on the stand and I can't cross-exam you and ask you a question about that.

20 PROSPECTIVE JUROR SCHROEDER: Right.

21 Yes, sir.

22 MR. PLUMMER: Can you make that separation?

24 PROSPECTIVE JUROR SCHROEDER: I would to the best of my ability.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000708 Volume 1

1 MR. PLUMMER: Okay. But people are going to ask you questions.

3 PROSPECTIVE JUROR SCHROEDER: Right.

4 MR. PLUMMER: Okay. Well, let me add to that.

6 One of their experts is Eddie Corral.

7 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

8 I know Chief Corral real well, yes, sir.

9 MR. PLUMMER: I'm sure you do because he was chief for a good while and on the force for a while.

12 PROSPECTIVE JUROR SCHROEDER: Right.

13 MR. PLUMMER: And because you know him, he's got credibility with you. He's like my basketball team analogy that I used earlier.

16 PROSPECTIVE JUROR SCHROEDER: Right.

17 MR. PLUMMER: Are you inclined to believe Chief Corral, regardless of what the cross-examination is or the scrutiny is made of his opinions?

21 PROSPECTIVE JUROR SCHROEDER: No. I wouldn't -- I mean, I'd have to look at it myself.

23 MR. PLUMMER: Okay. Okay.

24 PROSPECTIVE JUROR SCHROEDER: I mean, I trust in Chief Corral and what he says and stuff; but

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000709 Volume 1

1 he's not 100 percent right all the time, either.

2 MR. PLUMMER: Okay.

3 PROSPECTIVE JUROR SCHROEDER: Just like me or whoever.

5 MR. PLUMMER: One of the things nobody talked about in voir dire is the notion of proximate cause. Okay? The legal causation for a particular event. Okay?

9 Are you familiar with that expression by any chance, "proximate cause"?

11 PROSPECTIVE JUROR SCHROEDER: A little bit, yes, sir.

13 MR. PLUMMER: Have you ever been involved in lawsuits before?

15 PROSPECTIVE JUROR SCHROEDER: No. I -- yeah. I was on a jury. Is that what you mean?

17 MR. PLUMMER: Well, no. As a litigant.

18 PROSPECTIVE JUROR SCHROEDER: No. Nobody's ever -- God, no. 20 MR. PLUMMER: You haven't sued anybody?

21 PROSPECTIVE JUROR SCHROEDER: No. Oh, no. 23 MR. PLUMMER: Okay. Well, what I'm worried about, an undisclosed expert being in the jury room.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000710 Volume 1

1 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

2 That's understandable.

3 MR. PLUMMER: Should I be worried about it?

5 PROSPECTIVE JUROR SCHROEDER: Now, if they ask my opinion, I'm going to give them my opinion.

7 MR. PLUMMER: Well, your opinion is an educated opinion.

9 PROSPECTIVE JUROR SCHROEDER: I know.

10 I know.

11 MR. PLUMMER: That's what concerns me. 12 PROSPECTIVE JUROR SCHROEDER: Well, if there's certain things that was not brought out and there are certain things that were brought out that I don't see eye to eye and -- I know state regulations and I know the only way to change those is you've got to have major catastrophes to change them.

18 MR. PLUMMER: Correct. Correct.

19 PROSPECTIVE JUROR SCHROEDER: And my biggest thing -- 21 MR. PLUMMER: Let me give you a simple example.

23 PROSPECTIVE JUROR SCHROEDER: Okay.

24 MR. PLUMMER: One argument may be that the house should have had sprinklers. They ain't

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000711 Volume 1

1 required for a four-bedroom home.

2 PROSPECTIVE JUROR SCHROEDER: Right.

3 MR. PLUMMER: And the house could be safe without them; but you may feel the house needed to have sprinklers, based on your experience.

6 PROSPECTIVE JUROR SCHROEDER: Right.

7 MR. PLUMMER: Do I have to worry about you going back there, giving your opinion in that regard? And you can be honest with me. 10 PROSPECTIVE JUROR SCHROEDER: I would say yes, because, I mean, I would think they would -- in a situation, if you just had a house that had four individuals, they were just -- let's use my father-in-law right now.

15 He just got through with surgery, so he's in a rehabilitation place.

17 MR. PLUMMER: Right.

18 PROSPECTIVE JUROR SCHROEDER: And I would not have to worry about him because he still can get around and stuff. But in a situation like what you were talking about earlier with -- 22 MR. PLUMMER: Ms. Wagner, she couldn't get around.

24 PROSPECTIVE JUROR SCHROEDER: Right.

25 And seeing what I've seen in the past and just with that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000712 Volume 1

1 one lady there with -- I assume it was still four people that were there?

3 MR. PLUMMER: Uh-huh.

4 PROSPECTIVE JUROR SCHROEDER: I just can't agree with that -- 6 MR. PLUMMER: Okay.

7 PROSPECTIVE JUROR SCHROEDER: -- because of the situations, not knowing, basically the -- the health of the lady that was supposed to get them all out. I couldn't -- in other words, I couldn't just say it was all her fault.

12 MR. PLUMMER: Okay.

13 PROSPECTIVE JUROR SCHROEDER: There's no way.

15 MR. PLUMMER: Okay. Thank you, sir.

16 Appreciate it.

17 PROSPECTIVE JUROR SCHROEDER: Okay.

18 THE COURT: Mr. Terry?

19 MR. TERRY: Thank you, Judge.

20 Despite your experiences and your background -- 22 PROSPECTIVE JUROR SCHROEDER: Yes, sir.

23 MR. TERRY: -- I guess -- and correct me if I'm wrong, but what you were just trying to say was you have to look and wait and see all the facts that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000713 Volume 1

1 are going to be presented today before you make a decision on anything.

3 PROSPECTIVE JUROR SCHROEDER: That's true.

5 MR. TERRY: And you will follow the law given to you by the judge, despite what biases you bring in?

8 PROSPECTIVE JUROR SCHROEDER: That is true.

10 MR. TERRY: No further questions, Your Honor.

12 THE COURT: Mr. Sparks?

13 MR. SPARKS: Briefly.

14 Mr. Schroeder, the bottom line is you could be fair, could you not?

16 PROSPECTIVE JUROR SCHROEDER: I could be fair, yes, sir.

18 MR. SPARKS: Thank you.

19 THE COURT: All right. Now you may go.

20 Have a good lunch. We'll see you back about 1:15.

21 (Prospective Juror Schroeder exits the courtroom.)

23 (Prospective Juror Rodriguez enters the courtroom and takes the stand.)

25 THE COURT: Ms. Rodriguez, if you could

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000714 Volume 1

1 come forward and have a seat in the chair right next to me. We've got a microphone there. That way everyone can hear what you have to say.

4 Mr. Terry?

5 MR. TERRY: Ms. Rodriguez, looking back at my notes, I see -- I remember that Mr. Plummer had represented you in the past, correct?

8 PROSPECTIVE JUROR RODRIGUEZ: Uh-huh.

9 Yes.

10 MR. TERRY: Okay. And it was in regards to a business deal or some sort of business litigation?

13 PROSPECTIVE JUROR RODRIGUEZ: Yes.

14 MR. TERRY: Okay. What kind of matter?

15 PROSPECTIVE JUROR RODRIGUEZ: A fire.

16 MR. TERRY: A fire?

17 PROSPECTIVE JUROR RODRIGUEZ: Yes.

18 MR. TERRY: In?

19 PROSPECTIVE JUROR RODRIGUEZ: In a building.

21 MR. TERRY: Okay. And what happened?

22 PROSPECTIVE JUROR RODRIGUEZ: Well, we had some people working, doing work for this company.

24 We sent the guys over there, and a fire occurred.

25 MR. TERRY: Okay.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000715 Volume 1

1 PROSPECTIVE JUROR RODRIGUEZ: But, you know, we don't think it was our fault, the guy's fault, you know; but, you know, we left it in his hands and he took care of it.

5 MR. TERRY: Okay. So basically someone was accusing you or somebody sued you -- 7 PROSPECTIVE JUROR RODRIGUEZ: Yes.

8 MR. TERRY: -- based on this fire?

9 PROSPECTIVE JUROR RODRIGUEZ: Yes.

10 MR. TERRY: They said that your people started it?

12 PROSPECTIVE JUROR RODRIGUEZ: Yes, yes.

13 MR. TERRY: Got you.

14 Based upon Mr. Plummer's representation of you in that case -- 16 PROSPECTIVE JUROR RODRIGUEZ: Uh-huh.

17 MR. TERRY: -- would you come into the courtroom today with a bias more towards Mr. Plummer because he helped you out in that situation, versus being able to listen to the facts and judge it on that basis?

22 PROSPECTIVE JUROR RODRIGUEZ: No. I -- I wouldn't. I would see both sides, you know; and then I would go from there. Then I would decide, you know.

25 I wouldn't -- I would be fair, you know.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000716 Volume 1

1 MR. TERRY: Okay. No further questions, Your Honor.

3 THE COURT: Mr. Sparks?

4 MR. SPARKS: Yes, sir.

5 Ms. Rodriguez, when I spoke to you earlier, I was under the impression, when you were sitting out here, that you stated, having a relationship with Mr. Plummer, you didn't think it would be in your best interest to sit on this jury.

10 Was I mistaken?

11 PROSPECTIVE JUROR RODRIGUEZ: Okay.

12 Can you explain it again, the question?

13 MR. SPARKS: Yes, ma'am.

14 When you were sitting out here -- 15 PROSPECTIVE JUROR RODRIGUEZ: Uh-huh.

16 MR. SPARKS: -- after you indicated you knew Mr. Plummer and he had been your attorney, when I got up and I started asking about the people who said they knew some of the people -- 20 PROSPECTIVE JUROR RODRIGUEZ: Yes.

21 MR. SPARKS: -- you indicated that -- in my opinion, that you thought that in this particular case, since he had previously represented you, you would not be a good juror in this particular case.

25 PROSPECTIVE JUROR RODRIGUEZ: I didn't

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000717 Volume 1

1 say I wasn't a good juror. You know, I -- maybe -- you know, the way I said it -- 3 MR. SPARKS: Not in terms of good, meaning the quality of your person, but maybe based upon having a prior relationship may give you a predisposition toward a person who was previously representing you, particularly in a case involving a fire.

9 PROSPECTIVE JUROR RODRIGUEZ: Uh-huh.

10 Well, you know, like I said, it's just -- you know, I have to see both sides, you know, to -- 12 MR. SPARKS: Yeah. Yes, ma'am.

13 PROSPECTIVE JUROR RODRIGUEZ: -- I mean, to -- to say my -- you know, my opinion.

15 MR. SPARKS: But can I ask you this question?

17 PROSPECTIVE JUROR RODRIGUEZ: Yes.

18 MR. SPARKS: Having seen both sides, if you had to make a decision one way or the other with the fact that maybe, if you needed him again, if you ruled against him, your fees would go up or anything like that? Would that be of concern to you?

23 PROSPECTIVE JUROR RODRIGUEZ: No. 24 MR. SPARKS: No?

25 Would it be of concern to you if you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000718 Volume 1

1 ruled against him in this particular case that he may not want to represent you again in the future if you needed him again?

4 PROSPECTIVE JUROR RODRIGUEZ: No. I wouldn't think so because he's very professional.

6 MR. SPARKS: So with that in mind, you think that if you were selected on this jury, him having previously represented you, we wouldn't be at a disadvantage, my client and Ms. Wagner, would we?

10 PROSPECTIVE JUROR RODRIGUEZ: Okay.

11 What was that again?

12 MR. SPARKS: Would we be at a disadvantage, if you sat on this jury, having had a prevent relationship with Mr. Plummer?

15 PROSPECTIVE JUROR RODRIGUEZ: No. If -- if it was just another lawyer, I would be -- I would feel the same thing.

18 MR. SPARKS: No unusual allegiances to him.

20 PROSPECTIVE JUROR RODRIGUEZ: No. It's professional.

22 MR. SPARKS: Thank you.

23 MR. PLUMMER: No questions, Your Honor.

24 THE COURT: All right. Thank you.

25 Have a good lunch. We'll see you back about 1:15.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000719 Volume 1

1 (Prospective Juror Rodriguez leaves the courtroom.)

3 (Prospective Juror Jones enters the courtroom and takes the stand.)

5 THE COURT: Mr. Jones, if you could come forward and have a seat in this chair next to me. We've got a microphone right there. That way everyone can hear what you have to say. I know you've got a booming voice. That way we can make sure -- Mr. Plummer.

11 MR. PLUMMER: Thank you, Your Honor.

12 Mr. Jones, you're with the fire service?

14 PROSPECTIVE JUROR JONES: The City of Houston Code Enforcement.

16 MR. PLUMMER: I'm sorry. Code Enforcement?

18 PROSPECTIVE JUROR JONES: Uh-huh.

19 MR. PLUMMER: And I think you said, did you not, that you were a fire marshal?

21 PROSPECTIVE JUROR JONES: Well, I'm on call exactly this week for -- whenever there's a big fire, I've got to go out and -- you know, be the first one out with the firemen.

25 MR. PLUMMER: So after the suppression

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000720 Volume 1

1 guys leave, you go in?

2 PROSPECTIVE JUROR JONES: Correct.

3 MR. PLUMMER: Do you investigate or do you -- 5 PROSPECTIVE JUROR JONES: Make sure it's safe -- 7 MR. PLUMMER: Okay.

8 PROSPECTIVE JUROR JONES: -- for anybody else to come in.

10 MR. PLUMMER: Okay. That's -- so -- so if it's -- if the buildings's a dangerous building after the fire -- 13 PROSPECTIVE JUROR JONES: Yeah.

14 MR. PLUMMER: -- you red tag it?

15 PROSPECTIVE JUROR JONES: Yes. And I'm the one that says either you have to tear it down or fence it.

18 MR. PLUMMER: Okay. Now, before that, your background was as a fireman?

20 PROSPECTIVE JUROR JONES: No. Code Enforcement.

22 MR. PLUMMER: Code Enforcement?

23 PROSPECTIVE JUROR JONES: Inspector.

24 MR. PLUMMER: Okay. I'm sorry. I was confused.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000721 Volume 1

1 Now, I believe you said -- your information sheet said your wife's an assistant chief?

3 PROSPECTIVE JUROR JONES: Yes.

4 MR. PLUMMER: With the fire department?

5 PROSPECTIVE JUROR JONES: No, with permits. You have to go through -- if you want any permits or anything with the City, or plans, you've got to go through her department.

9 MR. PLUMMER: Okay. You -- if -- if -- it's fair to say that you have this specialized knowledge through your employment -- 12 PROSPECTIVE JUROR JONES: Uh-huh.

13 MR. PLUMMER: -- about codes and about requirements for buildings, multifamily buildings and things of that sort?

16 PROSPECTIVE JUROR JONES: Correct.

17 MR. PLUMMER: What I'm concerned about is that when we have experts give reports and testify, I can cross-examine them.

20 PROSPECTIVE JUROR JONES: Uh-huh.

21 MR. PLUMMER: But if you serve on the jury and go back there to deliberate, based on the testimony, you would end up being a secret expert that I wouldn't have a chance to talk to about your opinions before you do that.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000722 Volume 1

1 PROSPECTIVE JUROR JONES: Correct.

2 MR. PLUMMER: Do I have a reason to be concerned about that because you know all -- what you know?

5 PROSPECTIVE JUROR JONES: Well, for this trial you have a reason to be concerned because I have issues right now with my brother-in-law that's in a facility -- 9 MR. PLUMMER: Okay.

10 PROSPECTIVE JUROR JONES: -- that have -- has some issues that -- 12 MR. PLUMMER: About how they're taking care of him?

14 PROSPECTIVE JUROR JONES: Yes, yes.

15 MR. PLUMMER: Okay.

16 PROSPECTIVE JUROR JONES: And I'm, more or less, bias to that -- 18 MR. PLUMMER: Okay.

19 PROSPECTIVE JUROR JONES: -- because of those -- negligence.

21 MR. PLUMMER: Okay.

22 PROSPECTIVE JUROR JONES: Uh-huh.

23 MR. PLUMMER: So as we start this trial off -- 25 PROSPECTIVE JUROR JONES: Uh-huh.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000723 Volume 1

1 MR. PLUMMER: -- we're behind the eight ball, from your standpoint; is that right?

3 PROSPECTIVE JUROR JONES: Okay. Yes.

4 MR. PLUMMER: Okay. Thank you, sir. I appreciate your candor.

6 THE COURT: Hold on a second.

7 Mr. Terry?

8 MR. TERRY: Mr. Jones, you understand that the defendant we're dealing with in this matter is obviously totally separate from -- 11 PROSPECTIVE JUROR JONES: Correct.

12 MR. TERRY: -- the entity in which your brother-in-law is staying; is that correct?

14 PROSPECTIVE JUROR JONES: Uh-huh.

15 MR. TERRY: Okay. So, you know, what might be -- whatever they were doing that you don't see as right with your brother-in-law obviously, you know, might not be the fact with the defendant we're dealing with in this case?

20 PROSPECTIVE JUROR JONES: Correct.

21 MR. TERRY: You understand they're separate?

23 PROSPECTIVE JUROR JONES: Uh-huh.

24 Uh-huh.

25 MR. TERRY: So would you be able to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000724 Volume 1

1 listen to the facts as they're presented by the evidence that comes from the stand and make your -- make a decision as regards to what you hear instead of what's happening to your brother-in-law? Would you be able to do that?

6 PROSPECTIVE JUROR JONES: It would be hard. It would be hard.

8 MR. TERRY: I understand it might be hard.

10 PROSPECTIVE JUROR JONES: Yeah.

11 MR. TERRY: I mean, there's going to be a lot of hard decisions to be made during this trial.

13 But would you be able to listen to the evidence and make your decision based on that evidence and not what's going on with your brother-in-law?

16 PROSPECTIVE JUROR JONES: I could try.

17 I could try. But I have to be honest with you, I mean, it's just a situation now that when -- let me give you this -- what's happening: The facility -- he had an infection on his toes. The doctor had to cut them off.

21 Six months later, infection up his leg, had to cut off up to his knee.

23 And right now, between my wife and myself, we're going through some changes. I don't know if I could be fair to either side right now, going

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000725 Volume 1

1 through what I'm going through right now.

2 MR. TERRY: Okay. So I guess you're not fair to either side, meaning -- I mean, you have biases on both sides?

5 PROSPECTIVE JUROR JONES: Right, right now, because -- 7 MR. TERRY: So it's not just you're behind the eight ball as far as the defendants; as far as the plaintiff, we're behind the eight ball, as well?

10 PROSPECTIVE JUROR JONES: Yeah, correct, both sides.

12 MR. TERRY: No further questions, Your Honor.

14 THE COURT: Mr. Sparks?

15 MR. SPARKS: Yeah.

16 Mr. Jones, the concerns you have about your brother-in-law -- 18 PROSPECTIVE JUROR JONES: Uh-huh.

19 MR. SPARKS: Was he diabetic?

20 PROSPECTIVE JUROR JONES: Yes.

21 MR. SPARKS: And that disease sometimes lends towards individuals having to have amputations?

23 PROSPECTIVE JUROR JONES: Correct.

24 MR. SPARKS: Certainly no situation with there being a fire at the facility, to your

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000726 Volume 1

1 knowledge?

2 PROSPECTIVE JUROR JONES: No fire, that's correct.

4 MR. SPARKS: So to the degree that this deals with injuries related to a fire versus something that's sort of maybe a genetic malfunction or a disease giving rise to the amputation, is there any way you could be in a position to set your personal situation with your brother-in-law aside from the reality that we're going to try to present based on the facts of this case?

12 PROSPECTIVE JUROR JONES: Well, in my opinion, it was negligence on his part, also. It wasn't a fire, but it was the way they was taking care of him.

15 He wasn't properly cared for.

16 MR. SPARKS: Okay.

17 PROSPECTIVE JUROR JONES: And that's why right now is -- I wouldn't want to put myself in a position to swear it either way because of the issues in my mind and what I'm thinking about the situation.

21 MR. SPARKS: Okay. Okay. More of an emotional versus professional?

23 PROSPECTIVE JUROR JONES: Correct, correct.

25 MR. SPARKS: But if, in fact, you were

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000727 Volume 1

1 selected to the jury as a professional -- 2 PROSPECTIVE JUROR JONES: Uh-huh.

3 MR. SPARKS: -- you could separate the two? Fair enough?

5 PROSPECTIVE JUROR JONES: I could try, but I -- I couldn't be for sure.

7 MR. SPARKS: Thank you.

8 PROSPECTIVE JUROR JONES: Uh-huh.

9 THE COURT: Thank you for your time.

10 Have a good lunch. We'll see you back at 1:15.

11 (Prospective Juror Jones leaves the courtroom.)

13 (Prospective Juror Schuman enters the courtroom and takes the stand.)

15 THE COURT: Ms. Schuman, if you could come forward and have a seat in this chair next to me. We've got a microphone right there. That way everyone hears what you tell us. Right up here.

19 Mr. Terry?

20 MR. TERRY: Thank you.

21 Ms. Schuman, looking back on my notes, I saw something that I wanted to ask you some questions about.

24 PROSPECTIVE JUROR SCHUMAN: Sure.

25 MR. TERRY: And that is your responses

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000728 Volume 1

1 when I was asking you about corporate responsibility and individual responsibility.

3 And from my notes, it looks like, I guess, that you are in agreement that -- I guess you have a bias towards the individual as opposed to a company, meaning you would side more with an individual and -- in protecting their assets versus holding a company responsible? Do you recall that line of questioning?

10 PROSPECTIVE JUROR SCHUMAN: I do. I do.

12 MR. TERRY: Okay. And I believe my notes are everywhere; so I'm trying to get some clarification.

15 PROSPECTIVE JUROR SCHUMAN: I don't know that -- "bias" seems such a strong term for me. It's -- I'm just of the opinion that, you know, that's the reason that most companies incorporate, is to protect themselves from that personal liability.

20 And it's not -- I really -- it's that punitive thing. I mean, you're punishing someone individually for what might have fallen under the purview of their corporate responsibilities.

24 MR. TERRY: Okay. So no matter what amount of evidence that I can show to you as far as the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000729 Volume 1

1 individual's concerned, you have this in the back of your mind that, look, you know, the company's the one who's going to be responsible, it's not going to be the individual, and I'm not going to hold them responsible?

5 PROSPECTIVE JUROR SCHUMAN: I -- it's not no matter what. I really would look at the evidence.

8 But I do -- I mean, with my experience practicing law, I don't -- not a lot in civil, criminal attorney -- but I spent about 11 months -- that's all I could last in the civil firm -- because a lot of the time, it was just how much money can we get, how much money can we get? And I'm just very sensitive, you know.

15 If the corporation failed, believe me, I think they should be held responsible. I firmly feel that way with the climate going on now.

18 But that individual, whether it's the CEO, you know, financial officer or whatever it is, you know, how much -- how much do you hold them personally liable based on -- based on the -- the obligations, responsibilities, liabilities of the corporation?

23 MR. TERRY: Okay. So when I'm making that argument as opposed to the individual, I'm already -- I'm starting behind? I'm already losing that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000730 Volume 1

1 race as the plaintiff?

2 PROSPECTIVE JUROR SCHUMAN: I hate to say it that way because I want to be fair. I want to respect what the judge says, what the law is, what the evidence shows. I -- you know, I -- I've kind of always wanted to be known as the fair-minded attorney. I try to be reasonable.

8 But personally, take my -- I'm not here as an attorney. Yeah. I have a hard time punishing someone individually because I think their intent was to incorporate themselves to protect against that. But I'm not going to say I can't do it if I'm instructed.

13 MR. TERRY: But you -- again, your attorney aside, your attorney hat's off and your individual hat's on, as far as my arguments against liability on the individual, I'm already behind that race without hearing anything else?

18 PROSPECTIVE JUROR SCHUMAN: My opinion, you're behind -- you're running -- you're barred by my opinion, but -- but I would do my best to put my personal opinion aside. And that's really the best I can do. I'm -- I'm -- you know, it -- if it's -- if it's fair damages, pain and suffering, injuries -- I mean, this is a hard case. It's breaking my heart already looking at -- you know, even the one who's the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000731 Volume 1

1 guardian, but the mom -- I mean, you know, the whole mother thing, losing your children, having them injured, I don't care what age they are, you can tell I get emotional about it. So I can feel for them, and I think they should be compensated.

6 But the question is by whom and how much and why.

8 But -- but that punitive part of it -- I'm a criminal defense attorney. You know, the punishment thing is hard for me to -- it has to be legitimate, fair, and reasonable; and that's probably the best I can give you guys.

13 MR. TERRY: No further questions, Your Honor.

15 THE COURT: Mr. Sparks?

16 MR. SPARKS: Briefly, Judge.

17 You indicated you're a criminal defense lawyer; is that correct?

19 PROSPECTIVE JUROR SCHUMAN: Uh-huh.

20 MR. SPARKS: And people are held responsible criminally all the time for acts involving corporations. You're aware of that; is that fair?

23 PROSPECTIVE JUROR SCHUMAN: (Nods head.)

25 MR. SPARKS: And no one's asking you to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000732 Volume 1

1 make that type of assessment here.

2 PROSPECTIVE JUROR SCHUMAN: Right.

3 MR. SPARKS: What we're asking you in a nutshell is whether or not your training and your professionalism can be set aside to listen to the evidence and make a decision?

7 Now, the judge is going to give you an instruction; but he can't instruct you how to rule or render your opinion with 11 other people.

10 PROSPECTIVE JUROR SCHUMAN: Correct.

11 MR. SPARKS: And what we're concerned about is whether or not your experiences and your professional life could impact upon 11 other people based upon your misgivings about punitive damages.

15 And if that's the case, just let us know, because it might be appropriate in terms of your feelings across the street; but over here it's just a different animal. And we want to make sure that we're not subjecting the jury panel to, as Mr. Plummer would say, an additional expert where we don't get a chance to cross-examine and you're back there influencing the jury.

23 PROSPECTIVE JUROR SCHUMAN: And I would do my best to do that. I would tell you that I can do that, put all that aside and listen to what I'm

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000733 Volume 1

1 instructed -- what the law is, what the instructions are, what the burdens are, more importantly the facts, how the facts fall, you know, do they establish the -- the liability.

5 Of course I'm going to try to do that, because I -- I -- I take an oath. And again, I try to be fair and reasonable.

8 As far as influence? You know, I've interviewed my jurors postverdict sometimes. You never know who that influence is going to be. And -- and, you know, if there's an opinionated person, doesn't matter -- people are -- if people are followers, they're going to follow someone who speaks up and, you know, may exert more of a conversation or position.

15 I can't say I'm not going to be that person, if, in fact, the -- the evidence, the facts, the testimony, you know, pushes me to one side. It -- I'm going to stand up for what I believe, and that you can count on. But I will do it within the limits of the law.

21 I'm not going to use my background or experience, you know; and -- and I do have my opinions on certain things. Like I say, you know, working in that civil firm was hard for me because to me they lacked an element of fairness.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000734 Volume 1

1 It wasn't that the burdens weren't as strong. I couldn't hold the -- you know, the adversaries to the same standards that you do in a criminal courtroom. But I could put that aside.

5 MR. SPARKS: But would you be trying to hold us to a higher standard since it's a civil case similar to what you -- 8 PROSPECTIVE JUROR SCHUMAN: No. I understand those differences. And I understand what positions you are all in and I respect that. And I could also see all of your professionalism and your dedication to the case and those two ladies sitting there.

14 So I -- I would hold you to -- to whatever burden you need to prove.

16 MR. SPARKS: Thank you.

17 THE COURT: Mr. Raval?

18 MR. RAVAL: No questions, Your Honor.

19 THE COURT: You understand -- obviously we didn't want to talk about it during the panel examination. When we're talking about punitive damages, actually in Texas we're talking about exemplary damages and that in Texas there's a higher standard of proof to -- to merit award of exemplary damages than preponderance of the evidence.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000735 Volume 1

1 You've heard of us talk about preponderance of the evidence during the panel examination.

4 But actually, in order to prove liability for exemplary damages and to prove the amount of exemplary damages, the claimant has to establish their right to any amount by clear and convincing evidence, not simply preponderance of the evidence.

9 Understanding that there's a higher level of standard of proof for exemplary damages, will you be able to follow my instructions, look at the evidence, and make a decision as to each defendant on their own, whether they should be liable for exemplary damages and, if you decide they should be, the amount of exemplary damages based on that standard of proof?

16 PROSPECTIVE JUROR SCHUMAN: I -- I will make every effort, absolutely. I'm not going to say no. I'm going to interpret and then apply -- interpret the facts and evidence and then apply your instructions, knowing the clear and convincing evidence standard.

21 THE COURT: All right. Thank you.

22 PROSPECTIVE JUROR SCHUMAN: That's the best that I could do.

24 THE COURT: Have a good lunch. We'll see you back at 1:15.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000736 Volume 1

1 PROSPECTIVE JUROR SCHUMAN: Thank you.

2 (Prospective Juror Schuman leaves the courtroom.)

4 (Prospective Juror McCraw enters the courtroom and takes the stand.)

6 THE COURT: Mr. McCraw, if you could come forward and have a seat in this chair here next to me, please.

9 All right. Mr. Terry.

10 MR. TERRY: Thank you, Judge.

11 Mr. McCraw, looking back on my notes, some of the questions I asked, I want to talk to you a little bit about that.

14 And they're kind of all over the place; but when I was asking you questions in regards to individuals and then corporations and holding individuals responsible, you said that was something you -- you couldn't do.

19 Did I remember that correctly?

20 PROSPECTIVE JUROR MCCRAW: That is pretty adamant.

22 MR. TERRY: Okay. So that's a bias that you walked in here today; and no matter what I show to you, no matter what amount of evidence, that's something that is not going to change your mind?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000737 Volume 1

1 PROSPECTIVE JUROR MCCRAW: The whole time I'm going to be sitting here thinking blame is a matrix. It's not something that falls on any single -- especially not a person.

5 MR. TERRY: Okay. So there's no amount of evidence I can show you -- you're going to think what you're going to think, and that's it?

8 PROSPECTIVE JUROR MCCRAW: Pretty much.

9 That's my only concern. That's my only bias, is that I'm -- I've -- I'm pretty set on that belief.

11 MR. TERRY: So you really wouldn't be fair for this trial?

13 PROSPECTIVE JUROR MCCRAW: Correct.

14 MR. TERRY: Okay. No further questions, Your Honor.

16 THE COURT: Mr. Sparks?

17 MR. SPARKS: Thank you, sir.

18 I mean, I didn't have any questions, sir.

20 THE COURT: All right. Mr. Raval?

21 MR. RAVAL: Do you think you can make a decision in this case, if you're on this jury, based on the evidence that you see and hear in this case or not?

24 PROSPECTIVE JUROR MCCRAW: I would actually go as far as to say that if I were a part of

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000738 Volume 1

1 the jury, I would make it -- I mean, if I -- if I make the jury, it's going to -- my bias is going to become part of me as a juror and it may bleed over to others, as well 5 MR. RAVAL: Thank you for your honesty.

6 THE COURT: Mr. McCraw, you understand that as a citizen you have the same right to a jury trial as every -- the parties in this case? You understand that?

10 PROSPECTIVE JUROR MCCRAW: Yeah.

11 THE COURT: You understand that we created the jury system over 800 years ago because we decided that having one person make these decisions was more dangerous than having 12 citizens bring their own common sense to a decision to decide what the facts are?

16 You understand that?

17 PROSPECTIVE JUROR MCCRAW: Yes.

18 THE COURT: Okay. Do you understand it's important in order for the system to work to make sure that everyone gets that fair shot, that we have people who will come in and lay their biases aside and will listen to the evidence and make a fair and just decision on whatever dispute is presented to them?

24 PROSPECTIVE JUROR MCCRAW: And I'm comfortable with doing that in most every aspect of my

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000739 Volume 1

1 life except for when it comes to delivering awards, especially monetarily, on something that is this complicated as blame.

4 I mean, I would have no qualms in a lot of other trials; but it would be -- it would be a -- it wouldn't be easy for me to put myself in the position that I would need to be in on a case like this in order to deliver fairness.

9 And that's the -- that's the -- the brilliance of the system is the fairness; and that's the only reason why I'm speaking up, saying I don't -- I want a fair trial for everybody, and I just don't think that -- it would be a challenge to set aside the bias and -- and be as fair as I would need to be.

15 THE COURT: Okay. Thank you. Have a good lunch. We'll see you back at 1:15.

17 (Prospective Juror McCraw leaves the courtroom.)

19 THE COURT: All right. Mr. Terry, any motions to strike? Just give me the numbers, and we'll argue them, if we need to, afterwards.

22 MR. TERRY: 6, 25, 41.

23 THE COURT: And, Mr. Sparks, any -- any additional motions to strike?

25 MR. SPARKS: Yes, Judge. 5 and 25, 41.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000740 Volume 1

1 THE COURT: Any others?

2 MR. SPARKS: No, sir.

3 THE COURT: All right. Mr. Plummer?

4 MR. RAVAL: Number 3 and Number 14.

5 THE COURT: Okay. All right. All right. We'll start here.

7 MR. RAVAL: And, Your Honor, also Number 9 and Number 12.

9 MR. PLUMMER: And, Judge, can we talk about Judge Elrod?

11 THE COURT: She -- we're not going to get to her, based on the number of folks here that -- you know, I've got one, two, three, four, five, six, seven -- even if I granted the hardships, we're not going to get to her.

16 MR. PLUMMER: My gut is she'd love to serve, but -- 18 THE COURT: There was never anything said during voir dire that would even approach a reason to strike her.

21 MR. PLUMMER: No, no, no. That's not what I'm saying. She would love to serve because she's part of the system. She would love to see it from this side. So I was going to discuss that with the Court.

25 But, you know, I'd love to have her on

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000741 Volume 1

1 the jury, to be honest.

2 THE COURT: Well, unfortunately, we're not going to get to her based on the motions to strike that I have.

5 MR. PLUMMER: Okay.

6 THE COURT: Let's start here: First of all, the Plaintiffs and Intervenors have moved to strike 5, 6, 25, and 41. Do y'all oppose any of those, Mr. Plummer; or are there any that you agree to? Make it easier.

11 MR. RAVAL: We can agree to Number 41 and Number 5.

13 THE COURT: All right. And the Defendants have moved to strike 3, 9, 12, and 14.

15 Mr. Terry and Mr. Sparks, are there any of those that you can agree to?

17 All right. Hearing no argument, we'll start first with Plaintiff's motion to strike Number 6.

19 Mr. Terry?

20 MR. TERRY: Yes, Your Honor. This was Ms. DeSoto, who was represented by Mr. Plummer's firm.

22 I believe when we asked her on the stand, she said that she would be leaning towards Mr. Plummer.

24 THE COURT: Mr. Plummer or Mr. Raval, whoever's going to argue.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000742 Volume 1

1 MR. RAVAL: Your Honor, she did indicate that she believed she could be fair.

3 THE COURT: All right. 6 is granted.

4 Next is 25 on the Plaintiff's side.

5 MR. TERRY: Yes, Your Honor. That was Mrs. Schuman who we just heard from.

7 And I know she was kind of all over the board, but I believe she did state at one point -- you know, when I asked her what -- am I going to be behind, losing this race?

11 And she said, yes, personally from my opinions, yes, you will be.

13 And really, that's what we're here for, Your Honor, is her opinions and her bias. You know, is that something she's really going to be able to set aside and listen to the facts? I doubt it.

17 THE COURT: 25 is denied.

18 All right. Defendant's motion to strike Number 3. Mr. Raval.

20 MR. RAVAL: Your Honor, Mr. Dixon, Number 3 indicated in answer to a question that he could not be fair based on the facts as he heard them.

23 THE COURT: That one's denied.

24 Number 9?

25 MR. RAVAL: Number 9 is Mr. Schroeder.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000743 Volume 1

1 He indicated that he knew one of the people who will be testifying as an expert witness. He also said that he knew -- had knowledge of the statutes and the codes and that he would not be able to put that evidence aside.

5 It's part of what he knows.

6 He also indicated that he would have required -- I believe he indicated that he would require sprinklers in a home like this. That's another indication that he would not be able to be unbiased in this case.

11 THE COURT: Response?

12 MR. TERRY: Your Honor, when I asked him, given your background and your history, would you be able to set that aside and listen to the facts and make your decision based upon those facts, he answered yes.

17 THE COURT: All right. 9 is granted.

18 MR. SPARKS: Judge, I -- 19 THE COURT: 9 is granted. I mean, I understand you've got some more argument; but I listened to him -- 22 MR. SPARKS: I respect that.

23 THE COURT: -- and I'm trying to give y'all at least a little bit of a break here. But I won't cut you off --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000744 Volume 1

1 MR. SPARKS: No problem.

2 THE COURT: -- in the future. I'm just working here.

4 Number 12, Mr. Raval?

5 MR. RAVAL: Number 12: Mr. Jones indicated that because of the situation with his brother-in-law and his special needs that he had some concerns about bias. And though he did say he was bias towards both sides, I'm concerned that his personal experience with home healthcare would lead him to be bias in this case.

12 Additionally, he has specialized knowledge about investigating postfire loss; and though he works more on the code -- or used to work more on the code enforcement side, his specialized knowledge may be carried into the jury room.

17 THE COURT: Response?

18 MR. TERRY: Again, Your Honor -- again, when I asked him whether or not he could set that aside and deal with the facts and make a decision based on the facts that he heard here, I believe he said yes, that was a possibility he could.

23 And I understand he went both ways. I said, "Are we both behind the eight ball?" He said, "Yes." So I don't think there's a bias, that he can go

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000745 Volume 1

1 one way or the other here.

2 THE COURT: Mr. Sparks?

3 MR. SPARKS: My feelings on this is that he was struggling, just like Venireman 25 was, yet he said he could be fair; and I think he can be.

6 THE COURT: Thank you.

7 12 is granted.

8 14, Mr. Raval?

9 MR. RAVAL: Your Honor, Juror 14, Ms. Harriss, has indicated in response to questioning that based on the facts as she heard them this morning, she would hold the corporation and/or the individual liable. She has indicated her bias and would not be able to be an unbias juror in this case.

15 THE COURT: Response?

16 MR. TERRY: Your Honor, I don't remember that questioning. In fact, I specifically -- if I recall correctly, Mr. Plummer asking, "Look, can everyone here be fair, given the particular facts and the situations." And they said yes. So I just don't remember when she said that, Your Honor.

22 THE COURT: Mr. Sparks?

23 MR. SPARKS: Judge, I didn't get anything from Ms. Harriss that I thought that she would be bias toward either side, Judge.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000746 Volume 1

1 THE COURT: All right. 14 is denied.

2 All right. All right. We need to talk about Juror Number 21 whose mother-in-law is ill and may need to be taken off of life support.

5 In light of the fact -- first of all, before I do that -- so we've got Jurors Number 5, 6, 9, 12, and 41 are struck for cause.

8 Does anybody object to me giving a hardship strike to Juror Number 21?

10 MR. RAVAL: No, Your Honor.

11 MR. TERRY: Your Honor, we like him. I mean, he's a good juror.

13 MR. THWEATT: What specifically did he say to the Court about his -- 15 THE COURT: His mother-in-law is gravely ill and that it looks like they may be taking her off of life support on Wednesday. And I told the jury we'd be going at least until Thursday. The case will probably go to deliberations Thursday afternoon.

20 MR. TERRY: That's fine, Your Honor.

21 MR. SPARKS: Judge, I think, under the circumstances, I'd be the last to oppose it.

23 THE COURT: All right. So 21 is also struck.

25 So we have six jurors struck for cause,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000747 Volume 1

1 5, 6, 9, 12, 21, and 41.

2 41's outside the strike zone, anyway; so that's five jurors within the strike zone. Your current list should go up through and include Juror 29.

5 Double-check my math. Y'all need to get your preemptory strike lists into Di or Alex, whoever's up here, by 1:15.

8 (Lunch recess) 9 THE COURT: Let's bring the jury in, please.

11 (Prospective jury panel enters the courtroom.)

13 THE COURT: Thank you. Please be seated.

15 Ladies and gentlemen, thank you for being so prompt and getting back so quickly. I do appreciate it.

18 The clerk will now call the names of the jurors who will serve on our trial jury today. As your name is called, please come forward. We've got a swinging door right there, right there, and right there (indicating). Come forward up around and into the jury box, and please sit in the order in which you are called.

25 THE CLERK: The first person is

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000748 Volume 1

1 Maria DeLeon, Ameenah Campbell, Luke Reed, Kendrah Billings, Felicia Chuang, Oliver Talton, Robert -- I'm sorry -- Cecilia Taft, Robert Horvath, Martin Pape, Jacqueline Murphy, Betty Zavala, Brandon Farrell.

5 THE COURT: All right. Ladies and gentlemen, I need to administer another oath to you.

7 Will you please raise your right hands?

8 (Jury sworn by the Court.)

9 THE COURT: All right. Thank you.

10 Ladies and gentlemen of the panel, I want to thank you once again for taking time of out of your busy day to come forward and perform your service as jurors.

14 We know it is not always convenient for everyone, but it is crucial that we have good people like you and good people like the members of the trial jury who will come down and perform this service for your fellow citizens.

19 In Harris County we have a one jury service call rule, which means once you are called from the jury assembly building to a particular court, if you are not selected for the trial jury in that court, you have completed your jury service and will be released and can leave.

25 We have work release forms issued by

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000749 Volume 1

1 the District Clerk's Office. It's an official piece of paper showing you were here in the 269th Judicial District Court today in case you've got a subordinate, a boss, a significant other who needs proof that you were here instead of playing hooky, we've got official government paperwork that, yes, you did spend the day in the 269th District Court. Those work release forms will be available to anyone who needs them out in the hallway after you're excused.

10 I'd also like to extend my welcome to my good friend and fellow colleague on the Bench, Judge Elrod, Juror Number 46.

13 Judge Elrod's one of the really, really good judges in the state of Texas. She is a judge of the United States Court of Appeals for the Fifth Judicial Circuit, which means she's really, really important. But she came down here today just like every one of you to perform her service as a citizen; and I think that's important for y'all to recognize, that when it comes to jury service -- I don't think very many of you knew that she was a judge.

22 She was just like y'all, and I think that's a credit to her, I think it's a credit to my profession as a judge, but I think it's also a credit to you that she wanted to be a part of this as much as

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000750 Volume 1

1 you-all were a part of this.

2 So, Judge Elrod, thank you for coming down and gracing our courtroom with your wonderful presence. It's always a joy to have you.

5 With that, you're all excused. Thank you.

7 (Prospective Jury panel excused.)

8 THE COURT: Thank you. You may be seated.

10 All right. First of all, ladies and gentlemen, you should find a juror badge on the rail in front of your seat. You're about to hear some instructions I'm going to give you that require some formalities that people need to observe when they're interacting with jurors.

16 In order for them to know that you are a juror so that they know what to do, we need you to wear those juror badges whenever you're in the courthouse or really even whenever you're in the vicinity of the courthouse. That way no one accidentally slips up.

22 You should have also found a notebook in your chair when you went to your chair. That notebook has pen, paper, and a pamphlet in it. The pamphlet has some instructions I'm going to read to you.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000751 Volume 1

1 The pamphlet also has court contact information for you-all so if you need to contact us, for whatever reason, you know how to contact us. So hold on to that pamphlet. It is yours to keep.

5 I'm going to read those instructions to you. You can listen to me read them to you; or you can read along, as you like. I may intersperse some editorial commentary as we go along.

9 JURY INSTRUCTIONS 10 THE COURT: Members of the jury, you have been chosen to serve on this jury. Because of the oath you have taken in your selection for the jury, you become officials of this court and active participants in our justice system.

15 I'm going to read these instructions to you. Some of them have -- you have heard before and some are new, so just be patient and bear with em.

18 Number 1, turn off all phones and other electronic devices. Now, silent mode is not good enough. It needs to be turned off.

21 While you are in the courtroom and while you are deliberating, do not communicate with anyone through any electronic device. For example do not communicate by phone, text message, e-mail message, chat room, blog, or social networking Web sites such as

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000752 Volume 1

1 FaceBook, Twitter, or MySpace.

2 Do not post information about the case on the Internet before these court proceedings end and you are released from jury duty. Do not record or photograph any part of these court proceedings. It is prohibited by law.

7 2, to avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may exchange casual greetings like "hello" and "good morning." Other than that, do not talk with them at all. They have to follow these instructions, too; so you should not be offended when they follow the instructions.

15 3, do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case and do not do any favors for them. This includes favors such as giving rides and food.

19 4, do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means, including by phone, text message, e-mail message, chat room, blog, or social networking Web sites such as FaceBook, Twitter, or MySpace.

24 Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000753 Volume 1

1 the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court.

4 5, do not discuss this case with anyone during the trial, not even with the other jurors, until the end of the trial. You should not discuss the case with your fellow jurors until the end of the trial so that you do not form opinions about the case before you have heard everything.

10 After you have heard all the evidence, received all my instructions and heard all the lawyers' arguments, you will then go to the jury room to discuss the case with the other jurors and reach a verdict.

14 6, do not investigate this case on your own. For example, do not try to get information about the case, lawyers, witnesses, or issues from outside this courtroom, go to places mentioned in the case to inspect the places, inspect items mentioned in this case unless they are presented as evidence in court, look anything up in a law book, dictionary, or public record to try to learn more about the case, look anything up on the Internet or try to learn more about the case -- that means no Googling or Web searching -- or let anyone else do any of these things for you.

25 This rule is very important because we

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000754 Volume 1

1 want a trial based only on evidence admitted in open court. Your conclusions about this case must be based only on what you see and hear in this courtroom because the law does not permit you to base your conclusions on information that has not been presented to you in open court.

7 All the information must be presented in open court so the parties and their lawyers can test it and object to it. Information from other sources, like the Internet, will not go through this important process in the courtroom.

12 In addition, information from other sources could be completely unreliable. As a result, if you investigate this case on your own, you could compromise the fairness to all parties in this case and jeopardize the results of this trial.

17 7, do not tell other jurors about your own experiences or other people's experiences. For example, you may have special knowledge of something in the case, such as business, technical, or professional information. You may even have expert knowledge or opinions, or you may know what happened in this case or another similar case.

24 Do not tell the other jurors about it.

25 Telling other jurors about it is wrong because it means

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000755 Volume 1

1 the jury will be considering things that were not admitted in court.

3 8, do not consider attorneys' fees unless I tell you to. Do not guess about attorneys' fees.

6 9, do not consider or guess whether any party is covered by insurance unless I tell you to.

8 10, during the trial, if taking notes will help focus your attention on the evidence, you may take notes using the pen and paper provided in your notebooks. Do not use any personal electronic devices to take notes. If taking notes will distract your attention from the evidence, do not take notes. Your notes are for your own personal use. They are not evidence.

16 Do not share or read your notes to anyone, including other jurors. You must leave your notes in the jury room or with the bailiff. The bailiff is instructed not to read your notes and to give your notes to me promptly after collecting them from you.

21 I will make sure your notes are kept in a safe, secure location and not disclosed to anyone.

23 You may take your notes back into the jury room and consult them during the deliberations, but keep in mind that your notes are not evidence.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000756 Volume 1

1 When you deliberate, each of you should rely on your independent recollection of the evidence; and you should not be influenced by the fact that another juror has or has not taken notes.

5 After you complete your deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote.

10 11, I will decide matters of law in this case. It is your duty to listen to and consider the evidence and determine fact issues that I may submit to you at the end of the trial.

14 After you've heard all the evidence, I will give you instructions to follow as you make your decision. The instructions also will have questions for you to answer. You will not be asked and you should not consider which side will win. Instead, you will need to answer the specific questions I give you.

20 Every juror must obey my instructions.

21 If you do not follow these instructions, you will be guilty of juror misconduct; and I may have to order a new trial and start this process over again.

24 This would wasted your time and the parties' money and would require the taxpayers of this

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000757 Volume 1

1 county to pay for another trial.

2 Do you understand these instructions?

3 If not, please raise your hand. I see no hands.

4 Please keep these instructions and review them as we go through this case. If anyone does not follow these instructions, tell me. 7 Now, again, I told you the pamphlet has court contact information on it; so if you need to contact us when you're away from court, you'll be able to do so. So hold on to those pamphlets.

11 I want to talk to you about how things are going to proceed.

13 You-all have had a chance to have a lunch break. The lawyers have not yet. They worked entirely through that break where y'all had a break. So after I'm done giving you these instructions, we're going to take a 30-minute break.

18 Lois, the bailiff, will show you where the jury room is. That will also give you-all an opportunity to contact family, friends, let them know that you're on the jury and to make whatever scheduling accommodations you might need to make with work or home life to adjust accordingly.

24 So rather than making people wait until the end of the day wondering in suspense whether you

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000758 Volume 1

1 were picked for the jury or not, you can call them in a few minutes.

3 How the schedule's going to proceed after that: After we come back from that break, the parties will give their opening statements. The first witness will be called.

7 We are probably going to break today around 4:30, 4:45. You're in a different building than you started out with. So you need some time to gain your bearings about where you are and whatnot. And it's been a long day, I know. Y'all were supposed to report at 8:00 a.m. this morning; so we'll break a little early.

14 Tomorrow we start at 8:30; and every day from here on out, we start at 8:30. If you are not familiar with driving into downtown at that hour, it will take you longer than you expect; so please plan your commute accordingly so you're here in plenty of time for us to start promptly at 8:30.

20 We usually take one midmorning break around the 10 o'clock hour, we take a lunch break of about an hour and 15 minutes or so, and then we take one midafternoon break around 3 o'clock or so, and then starting tomorrow and the rest of the trial we'll finish up at about 5:00 each day.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000759 Volume 1

1 I tell you that so you kind of have an idea how things are going to go, when you might be able to check in with the office or check in with family as the trial proceeds.

5 I told you out in the hallway -- and I'm serious about this -- we really do our best in this court to maximize your time, make sure that we're using your time as productively and efficiently as possible.

9 One of the things we do is the use of technology to help along with that. You may have seen in movies or plays or television series, every once in awhile in the middle of a trial for some reason or another, the lawyers and the judge have to talk to each other outside the presence of the jury.

15 Oftentimes you see it in one of two ways, either the lawyers come up to the bench and the judge huddles over with them and they whisper to each other so that the jury can't hear them or the judge excuses the jury, the jury shuffles off to the jury room for an unknown amount of time, then the bailiff gathers the jury back up and lines them back up and brings them back in.

23 Both of those methods are pretty inefficient, all the -- all things being equal. We've got some technology that helps us really make that a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000760 Volume 1

1 much more efficient process.

2 When we have those conferences outside the presence of the jury, y'all will be able to stay in the jury box, and I will turn on some white noise.

5 There are some speakers above your jury box that ordinarily project to you what's being said over the microphones.

8 When I turn the white noise on instead, you'll hear white noise. It sounds like this (indicating).

11 It's used to drown out what the lawyers and I are saying to each other. We're not doing it to annoy you or harass you or make you uncomfortable.

14 We're using it in order to speed things up. That way we're not expending extra time, y'all shuffling back and forth, wondering whether you can go use the restroom or brew another pot of coffee or anything like that. So it is a great time-saver.

19 I've had some jurors say why can't we get some music or some good tunes on it. It's not in the County budget. You know, it's a little tight right now; so unfortunately, we're stuck with the white noise.

23 But it is a great time-saver.

24 When I turn that on, y'all can stand up, if you need to, to stretch, twist around,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000761 Volume 1

1 whatever -- you know, shake the numbness out of your legs. I understand that. But I ask you not to talk because our court reporter is still trying to take down everything we're saying.

5 You'll see she has some headphones on, but she can still hear voices behind her if y'all are talking. And again, it makes her job very, very difficult if y'all are talking while we're doing that.

9 So I'd ask while you stand up and stretch during those conferences that you not talk to each other.

12 All right. We're going to take, like I said, a lunch break for the lawyers and, frankly, for me, as well, and for my court reporter. It will be about 30 minutes. It's about 1:40 now. We'll start back up at ten after 2:00.

17 So those of you who need to make some phone calls, you'll be able to make some phone calls.

19 You can do that and make whatever arrangements you need to make for the rest of the day. All right? See you in 30 minutes.

22 You can ask the bailiff a question.

23 (Jury out.)

24 (Recess.)

25 MR. THWEATT: Your Honor, for some

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000762 Volume 1

1 reason, we're having a technology problem with the laptops. We can do it the old-fashioned way if it doesn't work, but I understand that your bailiff is somewhat experienced with this.

5 THE COURT: I'm sorry. You've got -- what do you mean? You're having some technology issues?

7 MR. THWEATT: My display is not showing up on the screen, for whatever reason. I don't know why.

10 MR. PLUMMER: We can try to help you.

11 (Discussion off the record.)

12 MR. THWEATT: Your Honor, if we could have the screen.

14 THE COURT: It will come down after the jury comes in.

16 MR. THWEATT: All right.

17 THE BAILIFF: All rise.

18 (The following proceedings were had in open court, jury present.)

20 THE COURT: Thank you. Please be seated.

22 We'll now start opening statements.

23 Mr. Thweatt.

24 PLAINTIFF'S OPENING STATEMENT 25 MR. THWEATT: May it please the Court,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000763 Volume 1

1 counsel.

2 Good afternoon, ladies and gentlemen.

3 My name is Lee Thweatt, and I have the distinction of representing Ms. Jenny Wagner. And I'm going to show you a picture of Jenny.

6 That's, again, from a very early age.

7 Her mother, Ms. Patti Wagner, is here.

8 Jenny, you'll hear, is a very special person.

9 She was born back in 1973. And I know that because she's about a month younger than I am -- or about a month older than I am. Excuse me. 12 But from a very early age, she was diagnosed with cerebral palsy. She's been legally blind for all of her life. She has profound mental retardation. She's been unable to walk. She cannot feed herself. She is totally dependent upon others to care for her and has been basically for her entire life.

18 That care person and that caretaker has been her mother and, before he passed away, her father, Bob.

21 We're going to show you a picture now of Jenny in grade school. Despite her disabilities, Jenny was able to attend school. Her parents made sure that that was part of her therapy and routine.

25 And that young lady up there at the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000764 Volume 1

1 very top in the middle portion is Jenny when she was in grade school.

3 Jenny's mother and her father took her to school. That's where she received special education courses. You can see that she's in a class with disabled folks, as well.

7 And she stayed in school until she was 22 years old. She actually did -- did accomplish and receive a diploma. It's not like a diploma that you and I might expect or appreciate, but it shows that her family was committed to her and to her health and well-being.

13 This is a picture of Jenny and her father, Bob, as Jenny aged. As I said, Bob died of a heart attack back in December of 2007. And Patti and Bob were married for many, many years.

17 You'll hear about the life that they had when Patti takes the stand today.

19 I'm going to show you Jenny, as well.

20 We're going to bring her in the courtroom. She's going to be right here, and I'm going to ask Patti to come down and introduce her.

23 And -- and you've already heard that Jenny was very badly burned. She had second- or third-degree burns over about 20 to 30 percent of her

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000765 Volume 1

1 body. You'll see pictures, and you'll see Jenny herself to see exactly what the condition of her physical stature is right now. It will disturb you. I wish I didn't have to show you that, but it's part of our duty under the law that you understand exactly what she's been through.

7 And we're not going to make a huge issue of this. That's why we didn't have Jenny in here to start off with the trial. She'll be -- very briefly, so she's comfortable.

11 And her grandparents are actually here visiting from out of town to assist Patti with this trial. You'll hear they have a very close family.

14 Jenny's aunt, Joan, lives next door to Patti in an apartment out in Katy and they have a little two-bedroom apartment where the two of them spend their days.

18 I told you that until Jenny was about 22 years old she was in a public school. Once she turned 22, you'll hear Patti tell you-all that Patti and Bob were encouraged to put Jenny in a full-time residential facility.

23 I don't know how many of you have ever had the burden of caring for somebody 24/7 for over two decades, but it can be very overwhelming and -- to the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000766 Volume 1

1 point where you're not able sometimes to -- to do what's best for them.

3 And so upon that recommendation, they placed Jenny in a facility in San Antonio called The Willows. She started there in 1995. At the time, The Willows was the largest privately-held facility in the state of Texas dedicated to caring for persons with mental retardation. It's now closed.

9 But in May of 2002 Jenny was placed into Four J's Community Living Center, Inc.; and that's one of the defendants in this case.

12 Ms. Anthonia Uduma is another defendant in this case. Ms. Uduma owns 100 percent of Four J's Community Living Center, Inc. She's the president and CEO.

16 She also owns many houses here in Houston and in Beaumont and in Corpus Christi. She buys these houses on her own. She's the sole owner. And then she leases them to her company. It's over 30 houses.

21 Ms. Uduma, of course, as the president and CEO of a company that is solely dedicated to taking care of persons with mentally retarded [sic] and profound disabilities, knows who's going to be staying in those homes.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000767 Volume 1

1 One of them was located in Missouri City, and the address is 16335 Beretta Court. You will hear that that was a four-bedroom home.

4 If you were to drive by it before it burned down, you probably wouldn't have ever thought anything twice about it. It looks just like any other bedroom home in any other bedroom community. It's got a front yard and backyard and a nice wood fence. There's nothing remarkable about it at all.

10 But what is remarkable about it was that on September the 4th, 2008, after Jenny had been there since 2002 -- that's when she first moved into that residence -- a fire started there.

14 You heard some about that fire, and we're going to get very indepth into what happened.

16 But here's the basic facts: One of the resident there, a lady named Esperanza Arzola, who's also mentally retarded -- she had a known history of schizophrenia, bipolar disorder, suicidal acts, and suicidal ideations.

21 She was on antipsychotic medication.

22 She had a history of aggression towards staff who worked at Four J's and a history of property destruction and other violent actions. All of that was known to Four J's and to Ms. Uduma prior to the fire of September

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000768 Volume 1

1 the 4th, 2008. Ms. Arzola was a very deeply disturbed person.

3 Now, they're going to tell you, I'm sure, that under the law, she was her own legal guardian; and that's true. We're going to show you, though, that she was not able to care for herself.

7 She never should have had the kind of access to a cigarette lighter that she did come in fact -- in fact, come in contact with and use to start this fire.

11 You're going to hear from the staff member who was working on duty that night, September the 4th, 2008. Her name is Amuche Udemezue. I may have mispronounced that.

15 THE COURT: Mr. Thweatt, please return to the podium.

17 MR. THWEATT: I'm sorry, Your Honor.

18 She will take the stand in this case.

19 She will tell you, despite what you heard from Mr. Plummer in jury selection, that she was not properly trained on how to respond to a fire.

22 The pictures that we're going to show you in this case -- and we'll go through them right now, just a few of them, just to orient you -- this is a map of the house (indicating) taken from a Houston arson

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000769 Volume 1

1 investigation.

2 And you can see there how closely the residents there [sic]. Esperanza Arzola, that's where the fire started. Then you have Tanya James. That's Mr. Shelton Sparks' client, for all -- for all intents and purposes. She died in the fire.

7 Then we have Jenny. That's Jenny's room (indicating), the living room, and then there's another lady named Alicia Campbell.

10 Ms. Campbell and Ms. Esperanza Arzola were both able to walk. All four of them were mentally retarded. Tanya James and Jenny Wagner were the most severely disabled in that home.

14 Ms. Amuche Udemezue will tell you, she placed everybody in bed. Earlier that evening, Ms. Arzola became upset at Amuche, for reasons that you'll hear about. She kicked out a window. She tried to run away. She was basically misbehaving.

19 And when I say "misbehaving," I mean in the sense that she's not able to, in our estimation, appreciate what she was doing.

22 She then took a cigarette lighter, lit her mattress on fire. The house was equipped with smoke detectors.

25 You'll hear how Amuche basically

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000770 Volume 1

1 responded. She never rendered assistance to Jenny or to Tanya. That's undisputed. She may have explanations for that. Maybe Ms. Uduma or Four J's, Incorporated, will have explanations for that.

5 But there's no question that Jenny Wagner laid in her bed while smoke and flame locked around her and she was completely helpless in that bed.

9 The only reason she survived was because the fire department got there in time to rescue her.

12 Ms. James survived for about 15 or 16 hours in critical condition at Memorial Hermann Hospital, and then she succumbed to her injuries.

15 My client, Jenny, was in the hospital at Memorial Hermann for almost 30 days in critical condition. You will hear that she had extraordinary care there.

19 She had skin graft surgeries. You'll here about it. It's -- it's something I wish I didn't have to describe.

22 She was then discharged back into her mother's care, and Patti took her home. Patti shuffled her back and forth between doctors to care for her burns and for her injuries.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000771 Volume 1

1 Patti will tell you that Jenny received so much in the way of medication, morphine, hydrocodone, that she was addicted to it by the time she was discharged. She went through withdrawals just like you hear about street addicts going through. She went through sweats.

7 Jenny no longer sleeps in her bed in her apartment because her mother will tell you it reminds her of what happened in that room that night.

10 She sleeps, instead, now, in a recliner.

11 I think probably the most remarkable thing you're going to hear in this case is that despite what Four J's knew about Esperanza Arzola before this fire and despite what Ms. Uduma knew, as the property owner, about the people who were going to be living there and who she was charged with taking care of and ensuring their safety, that Four J's and Ms. Uduma are going to take this stand and they're going to swear under oath that they hold no responsibility for these injuries.

21 They're going to place all of the blame for this incident squarely upon Esperanza Arzola. She's already testified to that in her deposition when I questioned her. I don't expect her to change her testimony on the stand here in this trial.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000772 Volume 1

1 We think that the evidence will show you that that's outrageous and offensive.

3 We're going to ask at the conclusion of this trial to reconcile the egregious conduct with the injuries that resulted.

6 Jenny Wagner has about $91,000 in medical bills that she incurred as a result of the treatment from these burns. She has permanent disfigurement, permanent scarring. Her mother takes care of her now, 24/7.

11 We're going to ask that you award compensation for those kinds of injuries to her person, to the pain and the suffering that she experienced.

14 Even though Jenny has the mental capacity of a two-year-old, she's able, like any two-year-old, to understand and appreciate what pain is.

17 Those of us with children know that, and we're going to ask you to consider that.

19 And we're going to ask you to confront in this trial profound questions about the meaning of life, about who is important in our society, about who should be hold -- held responsible for caring for those people, whose duty under the law and under common sense and justice it was to make sure that Jenny Wagner and Tanya James were safe and to prevent this from

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000773 Volume 1

1 happening.

2 There's no question in this case that Esperanza Arzola was the one who lit the cigarette lighter. We're not here to talk about that, though.

5 That's not what the law says I have to prove in order to recover against someone else.

7 What I have to show is that they could have seen -- foreseen it, that they failed to act reasonably, and we're going to do that.

10 I'm also going to ask you at the conclusion of this trial to award exemplary damages. In Texas that's what we call punitive damages.

13 Exemplary damages are designed, as the word may suggest, to make an example, to show our society and our community that this should never happen.

16 There's a whole bunch of factors that the judge will get into later about when you can award those and when you can't, but it's that kind of a serious case.

20 Chapter 31 verse 8 and 9 of Proverbs tells us we must speak for those who cannot speak for ourselves [sic]. We have to stand up for the rights of the poor and the destitute. I'm not a biblical scholar, but I do know that.

25 And I will give Jenny a voice in this

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000774 Volume 1

1 trial. I will give her mother a voice. And at the end of it, I'm going to ask that you go back into that deliberation room and you give her a voice, too.

4 We look forward to showing you this evidence.

6 THE COURT: Mr. Sparks?

7 MR. SPARKS: Thank you, Judge, Counsel.

8 INTERVENOR'S OPENING STATEMENT 9 MR. SPARKS: Good afternoon, ladies and gentlemen. How are y'all doing?

11 We have gone through the laborious process of voir dire, and now we have the fine distinction of being able to present our full case to the 12 of you.

15 We understand that at the beginning of the morning when we started communicating we couldn't give you a lot of the depth that you may have wanted in order to answer some of the questions that we asked you.

19 It was not that we didn't want to give it to you, it's just that we had to determine, out of the 48, which 12 would sit to hear the evidence. Now that that decision and that determination has been made, you will get the opportunity here, the depth and the breadth of the evidence from the Plaintiff, the Intervenor, and the Defendants.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000775 Volume 1

1 And based upon that evidence, you will render a verdict, and we hope and we pray that it is based upon all the evidence and the information that you find that we've presented and that you find also in the best interests of our clients.

6 Now, Mr. Thweatt talked about Jenny Wagner being over with Four J's on Beretta Court; and so was Tanya James. Tanya was there.

9 Tanya James had been a resident at Beretta Court since 2002. And she and Jenny were the anchors, if you would, of that facility. Periodically other people would come and go out of that four-woman home, but the two that remained there and stayed there and had been there the longest was Jenny and Tanya James.

16 Some would leave, some would come, for various reasons.

18 In 2005 Esperanza Arzola came to that facility. And when she got there, she became problematic.

21 And when I say "problematic," I mean, she started acting out. She started leaving the facility. She started engaging in disruptive behavior.

24 She started acting violently toward the staff members.

25 She started acting violently toward herself, and they

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000776 Volume 1

1 had to try to figure out what to do with her.

2 One of the things that was of a concern is that you had these four women -- Jenny Wagner, Tanya James, and whoever the other two was, and one caretaker -- trying to keep up with all four of them.

6 And Esperanza was the higher-functioning of the two of them and so she could kind of do what she wanted to do and she had the physical capacity to impose her will on the caretakers.

10 And they were afraid of her because she had physically assaulted some -- or more than a few of them. She had physically assaulted herself. She had threatened to kill herself, and she had threatened to kill other people.

15 Knowing all this, they kept her in the facility; but there's something else you need to know.

17 Not only did they keep her there at the facility, this so-called 24/7 -- actually, during the day, they would all leave and go to a day-hab facility, which is also owned by Anthonia Uduma. She owned the home, the corporation, and the day care facility that they went to.

23 Now, at the day care facility, they would be there for five to seven hours a day. A van would come by, load them up, take them to the day care

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000777 Volume 1

1 facility. They'd be there for five to seven hours at the -- they'd get a meal, get some kind of training, they'd get some attention, and their needs would be met.

4 Then the van would pick them up, take them back to the home.

6 When they got back to the home, the one caretaker would provide their food, their medication, clothing, got them ready for bed, and it would start all over again.

10 At the day-hab facility that was owned by Ms. Uduma, all the other people from the other homes and facilities that she had would also congregate there.

13 And when they would congregate there, those individuals who wanted to could smoke.

15 It wasn't unreasonable. It wasn't unusual. It was common practice that Esperanza was a smoker. They knew she smoked. They allowed her to smoke.

19 So they knew she had access to cigarettes and they knew she had access to fire, yet when we asked them about whether or not it was reasonable to do a cursory pat-down to see whether or not when she left the -- the day-hab facility and came back to the home she had anything that could be of harm to herself or other people, you're going to hear that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000778 Volume 1

1 Ms. Uduma says, "Oh, that's against her rights," her rights not to be patted down or to be determined whether she had any objects that would be destructive to herself or others.

5 Even though she had a history and a propensity to do this, they felt that her right not to have to endure that little challenge, if you would, superseded the rights of our clients.

9 Our clients were sitting there in a home with Esperanza Arzola, who's a ticking time bomb; and they didn't want to engage her to determine whether or not other contacts she had made with people in the day facility would have generated an item of danger, if you would, that when she came back to the Beretta Court property, would harm our clients.

16 And ultimately it did. Ultimately it did.

18 You're going to hear about the fire.

19 But as important to the fire, you're going to hear about due to Esperanza Arzola's frequency to elope -- which is a term they used -- but she'd just leave when she wanted to, go out in the neighborhood, smoke, hang out with people. They had to run around, find her, bring her back.

25 What they decided to do was -- well, a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000779 Volume 1

1 couple of options they had was to bring in another facilitator to assist the one that was there to make sure she didn't leave, would be two people with four women as opposed to one. They made a management decision.

6 By that, I mean this: What they decided to do was to close off one of the exits in the home or lock it off, mind you, to the point where she couldn't leave when she wanted to.

10 So here you have this facility, this home, this care home that has a -- a -- a front door, a back door, and a garage. The back door -- you're going to learn that once they got certified, that it had a -- it was a designated exit, fire exit, if you would, that they had in the home in the case of an emergency to be able to safely get these women out without any injury or damage to them. Yet, what they decided to do was lock it and block it off.

19 And not only did they lock it and block it off, but they did it with a dead bolt lock that you needed a key in order to open.

22 Now, mind you, we've got women here who have mental retardation, who have special needs in terms of their ability to -- to be mobile -- she's wheelchair-bound -- and you've got Esperanza Arzola,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000780 Volume 1

1 who's a problem child, and then you have another individual that comes and goes.

3 And in this case, it was a lady named Alicia Campbell. And she also was somewhat high-functioning. And she was a physically challenging [sic] person, too, because she had a little bit higher function. And she kind of wanted to do what she wanted to do.

9 So the caretaker's got two high-strung women, and then she's got the other two she's got to care for around the clock.

12 And so they decided to put these two with Jenny Wagner and Tanya James. And so in order to keep the high-functioning ones within the -- the parameter of the home, rather than bringing somebody else in to help, the care staff, they put a dead bolt lock on the door.

18 Now, they're going to tell you that, oh, yeah, well, the staff there, we came in and we did fire drills and -- and you're going to hear from her and you'll look at some of the documents and how fast and how swift they were able to get four people -- Jenny Wagner, Tanya James, Alicia Campbell, and all them -- out of the house in mega seconds sometimes.

25 And -- and they all went out the front door.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000781 Volume 1

1 But they never went out -- or challenged trying to do the fire drill out the back door because the back door was always locked, always locked.

4 And as fate would have it, September 4th, 2008, Esperanza Arzola sets the house on fire. The lone staff there panics. The training she had been designed to do or had been trained to do or had been told to do -- just signs the documents and say you've done it -- she don't know what to do.

10 She doesn't go get the fire extinguisher. She thought about going out -- taking them out the back door, but the back door's locked.

13 And guess what? She didn't even have the key. She did not have the key to the back door; so she panics.

16 And what does she do?

17 She did a thing called self-preservation. She left. She left.

19 She left Jenny in the house. She left Tanya in the house, and Tanya didn't make it.

21 What you're going to hear from us is that Tanya, when -- 1997, Tanya was taken into the Harris County Guardianship Program and she was removed from her family. Her mother had some medical issues.

25 She got separated from her sister.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000782 Volume 1

1 But before she left, when she was 14 years old, she had a son named Derrick James. And Derrick has some special needs. And her sister, Wylette Taylor, is his guardian.

5 And Wylette tried for years to find out where her sister was. They wouldn't give her the information because she needed a lawyer to find out.

8 That was privileged information. It was HIPAA-protected, where is her sister.

10 On a -- on a fluke, Derrick had his healthcare provider changed from one company to another.

12 They went to see a doctor.

13 And he said, "I had a client named Tanya James. And it's ironic that your son -- nephew is Derrick James." 16 And Wylette Taylor says, "I've got a sister named Tanya James. Where is she?" 18 And he says, "Well, she used to be with Four J's on Beretta Court; but it caught on fire and she died." 21 And from there, Wylette Taylor started a search, trying to find out what happened to her sister. And you're going to hear from her in terms of what she found as she went over on Beretta Court.

25 Two years later, the house is still

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000783 Volume 1

1 standing, still standing, clothing in it, the door's not secured, the windows open, just open to the world.

3 People can come in and out, and they have been. And she went up in there and found information about her sister.

5 And what we submit to you is that this corporation, Four J's, was derelict in its duties to Tanya James, Jenny Wagner, in addition to the property owner, Ms. Anthonia Uduma -- she owned that house.

9 And the law says that a property owner has the duty to inspect and discover any known or unknown dangerous conditions on the property and to fix them or warn of their presence.

13 That locked door was a dangerous condition, and Ms. Uduma knew or should have known it existed. She had the authority and the ability to go in and do an inspection.

17 She owned it. She leased it to her company. She -- she -- she had all her people there.

19 They knew it. She had contractors come by, do work on the property.

21 They informed her of it; and she's going to tell you, "I didn't know. I did not know that existed. I'm not responsible because I didn't know.

24 Sure, some of my people might have known; but I didn't.

25 And since I didn't know, I ain't responsible."

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000784 Volume 1

1 But we submit to you there's a concept called respondeat superior that says an individual's -- who works for a company that does wrong that is negligent, the company is negligent, and we're going to prove that to you.

6 And we ask that you -- we ask that you consider the 23 hours that Tanya James suffered. They found her in a bathtub gasping. She had soot, she had carbon monoxide all in her lungs. She didn't make it, and -- but she suffered until she died.

11 And of that, the law says an individual has a right to a survivorship claim. They can bring a cause of action -- although dead, they can bring a cause of action that they endured prior to their death; and that cause of action survives them and can be brought before a court of law by an heir. That heir is Derrick James.

18 And Derrick is not in a position to be here today because of his own special needs, but he's represented by his aunt and the sister of Tanya James.

21 And that's Wylette Taylor.

22 Thank you.

23 MR. PLUMMER: May it please the Court.

24 THE COURT: Mr. Plummer?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000785 Volume 1

1 DEFENDANTS' OPENING STATEMENT 2 MR. PLUMMER: Counsel, ladies and gentlemen, I started off my voir dire examination to explain to you-all that this was -- this lawsuit arises out of a very tragic set of events that occurred back in September of 2008.

7 And I maintain that there's no other way to describe what happened to Jenny Wagner or what happened to Tanya James as other than tragic, and there's no way to discuss that without being emotional about it and without having feelings for what they went through.

13 Ms. Uduma, her staff, the entirety of her staff, were -- were overwhelmed by what had happened and stepped up to comfort the family as much as they could -- the Wagner family as much as they could after this tragic event.

18 But the mere tragedy and the emotion of that is not what this lawsuit is all about, and I believe the evidence is going to clarify, rather than the emotion and the argument that Counsel has made -- show the other side of what happened out there that particular day and that particular night.

24 Four J's Community Centers is an agency that provides residential care for

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1 developmentally-disabled individuals. Most are mentally retarded. Many have other kinds of disabilities.

3 It's regulated by the Texas Department of Mental Health, Mental Retardation. It's regulated by the Department of Aging and Disabilities. It is regulated by several other groups and agencies that are concerned about the well-being of the disabled in our society.

9 Years ago -- it's based upon a philosophy that, to the extent we can, we want to bring the disabled back into the community rather than warehouse them in institutions, as they did in the olden days -- bring them back into a residential setting as much as possible and give them as much of a normal life as possible and enhance their skills to the limits of their abilities.

17 And Four J's is a company that does that for its clients and its consumers.

19 Because it's regulated by these various agencies, it has a litany of requirements and rules that it has to comply with. And you will see from the evidence the way they attempt to comply with many of these rules.

24 There are, first of all, case managers assigned to each individual consumer of Four J's. There

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000787 Volume 1

1 are supervisors who monitor what happens and what transpires at the various homes that Four J's operates.

3 There are individual safety plans for each individual consumer and client at their facilities.

5 There are individual plans, development plans, for each client; and they have a detailed list of the physical and emotional needs of each of the patients and each -- each of the clients.

9 Now, Four J's, as part of its compliance with the regulatory compliance and as a prudent business, has its own procedures that it follows to train its staff to properly care for its folks.

13 Those include in-service -- in-service training sessions with staff, personnel. Those include conferences on a regular basis about the well-being of a particular staff person's clients at the particular homes; and they're all documented. They're all documented.

19 It also includes complying with the regulatory requirements of local agencies or State agencies about the configuration of the home, whether the home is suitable for the clients who come to the homes and who have a variety of different kinds of disabilities.

25 The questions that you're going to be

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000788 Volume 1

1 asked to address at the end of this trial should be based upon the evidence that you hear rather than what I say as a lawyer or what Mr. Sparks says as a lawyer, as -- or what Mr. Thweatt says as a lawyer.

5 They're going to have to be answered based upon the evidence and the testimony that's credible that you hear.

8 Let me tell you what I understand from the facts occurred on the 4th of September, 2008.

10 When -- after coming home from attending the activity center at Four J's -- oh, by the way, let me also digress a second.

13 I think the other aspect of this trial that you-all need to be aware of is that the emphasis on what someone owns or what's -- how many homes that they operate under this is a red herring and is a ruse. And I think the evidence is going to show that, but don't be carried away by that. Look at what the evidence shows about how this particular home was run.

20 The evidence is going to show that the house had at least three, if not four, exits for ingress and egress in the event of an emergency.

23 It's also going to show that the staff was trained that in the event of a fire, you -- there's a priority you apply to how you address and get the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000789 Volume 1

1 clients out of the home or how you address and get the consumers out of the home, one of which was attend to the most vulnerable first.

4 It's also going to show -- and ironically, a few months before that, that there was a training session where Amuche, who was the caregiver that evening, that night, was counseled with and trained on and talked about what would you do in the event there was a fire and Jenny was in the house. Okay? What would you do?

11 And she was taught that if it -- you know, obviously in an emergency situation, you don't have time to lift her up or put her in her wheelchair or put her in her overhead lift. You get her down on the floor, you put her on a blanket, and you drag her out; or if -- if -- if that wasn't a possibility, you get her down and you go out the window. Ignore a minor injury.

18 Your goal is to protect Jenny. That was the training she was given, Amuche was given; and that was the training other employees were given in circumstances where you had someone with the level of disability of somebody like Jenny.

23 For somebody like Tanya James, who was -- who could walk but needed guidance, you then take them, lead them by the hand; and for the others who were

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1 ambulatory and higher-functioning consumers, you would shout "fire, fire," and they would head out.

3 Now, that was the training; and it was just -- not just one time in June of 2008, but it was periodic. It was also contained in the individual safety plan for Jenny, for Tanya, and for the other residents, something that was gone over on a regular basis.

9 Now, the real challenge -- the real challenge that you-all as jurors are going to have is going to be understanding that you can train somebody regularly. In fact, you can probably train somebody every day; but you can't guarantee that they're going to be able to -- to comply with that training if they panic or collapse or faint or something of that sort. And that's what happened that night.

17 Esperanza Arzola lit the bedroom on fire by a lighter that no one was aware of that she had.

19 And there was no reason to be aware or be alerted to her having any kind of issues with fire.

21 She was a troubled kid. Many of the kids in this environment have disabilities and -- and problems -- perhaps none of the same nature of Esperanza, but they have problems.

25 But none of her history, a history that

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1 follows an individual from -- from facility to facility, had anything in there that indicated a problem with fire; but she started this fire.

4 And -- and after having gotten Arzola out of the house, rather than follow the procedure she had been taught, Amuche went and got Campbell out from the farthest part of the house where there was no fire at all.

9 I can't explain to you why she did that. I can tell you that Ms. Uduma and Four J's trained her another way to do that, that that wasn't the way she was trained to do it.

13 So when you -- when you assess responsibility, when you compare the responsibility of the parties, you need to understand that there's a distinction between how much a business or a corporation can bring to bear on its employees in terms of training and the expectation that they'll follow through on that in an emergency situation.

20 The evidence is also going to show that -- and you'll be confronted with evidence that addresses issues of credibility -- that is, believability.

24 You will hear different versions of some of the things that occurred that evening. For

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000792 Volume 1

1 example, you will hear testimony by Amuche about what she did and what she didn't do or what training she had and what training she didn't have. And you're going to be called upon to assess that credibility.

5 And I think the evidence is going to show that by the totality of the circumstances, the -- and those circumstances include events that are -- that you see and hear in the courtroom but also events that you are told about from the witness stand about what's happened.

11 You can assess whether or not someone is being credible and honest with you because that's what you've got to decide the facts are in this case, based upon credible testimony and credible evidence.

15 You've heard some -- some statements by -- by Mr. Sparks and Mr. Thweatt about the circumstances of the house.

18 I believe he said something about the back door having a double-sided dead bolt -- it did -- that was blocked. It wasn't.

21 But you -- again, what I say and what he says and what the other lawyers say is not evidence.

23 You-all have to decide. You-all will have to listen to it and make that decision from there.

25 At the end of the testimony and the end

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000793 Volume 1

1 of the evidence, you're going to be asked to assess responsibility, and you're going to be asked to compare the conduct of various parties in this.

4 You're going to be asked to make judgments about what conduct, if any, was negligent and whose conduct was that that was negligent.

7 The Court will instruct you on that, the Court will give you written questions on that, and you'll have to make those decisions. But it will be based upon what you hear from this witness stand and the documents that come into evidence.

12 The tragedy of what happened in September of '08 meant that, you know, Tanya James lost her life and Jenny Wagner suffered so -- severe burns.

15 But that mere tragedy should not cause you to lose sight of your obligation to the Court and the -- and the -- consistent with the oath you take to decide the issues based upon the instructions the Court gives you and decide this issue in this case fairly to all parties.

20 With that, I am going to stop so that we can get to the evidence and start telling you through evidence what, in fact, happened.

23 Thank you, ladies and gentlemen.

24 THE COURT: Mr. Thweatt, call your first witness.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000794 Volume 1

1 MR. THWEATT: Your Honor, we call my client, Patti Wagner.

3 (Patti Wagner sworn by the Court.)

4 THE COURT: Have a seat, please.

5 MR. SPARKS: Judge, we'd like to invoke the Rule, if possible.

7 THE COURT: All right. The Rule has been invoked. The lawyers and witnesses are instructed that they are not to discuss the testimony of any witnesses to any other witnesses until such witnesses have been called. The Rule exception applies to parties, spouses of parties, and to any witnesses whose presence in the courtroom are necessary for their own testimony.

15 Basically that means, witnesses, don't talk to each other about your testimony until you've been excused as a witness.

18 You may proceed.

19 All right. Excuse me. If you are a witness, you need to leave the courtroom.

21 MR. PLUMMER: Excuse me, Your Honor.

22 That's Mr. Uduma. I believe spouses of the parties are permitted to stay in.

24 THE COURT: All right. You may proceed, Mr. Thweatt.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000795 Volume 1

2 PATTI WAGNER, having been first duly sworn, testified as follows: 4 DIRECT EXAMINATION BY MR. THWEATT: 6 Q. State your full name, please, Patti.

7 A. Patti Joan Fillebeck Wagner.

8 Q. You're Jenny Ann Wagner's mother?

9 A. Yes, sir.

10 Q. Where do you and Jenny live?

11 A. We live at 22400 Westheimer Parkway, Apartment 911.

13 Q. You said that was an apartment?

14 A. Yes, sir.

15 Q. How big is that apartment there?

16 A. We have a two bedroom apartment now.

17 Q. Is it on the ground floor?

18 A. Yes.

19 Q. Why is that?

20 A. It's handicap accessible.

21 Q. And Jenny has been in a wheelchair for all of her life; is that right?

23 A. She got her first wheelchair when she was three.

24 Q. Let me show you a picture.

25 Is that (indicating) your daughter?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000796 Volume 1

1 A. Yes, sir.

2 Q. How old was she in that photo?

3 A. That picture, she's about five.

4 MR. THWEATT: And that's Plaintiff's Exhibit 1 for the record.

6 Q. (BY MR. THWEATT) Has anyone lived together with you and Jenny in your apartment in Katy?

8 A. No, sir.

9 Q. Does anyone live nearby you?

10 A. My sister is in the same complex.

11 Q. What's her name?

12 A. Joan Davis.

13 Q. Are you married?

14 A. I'm a widow.

15 Q. What was your husband's name?

16 A. Robert Michael Wagner.

17 Q. How long were you and Bob, as you've described him to me, married?

19 A. We were married for -- we celebrated our 37th wedding anniversary just before he died.

21 Q. When did he pass away?

22 A. December 27th, 2007.

23 Q. Did you and your husband, Bob, have any other children besides Jenny?

25 A. We adopted our son in 1986. He's 25.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000797 Volume 1

1 Q. And what's his name?

2 A. Dustin James Wagner.

3 Q. Can you tell the jury where he lives?

4 A. Dustin actually lives with one of his college buddies in Katy.

6 Q. Your parents brought Jenny to the courthouse today; is that correct?

8 A. Yes, sir.

9 Q. And where do they live?

10 A. They live in Omaha, Nebraska.

11 Q. What are their names, please?

12 A. Frank Fillebeck, F-I-L-L-E-B-E-C-K, and Mary Joan Fillebeck.

14 Q. Have they had to come and travel down to your apartment in Katy to help you with Jenny since the fire in September of 2008?

17 A. Several times.

18 Q. Do you work, Ms. Wagner?

19 A. Not anymore.

20 Q. What did you used to do?

21 A. I was a secretary and an administrative assistant.

23 Q. Where did you work?

24 A. For a long time I was at Memorial Lutheran School and Church as the administrative assistant. And

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000798 Volume 1

1 then after Bob died, I went back to work there as the church secretary.

3 Q. How many years did you work there?

4 A. I started there in probably '9 -- '94.

5 Q. Why don't you work there now?

6 A. I need to take care of Jenny. It's a full-time job.

8 Q. Would you tell the jury, please, Ms. Wagner, what mental and physical disabilities your daughter has.

10 A. Jenny has been diagnosed with spastic cerebral palsy, all four extremities, which means arms and legs are involved; and she's unable to use them except for her hand, with minor use left in it.

14 She has severe to profound mental retardation and optic nerve damage, which means her vision -- she's legally blind because the optic nerves were damaged at birth, which means that she can only see spots, I guess is the best way I can describe it.

19 Q. Is she able to speak?

20 A. She can, yes, sir.

21 Q. Can she have conversations in a way that normal people without disabilities can -- 23 A. No, sir.

24 Q. -- have -- 25 A. I'm sorry. No, sir.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000799 Volume 1

1 Q. Can you give the jury an example of the kinds of things she can say?

3 A. Jenny expresses her needs in one or two words.

4 Basically, you ask her choices; and she can make the choice: "Are you hungry?" "Yes." "Do you want to -- a hamburger, or do you want a cheeseburger?" And she'll say, "cheeseburger." 8 If she means "yes," in some circumstances she'll repeat the question. If she means "no," she does say "no." 11 Basically, she has more understanding than expressive language, I guess is the best way to say it.

13 Q. Did Jenny attend school as she was growing up?

14 A. Yes, sir.

15 Q. And can you tell the jury about that?

16 A. After Jenny was diagnosed with the cerebral palsy and the mental retardation, we found a center -- she was in a pilot program in Omaha, Nebraska, for infant stimulation. She was 18 months old.

20 From there, she went to an integrated preschool for a year on -- at a pilot program in Bellevue, Nebraska. And then she attended the J. P. Lord School for the handicapped for preschool at the same time.

25 When she turned six -- pardon me. When she

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000800 Volume 1

1 turned six, she attended a school for the physically and mentally handicapped children in Bellevue, Nebraska.

3 Later on, we moved down here to Houston -- or to Dallas, and she was in school in Lewisville and in Dallas. All of the classes were for the handicapped children.

7 She -- her final education down here, of course, was at Katy High School. They had the special education classes there.

10 Q. Let me show you another picture. This is Plaintiff's Exhibit Number 3.

12 How old is Jenny in that picture there?

13 A. That one, she's probably about ten.

14 Q. Was Jenny close to your husband and her father?

15 A. Yes, sir.

16 Q. Let me show you this photo here, Plaintiff's Exhibit Number 5.

18 How old is Jenny in that photo; do you remember?

20 A. I think she's 17 or 18 in that one.

21 Q. What kind of challenges, Ms. Wagner, did you face raising Jenny as a child?

23 A. Well, of course, physically, with the handicap... Jenny is severely multiply-handicapped, of course; and so there's basically absolutely nothing she

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000801 Volume 1

1 can do for herself except to feed herself finger foods.

2 And so, consequently, any movement that you -- if -- to move from room to room or place to place, someone else always has to do that.

5 Educationally, you know, we missed all of the milestones -- no long division at eight, no driving a car, those kinds of things that are natural milestones.

9 And socially, especially as she got older and we moved away from Nebraska, where my family lived, it limited how much time outside the home that Bob and I could spend together because even with our -- our son there, especially after we adopted him, one would have to be with Jenny at all times and then the other would be able to go and do things with our son -- Little League, T ball, those kinds of things.

17 And so those last years, I think, Bob and I had one vacation. It was an overnight stay.

19 Q. Did Jenny ultimately graduate from high school at Katy?

21 A. They say "graduate," but basically you're aged out.

23 The State of Texas allows a child to go to a public school until the year they turn 22. Jenny was 22 on January 8th, 1995. Pardon me. And so her last

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000802 Volume 1

1 official school day would have been sometime that May of 1995.

3 Q. And as I've described to the jury, Jenny then went to live at a facility called The Willows; is that correct?

6 A. She went to live at The Willows in August of '95.

8 Q. And can you describe for the jury the decision process that you and your husband went through in order to place her in that facility and whether -- all the things you considered to do that.

12 A. Yeah.

13 When Jenny was first diagnosed, we were told to take her home and decide what we were going to do with her.

16 That's when we looked around, and we found programs that we could get for her to -- to help her and -- and get developmental -- her developmental needs expanded.

20 About the time she turned 16, then the question is have you thought what are you going to do with her if you're no longer there to take care of her.

23 And so basically you start looking around and trying to find out what the next step is.

25 If you're fortunate, you have family that

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000803 Volume 1

1 are able, besides being willing, to step in and -- and become the second set of parents; and sometimes you don't.

4 So Bob and I made the decision that Jenny's handicaps were so profound that she -- we had to look for some place for long-term care.

7 Q. And how long did Jenny remain at The Willows facility when she moved in in 1995?

9 A. Jenny was at The Willows from 1995 until we moved her to the Four J's house in 2002.

11 Q. And how did you come to select Four J's in 2002 for Jenny?

13 A. When Jenny was in high school, we put Jenny on waiting lists to -- for services. And one of the waiting lists that you can put them on is HCS, which is Home and Community Services.

17 In 2002 we received a call from Texana, which is the Fort Bend County oversight, people who look over and place -- help place people in Jenny's situation. I guess that's the best way I can explain it.

22 Anyway, they called us and said, "We have a group home available. We have a company that has a group home available, and are you interested in -- in moving Jenny?"

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000804 Volume 1

1 One of the things we knew not to do was ever take her off the waiting list because Jenny was living in San Antonio and we wanted her closer to home. By then, my husband was traveling. He was a contract computer expert. And it was fly in on Friday night, drive to San Antonio on Saturday, and fly out on Sunday.

7 So we jumped at the chance that we could move Jenny closer to home.

9 Q. And ultimately Jenny came to live at 16335 Beretta Court in Missouri City, correct?

11 A. That's correct.

12 Q. All right. How many other residents with mental disabilities were in the home, that you remember, when you first moved Jenny into the Beretta Court house?

15 A. Two.

16 Q. Did that number change at any time?

17 A. Evidently. I don't know when.

18 Q. Okay. Did you and your husband visit Jenny while she was at the Beretta Court house?

20 A. Yes, sir.

21 Q. And can you describe some of those visits for the jury, with detail?

23 A. Usually they were day visits, or on holidays we would pick her up and bring her back to the house. My husband was still traveling, and so we would pick her up

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000805 Volume 1

1 on Saturdays and generally go out to the mall.

2 At the time Jenny had a wheelchair that didn't collapse; and so consequently, there was no way to use her chair that she was using at The Willows -- I mean, pardon me -- at Four J's in our car. So we bought a travel chair.

7 And unfortunately, the travel chair is not very uncomfortable [sic] for an extended period of time.

9 So our visits usually, when we went to the mall, would last between two and four hours, depending on how Jenny was -- was -- how comfortable she was; and then we would take her back to the house.

13 Q. Ms. Wagner, during the holidays, did you and your husband ever have occasion to bring Christmas presents to Jenny there at the house or to other residents?

17 A. Yes, sir.

18 Q. Do you remember ever meeting Tanya James at the house?

20 A. We met her the first -- the first day.

21 Q. Did you ever meet Ms. Esperanza Arzola?

22 A. I don't know. I don't recognize the name.

23 Q. I want to talk about the fire that happened on September the 4th, 2008, Ms. Wagner.

25 A. Yes, sir.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000806 Volume 1

1 Q. How did you first become aware that your daughter had been burned in that fire?

3 A. On the morning of 2000 -- or on the morning of September 5th, I had gone to work. It was about 7:30 in the morning. I had gone in to the workroom to make coffee. I was the secretary at Memorial Lutheran Church.

8 I came back to my desk, and there was a message on my cell phone. It was from Ngozi Obichuku, who was Jenny's case manager. The message basically said, "Ms. Wagner, I just want you to know Jenny's alive. She's at Hermann -- or Memorial Hermann Hospital in the burn unit." 14 Once I heard that, I called my sister and told her what -- what was said.

16 And she -- she says, "Okay. Get the pastor." 18 And so... I'm sorry.

19 Q. Did you go to the hospital then with your sister and the pastor?

21 A. My sister and the pastor decided that the pastor would drive me to the hospital and Joanie would meet me there. Joanie was in Katy at the time, and we were working down by the Galleria -- I was working down by the Galleria. So Pastor St-Onge, from the church, drove

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000807 Volume 1

1 me to the hospital.

2 Q. Would you tell the jury what you saw when you first came into Jenny's room at Memorial Hermann Hospital on September 5th, 2008?

5 A. Jenny was already in the burn ICU upstairs. She was laying on the hospital bed. It was propped up. She had bandages that went around her head and covered the whole side of her -- her face and her neck. Her arms and hands were -- were completely bandaged on both arms and hands, and she had bandages around her chest.

11 She had an I.V. in her groin, and she had a respirator that -- that she was breathing from. There was a tube coming out of her that was connected to some kind of vacuum pump, and it was pumping the lining of her lungs out. There was blood and black soot that was pumping this out.

17 She was connected to a heart monitor, and it was monitoring her oxygen level on her finger. She was -- there was something else, the heart monitor, and -- and a blood pressure cuff on her -- on her ankle.

21 Q. How long did Jenny remain in the hospital, Memorial Hermann?

23 A. Jenny was released from the hospital on October 2nd.

25 Q. Did you ever have a thought while you were there

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000808 Volume 1

1 at the hospital whether your daughter was going to survive, Ms. Wagner?

3 A. The first week, that's the first question I would ask. And then after the first week, it was, "When can I bring her home?" 6 Q. What kind of medication do you recall Jenny receiving for treatment of her burn injuries at Memorial Hermann?

9 A. Jenny was on a morphine drip.

10 Q. Was she on a constant morphine drip?

11 A. Yes, sir.

12 Q. Was Jenny able to speak with you while she was in the hospital to tell you how she was feeling and specifically whether she was in pain?

15 A. Not for the first two weeks. She had the respirator; and they were keeping her, I think, unconscious.

18 Q. Can you tell the jury what you saw at Memorial Hermann Hospital with regard to the care and treatment of Jenny's burn injuries?

21 A. They allow the family to come in periodically throughout the day. In the evening, they -- they tell the family, "You might as well go home" because that's when they do the debridement. That's when they scrape the dead skin off from the burns; and they don't want

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000809 Volume 1

1 family around, I guess. You can wait in the waiting room, but... until the next visiting time.

3 What -- what they have to do -- twice a day they would close down the center when they would -- they would remove bandages and -- and clean the wounds and then replace bandages.

7 Q. Did you ever hear Jenny scream when that happened?

9 A. Not Jenny. We were never in there when they replaced her bandages.

11 Q. During your daughter's nearly month-long hospitalization, were you able to see with your own eyes the way Jenny was responding to the treatment, whether or not she was in pain?

15 A. They explained about watching the -- the heart monitor and -- and the respirating monitor, and you could see the different levels. That's -- that's how they would monitor and gauge pain for people who are unconscious.

20 Later on, once they took out the respiratory tube and the feeding tube and they started giving her her food by mouth, we could hear Jenny grinding her teeth. And that always was an indication that she was very uncomfortable and in pain in some way.

25 Q. When Jenny was finally discharged on October the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000810 Volume 1

1 2nd, 2008, where did you take her?

2 A. I took her back home to my apartment. I was living in a one-bedroom apartment at the same complex at that time.

5 Q. So you had to move and get a bigger place; is that right?

7 A. After a year. I had to wait for a two-bedroom handicap apartment to open up if I wanted to stay in the complex.

10 Q. Can you describe for the jury, Ms. Wagner, the kind of care that you provided to your daughter once you got her home to your apartment in Katy?

13 A. Basically, we had to learn how to do the bandage changes. We had to administer her -- her medication, make sure everything was cleaned and sterile; and then, of course, had to change her diapers and give her sponge baths.

18 Q. Did your daughter have skin graft surgeries while she was at Memorial Hermann?

20 A. Yes, sir.

21 Q. Do you know how many?

22 A. All I can tell you is that there was, I think, seven stripes on her thighs where they removed the skin to make the skin grafts. I'm not sure exactly how often or how much they could use at a time.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000811 Volume 1

1 Q. Do you know with -- after they removed the strips of skin from her thighs, do you know where those strips were placed on her body?

4 A. Yes, sir.

5 Q. Can you tell us, please?

6 A. Yes. Jenny had skin grafts on her left breast, on her upper arm here (indicating).

8 Q. And that's her right arm?

9 A. Her right arm, yes, sir. Her right arm here (indicating) and here (indicating), on her knuckles and wrists over here (indicating). On her left arm they cut the burn out over here (indicating), and -- and they were able to staple that closed. But then down here (indicating), she had skin grafts. And on here (indicating), they -- they had skin grafts on her knuckles here (indicating) they were worried about wouldn't take because the bones had -- were showing. Of course, there's not a lot of muscle or fat there. So we had to be very careful about those skin grafts.

20 Across her stomach, they were able to staple some of the burned -- after they excised it, they were able to staple some of that; but there was a section over here (indicating) that was skin graft.

24 And then on her -- I'm sorry; I got confused. It's her -- her right breast that has the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000812 Volume 1

1 skin graft; and the left breast, there's a -- an incision about that long (indicating) where they cut the burn out.

4 Q. Ms. Wagner, I want to show you and the jury some photos from Plaintiff's Exhibit Number 29 that were taken at a facility called EdiCare Professional -- EdiCare Professional Healthcare Services?

8 A. They -- 9 Q. I'm sorry?

10 A. Those were taken at my house.

11 Q. No, no. These photos here (indicating) were taken by someone -- 13 A. From EdiCare.

14 Q. -- from EdiCare.

15 A. Yes.

16 Q. They may have been taken at your house.

17 A. Yes, sir.

18 Q. Okay. And I just want you to tell the jury a little bit about the kind of wound care that EdiCare was providing to Jenny as of October the 4th, 2008.

21 Do you remember what EdiCare was doing for your daughter?

23 A. Yes, sir.

24 EdiCare supplied a visiting nurse that came in once a day to do the morning skin grafts and to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000813 Volume 1

1 monitor her vital signs and conditions so that, you know, in case something had gone wrong in the next -- you know, the prior 24 hours, we would know.

4 And in -- in doing that, the morning -- the morning shift change was usually done -- or the morning dressing change was usually done by the nurse from EdiCare, and my sister Joan and then my mother and I did the after -- the evening.

9 Q. Okay. We just saw Jenny's legs as of October the 4th, 2008.

11 I want to show you another photo from Plaintiff's Exhibit 29 taken by EdiCare. Is this (indicating) your daughter's stomach?

14 A. Yes, sir.

15 Q. And does this photo indicate that there are staples or stitches in your daughter's stomach?

17 A. There's staples.

18 Q. How long were those staples removed, or were they in until they were removed?

20 A. The staples -- the following week. We had to take Jenny to the burn doctor's office, Dr. Wainwright's office. And I believe... maybe it was two weeks -- a week or two later that they finally removed all the staples.

25 Q. Later in that same --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000814 Volume 1

1 A. Later in the -- in October.

2 Q. Okay. Later in that same exhibit underneath that picture is a picture -- is that a picture of your daughter's chest as it was reflected on October the 4th, 2008?

6 A. Yes, sir.

7 Q. And are those also staples that we see there, that you saw?

9 A. Yes, sir.

10 Q. Okay. Show you another picture from Plaintiff's Exhibit 29 taken on October the 4th, 2008.

12 That appears to be your daughter's arms; is that correct?

14 A. Yeah. I think that must be -- where's the thumb? Yeah. I think -- is that the right arm? I'm looking for the thumb, the top one. The bottom one is her other arm and hand. That must be left.

18 Q. And you and your sister would change Jenny's bandages?

20 A. And my mother, yes.

21 Q. How long did your mother travel down from Nebraska? How long did she stay to help you?

23 A. They stayed through the beginning of February.

24 Q. 2009?

25 A. Yes.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000815 Volume 1

1 Q. Let me show you a picture that was also taken by EdiCare appearing in Plaintiff's Exhibit 29, taken in November, 2008, bottom one there.

4 Is that your daughter's neck and side of her face and her ear?

6 A. Yes, sir.

7 Q. I want to ask you, Ms. Wagner: When you first saw how your daughter's neck and the side of her face and her hand was burned, what perception did you have with relation to how she was positioned in the fire?

11 A. When they first took the bandages off her face, which was before other bandages -- this was still at the hospital -- my mom and I had come in. Usually two of us went in together to visit Jenny.

15 And my mom and I had come in. And we were -- we were looking at her face, and -- and we could -- it looked like you could see her hand print over her -- her face. This side of her face (indicating) was what was burned, and this side (indicating) was not.

21 Q. That's the right side?

22 A. Yes, sir.

23 Q. That's the right side of her face?

24 A. Yes, sir.

25 Q. And her left hand is the one you're describing?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000816 Volume 1

1 A. Yes, sir.

2 MR. THWEATT: Your Honor, with the Court's permission, I'd like to have Jenny Wagner come into the courtroom now.

5 May I retrieve her?

6 THE COURT: Yes.

7 (Jenny Wagner comes into the courtroom.)

9 MR. THWEATT: All right. Thank you, sir.

11 Q. (BY MR. THWEATT) Patti, is this your father?

12 A. Yes, sir.

13 MR. THWEATT: Okay. Your Honor, I'd like to ask Ms. Wagner to step down and...

15 THE COURT: Okay.

16 MR. THWEATT: Thank you.

17 Q. (BY MR. THWEATT) All right, Patti. As quickly as you can, I'd like you to show the jury the current state of Jenny's scarring from this fire. Okay?

20 A. All right.

21 PATTI WAGNER: Jenny, hold your head up one second.

23 A. Face scars are hard to -- to get soft and to eliminate easily, and they sometimes have keloids; and it's -- it's tissue, basically.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000817 Volume 1

1 She has -- 2 PATTI WAGNER: I'm sorry, Sweetheart.

3 A. -- tissue down here and right here (indicating).

4 This ear (indicating) had been burned, and -- and we have to be very careful about pressure on that ear a lot. And -- and then her eyelid here, over here (indicating), was burned.

8 Q. (BY MR. THWEATT) What kind of care do you provide daily to make sure that pressure and agitation does not occur?

11 A. She's massaged and -- and lubricated every time we change her diapers. Okay. This is her right arm -- 13 PATTI WAGNER: Sweetheart, I need your arm. Thank you, Darling.

15 A. This is where the grafting was taken here and here and on her wrist and her knuckles here (indicating). And then I need to -- 18 PATTI WAGNER: Let me have your arm.

19 Let me have your arm. I know. Let Mommy see. No?

20 Just one minute. Just one minute. Thank you. Thank you.

22 A. The knuckles here (indicating) were where they had grafted. She's not going to let me...

24 Q. (BY MR. THWEATT) That's on her left one?

25 A. Yeah.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000818 Volume 1

1 PATTI WAGNER: That's okay. That's all right.

3 MR. THWEATT: All right. Mr. Wagner, do you want to take her out?

5 (Jenny Wagner leaves the courtroom.)

6 Q. (BY MR. THWEATT) Are you ready to continue?

7 A. Yes, sir.

8 Q. I'm going to ask you about an excerpt from your daughter's medical record that's been previously admitted as Plaintiff's Exhibit Number 29.

11 You mentioned a Dr. Wainwright at Memorial Hermann Hospital; is that right?

13 A. Yes, sir.

14 Q. And as I understand it, he was Jenny's primary burn physician; is that correct?

16 A. That's correct.

17 Q. Okay. Talk to you about a note from Memorial Hermann's home burn care plan.

19 It says "Medications" there. Can you read that, Ms. Wagner?

21 A. Yes. It's Vicodin.

22 Q. Okay. (Reading) One to two tabs as needed for pain.

24 Was Jenny -- when she got home to your care, was she taking Vicodin to address pain?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000819 Volume 1

1 A. Yes, sir.

2 Q. And how often did you give that to her?

3 A. Every four hours.

4 Q. And how long did that continue?

5 A. Every four hours for probably the first two weeks, at least, and then maybe every six hours thereafter.

8 Q. When did you administer -- you said every four hours, but is there a timing in particular during the day when you change bandages and that kind of thing when it's particularly important?

12 A. The morning bandage change was always done for -- by my sister, of course, and the nurse from EdiCare.

15 Heidi would call, and we would administer the -- when she was a half an hour from our home, and we would administer the Vicodin then to make sure that she was well medicated before they did the change.

19 Q. Now, at some point Jenny had to stop taking morphine and Vicodin to address her pain; is that right?

21 A. That is correct.

22 Q. Okay. And how did she respond to that physically?

24 A. She had severe hot flashes. She -- her body would become drenched, and she wouldn't sleep. She

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000820 Volume 1

1 would be restless. And Jenny doesn't cry; she grinds her teeth.

3 Q. Did you see her grinding her teeth?

4 A. Often.

5 Q. Where does Jenny sleep now?

6 A. Jenny sleeps in her comfy chair. It's a recliner, and she calls it her comfy chair.

8 Q. And why does she sleep there instead of the bed?

9 A. I think she equates the bed with pain.

10 Q. If you put her in her bed, will she go to sleep?

11 A. No. 12 Q. Let me show you Plaintiff's Exhibit 23, Ms. Wagner. Where is that?

14 A. That's -- 15 Q. Is that the chair that Jenny sleeps in?

16 A. Yes. That's her comfy chair, uh-huh.

17 Q. Okay.

18 Show you Plaintiff's Exhibit 24. Can you describe what we see in Plaintiff's Exhibit 24, please?

20 A. There's a -- a quilted pad that you see just on top of the sheet. Underneath that quilted pad, we have a -- a pillow to help her bottom, to keep from getting bed sores.

24 On top of the quilted pad is a waterproof throwaway pad to protect from urine on -- on the chair.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000821 Volume 1

1 On the top -- on the back of the chair is the -- I think that is the pink blanket.

3 We have several blankets that we put next to this side (indicating) of her head to cushion the ear and to help keep her head more in alignment when she sleeps.

7 Q. Let me show you Plaintiff's Exhibit 25.

8 Can you tell us what this is here?

9 A. Yeah. That's my -- that's my cart. On it at the top... the bag contains wipes that we use when we wipe her bottom. Cetaphil is the cream that I use on her burns to massage them and to keep them supple so that they don't dry out and split open.

14 Behind that is Vaseline that we put on her bottom, a spray bottle of bleach, and some baby powder.

16 Underneath that, more wipes and Kleenexes and the green pads I was telling you about before.

18 In the drawers are heavier pads that I put in her pants when she's going to be home -- a long time from home, an hour or two; and then at the bottom are, I guess you would call them, adult pull-ups, instead of diapers now. We use those.

23 Q. Ms. Wagner, how long was it until Jenny was finally released from medical care for the treatment of her burn injuries?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000822 Volume 1

1 A. We saw Dr. Wainwright for the last time toward the end of February. I think it was around the 23rd of -- 4 Q. Of 2009?

5 A. -- of 2009.

6 Q. How -- how do you transport Jenny? If you have to get her to an appointment or something like that, how do you do that?

9 A. I have a collapsable wheelchair, but -- that I can take apart and put in -- fold up and put in the trunk. Then I lift her into my car.

12 Q. You physically lift her into your car?

13 A. Yes.

14 Q. What kind of car do you drive?

15 A. I have a Ford Focus.

16 Q. He how old are you now, Ms. Wagner?

17 A. I'm 59.

18 Q. Do you worry, because of your age, whether you'll have the physical ability to lift Jenny for the foreseeable future?

21 A. Yes. I thank God every morning when I get up that I still have a strong back.

23 Q. Ms. Wagner, you understand that as a result of Jenny's care for the treatment of her burns, Memorial Hermann and UT physicians, where Dr. Wainwright works,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000823 Volume 1

1 and various other medical providers incurred -- or sent charges for Jenny's medical care?

3 Do you understand that?

4 A. Yes.

5 Q. And I want to show you Plaintiff's Exhibit 58, which is just a summary.

7 Now, can you see there the total, $91,553.98?

9 A. Yes, sir.

10 Q. Is that your understanding of what has been incurred for Jenny's medical care as a result of these injuries?

13 A. For the burns, yes, sir.

14 Q. And there's a -- part of that -- most of it is fee for services because there's prescriptions, as well, and about $1,081.12. Is that for the Vicodin and materials you had to purchase afterwards to treat her pain?

19 A. I believe so. 20 Q. Where did you fill Jenny's prescriptions at?

21 A. For the Vicodin, at Walgreens next door to us.

22 Q. I'm going to ask you whether or not you know who Anthonia Uduma is.

24 A. Yes, sir.

25 Q. Do you understand her to be the president and

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000824 Volume 1

1 CEO of Four J's Community Living Center, Incorporated?

2 A. Yes, sir.

3 Q. Did Ms. Uduma ever call you on the telephone after your daughter was burned to talk to you about what had happened in this fire?

6 A. I think so. I think she just called to say -- ask how we -- yeah. I think there was one time. I think so. I -- 9 Q. Did she ever apologize to you for what had happened to your daughter?

11 A. No. 12 Q. Do you understand that Ms. Uduma and her company have blamed Esperanza Arzola solely for this fire? Do you understand that?

15 A. That's my understanding, yes.

16 Q. How does that make you feel?

17 A. I -- I -- I don't know how you can blame someone who has all the problems that Esperanza seemed to have had. I don't think she was mentally competent in being able to understand consequences for her actions.

21 Q. Thank you, Ms. Wagner.

22 A. Uh-huh.

23 MR. THWEATT: Pass the witness, Judge.

24 THE COURT: Mr. Sparks?

25 MR. SPARKS: Briefly, Judge.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000825 Volume 1

1 DIRECT EXAMINATION BY MR. SPARKS: 3 Q. Good afternoon, Ms. Wagner.

4 A. Good afternoon.

5 Q. When you were summoned to the hospital, Memorial Hermann? Was that on the 4th or the 5th of September?

7 A. The morning of the 5th.

8 Q. The morning of the 5th?

9 A. Around 7:30.

10 Q. And you went there with your pastor and were met there by your sister; is that correct?

12 A. That's correct.

13 Q. Did you ever get a chance to see or find out about Tanya?

15 A. Yes, sir, I did. I asked, and I -- and I went to her room. I wasn't allowed to go in, but I could see her from the doorway.

18 Q. And describe to the jury what you saw in terms of Tanya.

20 A. You couldn't see much of Tanya. Tanya was totally encased in bandages and hooked up to machinery.

22 That's -- you saw bandages.

23 Q. You know, you mentioned that when you first went to -- took Jenny to Beretta Court, that that was the first time you had met Tanya James; is that correct?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000826 Volume 1

1 A. Uh-huh. Well, the day we visited Beretta Court, my husband and I, Jenny was still at The Willows; but we met with Ms. Uduma and the current case manager at that time, Ms. Wilson. And they took us to Beretta Court to see the house before we made the final decision.

6 And at that time, we met Tanya and another housemate who was living there.

8 Q. Were you ever made aware that Jenny and Tanya had a special bond together?

10 A. They were original roommates of Jenny's. She and the other young woman who was there at that time were her original roommates, yes.

13 And my understanding is that their bedrooms were right down in the same hallway, next to each other.

15 Q. And were you of the opinion that during that time period before Esperanza Arzola arrived on the scene that there was peace and harmony at that home?

18 A. Yeah. Bob and I would pick up Jenny on Saturdays, like I said, or on holidays to bring her home on holidays; but, you know, on Saturdays we would do our mall walk.

22 Part of our routine was to pick up cookies to take to Tanya and -- and Delores, the other roommate at that time -- and bring them cookies. And Tanya and Delores would be sitting on the couch, and Jenny would

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000827 Volume 1

1 be in her wheelchair next to them.

2 We would call ahead so that they would be able to change Jenny to new diapers and have her ready for us to take out.

5 And Delores would stand up and hug Bob and always say, "Jenny's daddy" and -- and "cookies." And Tanya would come and -- and take the cookies and put them on the table.

9 And the first year we brought Christmas presents for Tanya and Delores and a Christmas tree for their house, and -- and they were excited because they had presents and something to open. And, in fact, we were -- we were wondering if they were going to let them open them or how long they would last under the tree.

15 But, yes, it was a quiet atmosphere when we would pick Jenny up.

17 Q. Now, during the time period after 2005 when Ms. Esperanza Arzola arrived on the scene, you were still Jenny's guardian, were you not?

20 A. I've been her guardian since we legally had to be, yes, sir.

22 Q. And would it be safe to say that you had a -- I may not be putting it in the right words, and please correct me if I'm wrong -- you had a yearly staffing or update or some type of review --

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000828 Volume 1

1 A. Yes, sir.

2 Q. -- if you would, regarding Jenny's stay at the Beretta Court facility?

4 A. That is correct.

5 Q. All right. And at any point in time when you -- who would you have that staffing meeting with? Let me ask that question, first.

8 A. Generally, the case manager, whoever was the current case manager at that time for Jenny. Myself; if my husband was in town, he would be there, too; also, the person in charge of the day hab at that time; and then also there would be a report from the nurse on staff at the day hab facility.

14 Q. Did -- did you ever have an occasion, ma'am, to go visit the day hab?

16 A. We've picked up Jenny at the day hab a couple of times.

18 Q. What was your impression of it?

19 A. There were two, and I don't remember what year they changed over.

21 The -- the first year that -- or the first two years, maybe, that they were at the -- Jenny was at Beretta Court, Four J's had another building that was close to -- oh, I got my B's mixed up. It was in a different area than the one -- it was closer to the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000829 Volume 1

1 Galleria area. I can't remember which street it was on.

2 But anyway, I would go there on Wednesdays to take Jenny out to lunch and pick her up at that day hab.

5 After a couple of years, they moved to another facility, which was larger and had more rooms.

7 It had a courtyard in the middle of it and parking lots on either side of it.

9 I -- they would bring Jenny to me. I never actually went inside the rooms.

11 Q. So you never really had an occasion to go in and see what activity was taking place?

13 A. Not at the actual day hab there. I could see some of the clients in the courtyard.

15 Q. Would they just be milling around or was there an apparent degree of instruction being given or what was your assessment on what Jenny was doing?

18 A. My understanding was that it was time to be outside.

20 Q. Did you ever see people smoking?

21 A. Yes, sir.

22 Q. I'm sorry?

23 A. Yes, sir.

24 Q. What was the purpose of this yearly and annual review that you had with the case worker for Jenny and

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000830 Volume 1

1 the individual from the -- the day hab?

2 A. At an annual review, they go over the plans for the coming year on educational goals, physical goals.

4 They review her physical condition and -- and get input from the parent on -- or guardian on what we would like to see happen.

7 Q. Was there ever an occasion where you were either verbally or in writing given information that assured you that the safety of Jenny was paramount to the people at Four J's as she existed at the 16335 Beretta Court facility and when she also went to the day hab facility?

12 A. I'm not sure about anything specific to the day hab. I -- I guess I never asked or was -- you know, it -- it was an assumption.

15 Q. Okay.

16 A. As for the house, I know that there was paperwork that we received when we moved Jenny into it; and I think that part of it was a promise on their part to ensure the safety and well-being of Jenny, yes.

20 Q. Now, did -- at any point in time during these annual reviews, did Ms. Anthonia Uduma or anybody else from Four J's share with you that there was an individual named Esperanza Arzola who had taken up residency there?

25 A. No. I don't -- I didn't -- I didn't recognize

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000831 Volume 1

1 the name. I cannot say that they did not tell Bob. I don't know.

3 Q. Were you ever made aware, ma'am, that there was an individual at the facility who had moved in who was creating havoc in the home?

6 A. We can't be told that.

7 Q. You can't be told that?

8 A. No. HIPAA.

9 Q. You were never told that?

10 A. We can't be.

11 Q. You can't be.

12 A. It's illegal. We cannot know. That's -- that's personal information, and that can't be shared with -- with us. That's why we had to rely on them to place clients in the home with Jenny who are compatible with us and Tanya's special needs.

17 Q. So it was your understanding, then, that the individuals at Four J's, when they were coupling up or quadding up the individuals in the home, were trying to take into consideration -- or you thought they were taking into consideration people who would be compatible with the needs of Jenny, the needs of Tanya, and their personalities?

24 A. That definitely happened at first, because Tanya and Delores and Jenny were placed together.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000832 Volume 1

1 Q. So you were never made aware that somebody who was later placed there had attempted to commit suicide?

3 A. You can't be told that. We can't be told that.

4 Q. You were never made aware that she was eloping [sic] from the facility?

6 A. No, sir. That's -- that can't be shared.

7 Q. You were never made aware that they put a padlock on the back door to try to keep her from leaving the facility?

10 A. No. I can't honestly say that I looked at the door myself and saw a padlock. I didn't pay attention to -- it's a sliding glass door. I never really looked at it; so I don't know when a padlock was placed on it.

14 But I certainly was never told that a padlock was necessary because of another client in the house. We wouldn't have left Jenny there.

17 MR. SPARKS: No further questions, Judge. I pass the witness.

19 THE COURT: Mr. Plummer?

20 MR. PLUMMER: Thank you, Your Honor.

21 CROSS-EXAMINATION BY MR. PLUMMER: 23 Q. Ms. Wagner, let me understand this: Mr. Sparks asked you were you ever told if there was a padlock on the back door. And I think you indicated you never

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000833 Volume 1

1 recall being told that; is that right?

2 A. Yes, sir.

3 Q. And, in fact, there was no padlock on the back door; is that right?

5 A. I -- I -- I don't remember.

6 Q. Seeing one?

7 A. No. But, then, I didn't ever open the back door, either.

9 Q. Okay. All right. Did you say, also, that there was a sliding back door -- 11 A. I think -- pardon me. 12 Q. Did you say there was a sliding back door in the back of the house?

14 A. I thought it was.

15 Q. Okay. There was a photograph up -- we had it up earlier -- of your cart.

17 A. Yes.

18 Q. Do you recall that?

19 And I think that was the place where you kept at hand those things you needed to care for Jenny; is that right?

22 A. That is correct.

23 Q. It's convenient? I mean, obviously it's a burden and a responsibility, trying to take care of her all during the day and the evenings; is that right?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000834 Volume 1

1 A. Yeah. It was on wheels. It was convenient.

2 Q. Okay.

3 A. And I would just resupply it as I needed it.

4 Q. Okay. I believe you mentioned the Vaseline and some other kind of salve that you put on her cheek to keep the scarring from keloiding and getting hard?

7 A. Cetaphil.

8 Q. Cetaphil?

9 A. Yes, is what I personally used.

10 Q. Other than the Cetaphil and the Vaseline, any other care that you were providing that is demonstrated on the cart that results directly from the burn injuries she suffered as opposed to her condition?

14 A. No. 15 Q. Now, Mr. Sparks has asked you about an annual staffing -- 17 A. Uh-huh.

18 Q. -- when Jenny was -- was a consumer at Four J's.

19 A. Uh-huh.

20 Q. Is -- was it annual, or was it more often than annual?

22 A. Annual.

23 Q. Okay. And you participate -- you participated in it and, when your husband was alive, he participated, also; is that right?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000835 Volume 1

1 A. If he was in town, yes.

2 Q. If he was in town.

3 And in addition to that, if you couldn't attend in person, you attended the conference of staffing by phone; is that right?

6 A. Yes.

7 Q. Okay. And usually those staffings were documented?

9 A. Eventually.

10 Q. Okay. And did they also include a fairly detailed assessment of Jenny's current status and -- and what her future needs are, what your desires were toward her development, and things of that sort?

14 A. Eventually.

15 Q. Okay.

16 A. A document was created after the staffing where the case manager would go back and type up all the notes that were taken during the staffing, and then she would compile them -- 20 Q. Okay.

21 A. -- and put them in Jenny's file.

22 Q. Okay. And would you get a copy of that -- that memoranda?

24 A. Yes. Yeah, usually.

25 Q. Okay. And did it also contain her -- Jenny's

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000836 Volume 1

1 individual emergency plan and planning with regard to that?

3 A. An individual -- for the house at Beretta Court?

4 Q. No, for Jenny.

5 A. An individual -- I'm sorry. In what aspect? Do you mean what would -- they were supposed to do in case of a -- no. 8 Q. Okay. Okay.

9 At any point in time before the fire, did you complain about the care Jenny was getting in your annual plan?

12 A. No. 13 Q. Is it fair to say we can assume, then, that from what you observed and saw, Jenny was getting good care?

15 A. From what I would -- observed and saw and was told, yes.

17 Q. Okay. Okay.

18 Now, your -- one of your principal contacts about Jenny was the case manager; is that right?

20 A. She was the contact person.

21 Q. The contact person?

22 A. Yes.

23 Q. And what was her name? What was her name?

24 A. At the time of the fire, it was Obichuku. I'm sorry. I just went blank. Ms. Obichuku.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000837 Volume 1

1 Q. Okay.

2 A. What's her first name? I'm so sorry. Ngozi.

3 Q. Ngozi?

4 A. Ngozi Obichuku.

5 Q. Okay. And Ms. Obichuku would -- would keep in touch with you, relay information about Jenny.

7 And how else would she carry on her case management functions vis-à-vis information to you?

9 A. She would call me if something came up and she needed to speak to me about it.

11 Q. Okay.

12 A. Other than that, she would -- we would have our annual staffing. Usually we spoke.

14 Q. Was she pretty responsive?

15 A. If I had a question, she would answer it, yes.

16 Q. Okay. All right.

17 And she's the one who called you the morning of the 5th?

19 A. Yes, sir.

20 Q. Okay. And did she tell you that there had been a fire at the house or did she just tell you Jenny was in the burn unit?

23 A. She said they were -- there was a fire at the house and Jenny was taken to Memorial Hermann and she was in the burn unit there.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000838 Volume 1

1 Q. At that time did she tell you what she thought or how she thought the fire had occurred?

3 A. Not at that phone call, no. 4 Q. Okay. At any subsequent phone call with Ms. Obichuku, did she tell you how the fire was caused?

6 A. Not on a phone call, no. We saw each other at the hospital the same day.

8 Q. And you subsequently discovered that the fire was started by a -- another client, Ms. Arzola, right?

10 A. Yes. Ms. Obichuku had told me that at the hospital.

12 Q. Okay. And that she had started it in her bedroom; is that correct?

14 A. I don't believe she told me where she started it.

16 Q. Was it your understanding that Ms. Arzola had been injured or not injured in the fire, or did you have any understanding one way or the other?

19 A. Ms. Arzola?

20 Q. Yeah.

21 A. The only two that I knew that were injured in the fire were Tanya James and Jenny.

23 Q. Okay. The other residents got out?

24 A. That was what I was -- yeah, understood to be true, yes.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000839 Volume 1

1 Q. Okay. Now, the -- the caregiver who was at the house that evening -- 3 A. Uh-huh.

4 Q. -- Amuche -- 5 A. Uh-huh.

6 Q. -- had you met her before?

7 A. I believe so. 8 Q. Okay. And did you get a chance to talk to her that night or the next day at the hospital?

10 A. Oh, no. 11 Q. Okay. Now, at some point in time, Ms. Wagner, you sued Amuche Udemezue in this lawsuit; is that correct?

14 MR. THWEATT: Your Honor, I object to relevance.

16 THE COURT: Overruled.

17 Answer the question.

18 A. I believe at -- maybe the very first document had her name on it. I don't -- I don't know.

20 Q. (BY MR. PLUMMER) Okay. So you don't recall exactly when you sued Ms. Udemezue as one of the responsible parties in this matter?

23 A. There was never a -- a court trial. It was all part of this case that we're doing today.

25 Q. I understand.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000840 Volume 1

1 And as part of this case that we're doing today, when you filed the lawsuit, had -- and if you don't know about this, you know, just tell me that.

4 A. Uh-huh.

5 Q. Do you recall and do you remember when your lawyers filed suit against Amuche Udemezue in addition to Ms. Uduma, Mr. Uduma, and Four J's?

8 A. I believe that was on the first court document that was filed.

10 Q. Okay. Okay. Okay. And the reason she was included in that is because you-all thought she was the responsible party in this; is that right?

13 MR. THWEATT: Objection, Your Honor, it calls for speculation and calls for invasion of the attorney/client privilege, and relevance.

16 THE COURT: Sustained.

17 MR. PLUMMER: We'll move on, Your Honor.

19 Q. (BY MR. PLUMMER) I believe Mr. Sparks asked you some questions about Arzola, Ms. Arzola, and whether or not you'd ever been told that she would be coming into the home.

23 Do you remember that?

24 A. Well, yeah. Just a few minutes ago he asked questions about her.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000841 Volume 1

1 Q. Right.

2 And in -- in -- I believe you said that that had not -- nobody had told you she would be coming in there; is that right?

5 A. I -- I -- I said I didn't recognize the name.

6 Q. Okay. But you were informed, were you not, of a new roommate coming in when Arzola came in; is that right?

9 Well, let me approach -- 10 A. Yeah.

11 MR. PLUMMER: May I approach, Your Honor?

13 THE COURT: Me or the witness?

14 MR. PLUMMER: The witness.

15 THE COURT: Yes.

16 Q. (BY MR. PLUMMER) Let me show you what's been marked as Defendant's Exhibit 36 and ask if you would take a second and look at that and tell me whether you can recognize that document.

20 A. (Complying.)

21 Q. And tell me whether you can recognize your signature or initials on the next page.

23 A. (Complying.) It's my signature.

24 Q. Okay. And this is a -- a staffing report, is it? Or what is it called, an Interim Individual Service

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000842 Volume 1

1 Plan?

2 A. Yes, sir.

3 Q. And informing you about the new roommate that was coming into the house?

5 A. I believe so. 6 Q. Okay. And you -- 7 A. I'm sorry. Sir, I didn't read it all. May I?

8 Q. I'm sorry.

9 THE COURT: Mr. Plummer, you can just leave it there. All right?

11 MR. PLUMMER: Thank you, Your Honor.

12 A. Yes, sir. That's what it says.

13 Q. (BY MR. PLUMMER) Okay. And it gave you the option to say yes or no to the new roommate coming in; is that correct?

16 A. That probably is true.

17 Q. And if you said yes, the roommate comes in; if you said no, the roommate doesn't come in? Is that right?

20 A. I don't know. I probably -- if I was ever asked yes or no -- I knew I was informed, but I don't know if I was ever -- I did not raise an objection.

23 Q. Okay.

24 A. I guess that's -- that's it.

25 Q. Okay. All right. Okay. Thank you, ma'am, on

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000843 Volume 1

1 that.

2 A. Uh-huh.

3 Q. Now -- now for eight or nine months after the -- after Jenny -- Jenny was hurt in the fire and got out of the hospital, who did you have as the caregiver for Jenny?

7 A. Myself for the primary caregiver.

8 Q. Okay. And what about the case manager who helped manage the -- the care of Jenny; who was that?

10 A. Ngozi Obichuku.

11 Q. And Ms. Obichuku is -- was part of Four J's; is that correct?

13 A. That is correct.

14 Q. And then after about eight or nine months, you found somebody else, some other facility, through whom Jenny's care was managed; is that correct?

17 A. Yes.

18 Q. Okay.

19 A. Yes. They oversaw her services.

20 Q. Oversaw her services?

21 A. Yes.

22 Q. Okay. Thank you, ma'am.

23 Has Jenny been fitted with a dental appliance to address her teeth grinding?

25 A. No.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000844 Volume 1

1 Q. Okay. Now, that's been part of the recommendation for a while; is that correct?

3 A. That was part of the recommendation on a document from Four J's, yes.

5 Q. From Four J's?

6 A. Yes. Her current -- 7 Q. Beg your pardon?

8 A. -- dentist -- we address that through pain medication.

10 Q. Okay.

11 A. And as long as she's medicated well enough, then -- then it is -- there's no teeth grinding.

13 We had discussed that, and that was one of the things we had talked about. And that's while she was at Four J's. Whether or not Four J's followed through on it... I don't think so. 17 Q. Well, I -- I guess the -- the reason for my question is: You -- you mentioned that she continues to grind her teeth occasionally now; is that right?

20 A. When she's in pain, yes, sir.

21 Q. And -- and I -- it's not just because of her burn injuries that have healed; but it's because of her -- the nature of her condition, the spasms and things of that sort; is that correct?

25 A. That is correct.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000845 Volume 1

1 Q. Okay. So it's not related necessarily to her burn injuries; is that right?

3 A. That is correct.

4 Q. Okay. I'm sorry.

5 MR. PLUMMER: Your Honor, at this point in time, we pass the witness.

7 THE COURT: Mr. Thweatt?

8 MR. THWEATT: Thank you, Your Honor.

9 REDIRECT EXAMINATION BY MR. THWEATT: 11 Q. Ms. Wagner, you just heard Mr. Plummer describe that Jenny's burned injuries have healed.

13 Do you believe that Jenny's healed from this fire?

15 A. There will always be problems at the sites of the skin grafts. If the skin becomes dry, it will crack. So that has to be addressed all the time.

18 On her -- her donor sites, the thighs, if -- if she becomes too hot, they get red and -- and sore, like a sunburn.

21 And so those are things that are ongoing issues that will continue to be...

23 Q. Were you ever told before this fire by anyone from Four J's that Jenny refused to sleep in her bed and that, instead, she had to sleep in a recliner like she

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000846 Volume 1

1 does now?

2 A. There was no recliner at Beretta Court.

3 Q. Were you ever told by anyone at Four J's that Jenny couldn't sleep in her bed when she was there?

5 A. No, sir.

6 Q. And now she can't or doesn't sleep in her bed; is that right?

8 A. That is correct.

9 Q. Have you ever heard or seen Jenny have a physical or a verbal response to things like sirens?

11 A. There are things that will startle her excessively, I guess is the best way... and she will spasm.

14 Q. What would those be?

15 A. That would be one of those things.

16 Q. Sirens?

17 A. Sirens, yes, sir.

18 Q. Have you ever heard her ask about Tanya James after this fire?

20 A. I've heard her -- Jenny speaks in kind of strange ways, and she'll talk to herself. On occasion, she'll say something like -- well, actually what she says is, "Is Tanya crying?" 24 Q. I want to ask you, Ms. Wagner: You told Mr. Plummer that after this fire, Four J's still had

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000847 Volume 1

1 some involvement with Jenny for a period of eight to nine months; is that right?

3 A. That is correct.

4 Q. Okay. Can you tell us -- well, don't tell me. Tell the jury how that interaction after this fire and the terrible injuries that your daughter suffered, how that came to be, how Four J's was still involved in your daughter's life.

9 A. I -- well, the first instance was I needed a way to get Jenny home from the hospital. My family refused to help me -- the one time that they refused to help me was to put her in a car and bring her home because they were worried about Jenny being hurt. And so they insisted I call Ngozi and ask them to bring Jenny home from the hospital -- from the hospital on the day that she was released.

17 And later on, Ms. Uduma and the nurse from Four J's came to my house and -- and checked over Jenny.

19 And Ms. Uduma said, "She needs a hospital bed." 21 At the time we were -- we were dressing her wounds on my bed, which is a -- you know, just a regular double bed, which meant it's that far off the ground (indicating).

25 And dressing her wounds took two people. We

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000848 Volume 1

1 wanted to do it efficiently and quickly. And so one would stand next to the bed and on one side and do that half of her body and the other one would climb onto the bed and do the other half of her body.

5 And once Ms. Uduma realized how we were taking care of her, she -- she ordered a hospital bed from -- for Jenny.

8 They supplied Beabo (phonetics) -- my mind just went -- Shelipido (phonetics), I believe that's her last name -- to come in and help me during the day. I think that started around December.

12 Beabo was a young woman who would come in and take care of Jenny under the day hab services that Ms. Uduma could help, in order for me to be able to go to my sister's apartment and rest or to go to the grocery store.

17 Q. Ms. Wagner, I want to show you defense Exhibit 36 again. Mr. Plummer showed this to you.

19 This recommendation here that Four J's made on their documents, it says Jenny's new roommate is acceptable to be her roommate.

22 Do you see that there? Do you see that on the document?

24 A. Yes, sir, I see that.

25 Q. And you were never provided any other

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000849 Volume 1

1 information from Four J's about Tanya James after -- I'm sorry -- this date of staffing, which indicates March 18th, 2008; is that right?

4 A. Do you mean the new roommate?

5 Q. You were never provided any other document related to Esperanza Arzola after March 18th, 2008; is that correct?

8 A. No, sir. I -- you can't share personal, private information with other people.

10 Q. All right. Had you been told that a Four J's document created on April the 15th, 2008, just one month afterwards -- I'm sorry. Wrong one.

13 Had you been told that Ms. Esperanza Arzola had had a history of suicide attempts and property damage and violence against staff and was taking antipsychotic medications and those kinds of things, would you have ever agreed to permit your daughter to be housed in the same residence as someone with those kinds of challenges and disabilities?

20 A. No, no. 21 MR. THWEATT: Pass the witness, Your Honor.

23 THE COURT: Mr. Sparks?

24 MR. SPARKS: I have no questions, Your Honor.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000850 Volume 1

1 THE COURT: Mr. Plummer?

2 Mr. Plummer: Nothing further of this witness, Your Honor.

4 THE COURT: Thank you, ma'am. You may step down.

6 Ladies and gentlemen, we're going to go ahead -- this is a good stopping point. We're going to stop a little bit earlier than I told you before just because it just makes more sense to stop now than to put on a witness for just ten more minutes.

11 Again, reminder, we start tomorrow morning at 8:30 sharp. So I need y'all to be here in plenty of time so that we can bring you in at 8:30 for the very next witness. The closer we stay to schedule, the better we do at making sure that this trial is completed according to the schedule I gave you right before jury selection.

18 So please, as I said before, if you're not used to driving into downtown at that hour of the morning, it's going to take you longer than you expect to get here. So please plan accordingly so you can be here.

23 Deputy Dewey can give you information about mass transit, if you'd like to take mass transit, also tell you about the various parking -- the parking

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000851 Volume 1

1 facilities in the area. The County has a County-owned parking garage immediately behind this courthouse, which is that direction (indicating). It's connected to this courthouse by an underground tunnel with its own secure access with metal detectors.

6 The lines down there, I'm told, in the mornings are almost nonexistent, so it's very easy, very efficient to get through. That's where I tell my wife to park whenever she comes down to visit me with the kids during the day. I ask her to go ahead and park in that parking garage.

12 Again, I don't get a cut of the parking fees or anything like that. I'm not trying to steer you that direction. That's the best option.

15 But if you want to look at other options, Deputy Dewey can give you some information about that.

18 With that, we'll see y'all tomorrow morning at 8:30.

20 (Jury out.)

21 THE COURT: Thank you. Please be seated.

23 Mr. Thweatt, who do you plan to call tomorrow?

25 MR. THWEATT: Your Honor, we'll call

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000852 Volume 1

1 Ms. Wylette Taylor tomorrow and, after that, Ms. Uduma, as well as a couple of the employees who worked there at the home.

4 THE COURT: Do you think you're going to finish up tomorrow, or will you go into Wednesday?

6 MR. THWEATT: I think we'll go into Wednesday, Your Honor.

8 THE COURT: All right. All right. As of now, Plaintiffs and Intervenor's have used one hour of their seven hours. Defense has used 17 minutes of their seven hours.

12 I'd like to finish up -- well, we weren't able to finish it before. First of all, are there any objections to deposition designations I need to rule on? I never really asked that.

16 MR. RAVAL: There are, Your Honor.

17 THE COURT: Okay. All right. Let's go in -- first we're going to do any objections to Plaintiff's designations, since they're up first.

20 What I need you to do is I need you to have the transcript of whichever witnesses we're talking about and come up here and we'll -- I'll review those objections. All right?

24 MR. RAVAL: Okay.

25 MR. PLUMMER: Now, Judge, or in the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000853 Volume 1

1 morning?

2 THE COURT: No, now.

3 MR. THWEATT: I may be able to short-circuit a lot of this with regard to our designations. We're going to designate Dr. Karen Gollaher and Rick Overholt. Neither of those witnesses -- the deposition testimony that we designated, none of those were objected to during their depositions. They had previous counsel -- 10 THE COURT: Okay. Slow down.

11 You've just got two witnesses you're calling by deposition?

13 MR. THWEATT: That's correct.

14 THE COURT: Mr. Sparks, are you calling anyone by deposition?

16 MR. SPARKS: No, Judge.

17 THE COURT: Your two witnesses are Dr. Gollaher and -- 19 MR. THWEATT: A gentleman named Joe Overholt.

21 THE COURT: Okay. All right. Well, I need to know what the objections are before I can say whether or not they've been waived or not. So -- 24 MR. THWEATT: I understand.

25 THE COURT: -- I understand what you're

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000854 Volume 1

1 saying, but we'll just take those up.

2 Now, what I do have in front of me are an October 13th Objections to Plaintiff's Deposition Excerpts.

5 MR. RAVAL: Those are the most recent.

6 THE COURT: Okay. So we only need to look at the Gollaher and Overholt?

8 MR. RAVAL: Correct, Your Honor.

9 THE COURT: So, if I could have those transcripts...

11 MR. THWEATT: May I approach, Judge?

12 THE COURT: Yes.

13 Just while they're getting ready, Mr. Sparks, Mr. Thweatt, do you have any objections to any defense deposition designations? I don't see any in my file, but I just wanted to -- 17 MR. THWEATT: My understanding is they're not going to designate any.

19 THE COURT: Have y'all filed any deposition designations?

21 MR. RAVAL: No. I believe everyone that we're going to designate is coming live.

23 THE COURT: Okay. All right. That's fine.

25 So we've just got two witnesses to take

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000855 Volume 1

1 care of.

2 All right. Let's start with Dr. Gollaher.

4 What's the first objection, Mr. Raval?

5 MR. RAVAL: The first objection is to relevance; and it's that first section, Page 15, Lines 14 to 16. But I -- I think I can, again, short-circuit some of our objections to Dr. Gollaher.

9 The general nature of our objections to her deposition excerpts are what we discussed this morning, which is we don't believe that her testimony regarding Esperanza Arzola's fitness for a criminal trial or criminal proceedings is relevant to anything in this trial.

15 And the excerpts that we refer to regarding relevance are -- the first two objections are specific to that objection.

18 THE COURT: Okay. So let's just -- I just want to go one by one and make sure the record's clear.

21 Page 15, Lines 14 to 16. Your objection is relevance?

23 MR. RAVAL: Correct.

24 THE COURT: Mr. Thweatt, your response?

25 MR. THWEATT: First of all, Judge,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000856 Volume 1

1 there was no objection made during the deposition; and as I've indicated there weren't any -- 3 THE COURT: Is relevance an objection to form or an objection that a question's leading?

5 MR. THWEATT: I believe that -- to answer your question, yes, Your Honor. If there's going to be an objection to relevance, it needs to be made during the testimony, is my understanding.

9 THE COURT: Well, I asked -- I mean, you guys -- under the potted plant rule, you get to object to form, you object to leading, and you object to the responsiveness of the answer or you assert a privilege. That's my question.

14 I mean, which of those four things should this objection have been?

16 (No response.)

17 THE COURT: All right. That's the answer?

19 All right. The objection's sustained.

20 16, Line 19 to 17 [sic] and Line 6 -- again, relevance is your objection?

22 MR. RAVAL: Correct, Your Honor.

23 THE COURT: Okay. Hold on. Let me read it.

25 What's the relevance of this testimony,

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000857 Volume 1

1 Mr. Thweatt?

2 MR. THWEATT: Your Honor, the relevance of Dr. Gollaher's inquiry is to -- is to make sure that these defendants are not going to be permitted to blame this fire on Esperanza Arzola without the jury fully and completely understanding that she was deemed incompetent to stand trial in this case and they -- and that Dr. Gollaher considered all of the psychological and psychiatric history in her file that was in place before the fire occurred as she made that determination.

11 THE COURT: What is the relevance of whether her attorneys were present during the interview or where the interview took place? That -- I'm talking about this specific designation.

15 MR. THWEATT: I'm sorry, Your Honor. I thought you were asking me a different question. One moment, please. 16, Line 19?

18 I'll withdraw that designation, Your Honor.

20 THE COURT: All right.

21 MR. RAVAL: Your Honor, the next portion is Page 18, Lines 24 and 25; and our objection is hearsay.

24 THE COURT: Why isn't this hearsay, Mr. Thweatt?

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000858 Volume 1

1 MR. THWEATT: Well, it's effect on the listener, the exception there.

3 THE COURT: The objection's sustained.

4 Next one, Mr. Raval?

5 MR. RAVAL: Your Honor, the next one is Page 49, Lines 8 through 16. And our objection there is relevance.

8 THE COURT: Okay. Here's what we'll do on this: I'm concerned that -- first of all, I'll overrule the relevance; but I am concerned that the answer in Line 10 may be misleading because I didn't -- this Court didn't pay for testimony.

13 Any responses to my concern?

14 MR. THWEATT: Perhaps the parties could enter into a stipulation that this Court -- that is, the 269th District Court -- did not pay for the services but, rather, it was the criminal district court of Fort Bend County.

19 THE COURT: Response?

20 MR. RAVAL: We can agree to that.

21 THE COURT: Okay. If y'all want to do a stipulation to take care of that -- because I do think that who pays for an expert's time is relevant. That's common testimony. So y'all take care of it by stipulation.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000859 Volume 1

1 Next, Mr. Raval?

2 MR. RAVAL: Your Honor, the next portion is Page 86, Lines 4 through 24; and our objection is leading.

5 THE COURT: The objection's overruled.

6 MR. RAVAL: And our final portion is Pages 88 through 90; and the same objection, leading.

8 THE COURT: The objection's overruled.

9 MR. RAVAL: That concludes our objections to Dr. Gollaher's deposition excerpts.

11 THE COURT: Okay. So the next one is Overholt?

13 MR. RAVAL: Yes, Your Honor.

14 THE COURT: Okay. Now, tell me who Overholt is.

16 MR. RAVAL: Your Honor, Rick Overholt was hired a few years before the fire to install a fire alarm system at the house at Beretta Court. Annual inspections were done by Mr. Overholt's company.

20 And the Plaintiffs and Intervenor are, in particular, going to refer to a particular report that was done in 2005 in which Mr. Overholt's son made some notes on -- on a report indicating that the back door was locked and there was no access.

25 THE COURT: Okay. So that's who

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000860 Volume 1

1 Mr. Overholt is.

2 MR. RAVAL: Correct.

3 THE COURT: All right. First objection?

5 MR. RAVAL: Our first objection we're withdrawing at Page 5. That was a -- a mistype.

7 THE COURT: All right. Next?

8 MR. RAVAL: Next objection is Page 16, Lines 1 through 9; and our objections are leading, relevance, and speculation.

11 THE COURT: Overruled.

12 MR. RAVAL: Our next objection is to Page 28, Lines 7 through 12.

14 THE COURT: Grounds?

15 MR. RAVAL: The ground is hearsay; and this is in reference to this particular report of 2005 prepared by Mr. Overholt's son.

18 And this portion and the next few deposition excerpts are referring to handwriting by Mr. Overholt's son on the report. So there are multiple layers of hearsay concerns.

22 THE COURT: Okay. Do y'all have a business records affidavit on this?

24 MR. THWEATT: I'm sorry, Your Honor?

25 THE COURT: I mean, on this report? Is

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000861 Volume 1

1 there a business records affidavit on this report?

2 MR. THWEATT: It was produced by the Defendants and by Mr. Overholt in his capacity as a retained witness to us at his deposition.

5 THE COURT: Okay. Well, have you laid a predicate for a business records document then?

7 MR. THWEATT: In the deposition I believe we have, Your Honor.

9 THE COURT: Okay. I'll give you a second. Try and figure out where you've laid that foundation for me, please.

12 MR. THWEATT: All right.

13 Your Honor, on Page 7 of Mr. Overholt's deposition -- or I'm sorry -- Page 8 of his deposition, I've indicated that Mr. Overholt -- quote, (reading) You've handed me some documents. You want to just identify them for the record?

18 He goes through some documents. Oh, I'm sorry. On Page 9 he indicates he's brought a total of seven documents that were responsive to the subpoena that was served ahead of his deposition, and I -- I marked all of those as Exhibit Number 2 to his deposition.

24 We then went into what he does for a living, and he described what he does. And the

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000862 Volume 1

1 Defendants designated this gentleman as an expert.

2 That's why we deposed him on February 17th, 2011.

3 On Page 26 I've handed him Exhibit Number 3. He identifies it on Line 18 -- or I'm sorry -- Line 20, Page 26.

6 (Reading) Yes, it's an inspection form. It's filled out during the inspection by one of my technicians.

9 Question: "And the tech appears to be Christopher Overholt?

11 Answer: "Correct.

12 Question: "Is he related to you?

13 "He's my son.

14 "All right." 15 And we went through that.

16 We asked what Omni charges for that kind of inspection. We identified whose handwriting was on it, and there were no objections to any of this during the time of the deposition.

20 So he's identified it as a business record from Omni; and he's the one who produced it to me at his deposition, Your Honor.

23 Now, I also think that, if I'm not mistaken, that's -- we submitted that as part of our exhibits that were previously admitted in this trial.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000863 Volume 1

1 THE COURT: Is it admitted? Which exhibit is it?

3 MR. THWEATT: I'm sorry. We offered it. They objected to it. Plaintiff's Exhibit 34, which has not been admitted.

6 I would also highlight that as an exception to the hearsay rule we can use this document to show notice. And that's really what it's being offered for.

10 This document was provided as of October the 4th, 2005; and it states in the middle of it, (reading) The rear exit door, key dead bolt is locked with no key access. And the customer's name there is Four J's Care.

15 So one of the reasons why we're offering it, Your Honor, is to show that Four J's had notice of this condition by the people that they hired for fire inspection and testing at that home.

19 THE COURT: All right. As to Page 28, Lines 7 through 12, the objection is sustained in part and overruled in part. I'll allow the testimony for the limited purpose of showing notice.

23 Are these going to be video recorded depositions that you're going to play?

25 MR. THWEATT: Dr. Gollaher's was

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000864 Volume 1

1 videotaped. Mr. Overholt's was not.

2 THE COURT: All right. Remind me before you start Mr. Overholt's deposition that I'll need to give an instruction as to that particular set of lines.

6 MR. THWEATT: Yes.

7 THE COURT: All right. Next?

8 MR. RAVAL: Your Honor, the next portion is Page 28, Lines 19 through 23; and the objection is also hearsay on that.

11 THE COURT: Anything -- any additional argument, Mr. Thweatt?

13 MR. THWEATT: Not beyond what we've already stated. I think -- I hope I've described for the Court what Mr. Overholt's position was and what this document related to sufficiently.

17 THE COURT: It will be the same ruling as to Lines 19 through 23 as -- as I -- same ruling as the ruling was for Lines 7 through 12.

20 MR. RAVAL: Your Honor, the next portion is Page 19 -- Page 29, Line 18, to Page 30, Line 2; our objection is also hearsay.

23 And if I could just direct the Court on Page 29 -- in answer to a question, starting on Line 11 to about Line 14, Mr. Overholt is, I believe, explaining

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000865 Volume 1

1 that particular notes on this report don't -- may not meet the business record exception. It doesn't look like it was something ordinarily done in the course of business.

5 THE COURT: Well, have I completely overruled your hearsay objection or have I said I'll let it in for a limited purpose?

8 MR. RAVAL: Yes, sir.

9 THE COURT: Okay. All right. Let me read this, please.

11 Mr. Thweatt, your response to Page 29, Line 18, through Page 30, Line 2?

13 MR. THWEATT: Well, he's talking about a conversation that he had with his employee, his son, and describing the effect on -- on -- effect of that conversation on him.

17 So my response is effect on listener exception, I think, should apply, as well as the business record predicate that we've laid previously that was sustained in part and overruled in part.

21 THE COURT: The objection to Page 29, Line 18, to Page 30, Line 2 is sustained.

23 Next, Mr. Raval?

24 MR. RAVAL: Next is Page 30, Line 8 to Line 23; and the objection is hearsay.

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000866 Volume 1

1 THE COURT: The objection's sustained.

2 MR. RAVAL: Next portion is Page 31, Line 10 to Line 24.

4 THE COURT: Response, Mr. Thweatt?

5 MR. THWEATT: Your Honor, once again, we urge that there was no objection during the time that his testimony was taken; and we don't think that the hearsay exception would apply to that, even if one was made. But that's my response.

10 THE COURT: This one will be sustained, in part, overruled to show notice, again, just like Page 28, Lines 7 to 12 and 19 to 23.

13 MR. RAVAL: Your Honor, the next portion is Page 32, Line 19, going to Page 32 -- 33, Line 11. The objection is hearsay.

16 THE COURT: Response, Mr. Thweatt?

17 MR. THWEATT: Well, I think on Page 33, Your Honor, Line 12, I asked him to clarify how he knew that -- how he knew what we were talking about.

20 And I said, (reading) Did you know that from the -- from your time of working at Omni?

22 He answered yes; so he established that he had personal knowledge of this. It's not hearsay.

24 THE COURT: The objection's sustained.

25 MR. RAVAL: Your Honor, the next

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000867 Volume 1

1 portion is Page 33, Line 25, going to Page 34, Line 2.

2 The objection is speculation.

3 THE COURT: Overruled.

4 Next?

5 MR. RAVAL: Page 35, Line 14 to Line 21; and the objection is hearsay.

7 THE COURT: Overruled.

8 MR. RAVAL: Next portion is Page 40.

9 The objection is form, leading.

10 THE COURT: Overruled.

11 MR. RAVAL: Next is Page 42, Lines 14 to 16. The objections are hearsay and relevance.

13 THE COURT: How is this not hearsay, Mr. Thweatt?

15 MR. THWEATT: I think it pretty clearly is, Your Honor.

17 THE COURT: The objection's sustained.

18 MR. RAVAL: Next is Page 43, Line 10, going into evidence of subsequent remedial measures and relevance. Should be Line 10 to Line 16.

21 THE COURT: Thank you.

22 Response, Mr. Thweatt?

23 MR. THWEATT: Well, he doesn't identify, Your Honor, why the installations were put in place. So we don't know whether it, in fact, was a

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000868 Volume 1

1 subsequent remedial measure or whether it was just some other motivation for the company.

3 And until that's established, I don't think that the objection is timely yet. And subsequent remedial measures, you've got to demonstrate that the effort was taken in order to remedy the issue at hand.

7 And that hasn't been demonstrated by Four J's as of yet.

8 THE COURT: What are you offering it to prove?

10 MR. THWEATT: Offering it to show that a reasonable and prudent company who's taking care of mentally disabled people certainly had the opportunity to address their helplessness, even in a fire, by installing overhead systems such as overhead sprinklers and that the -- and that they did not.

16 THE COURT: The objection's sustained.

17 MR. RAVAL: Your Honor, the last objection is to Page 49, Lines 14 through 17. The objections are relevance and speculation.

20 THE COURT: 49, Lines 14 to 17?

21 MR. RAVAL: Correct.

22 THE COURT: Okay. I think there must be some mixup because the transcript I'm looking at, Line 14 is in the middle of a question.

25 MR. RAVAL: I think it should be 12 to

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000869 Volume 1

1 15.

2 THE COURT: 12 to 15?

3 MR. RAVAL: I think so, Your Honor, yes.

5 THE COURT: Overruled.

6 MR. RAVAL: That concludes our objections.

8 THE COURT: All right. Mr. Thweatt, you can retrieve the transcripts. Thank you.

10 MR. THWEATT: Thank you.

11 THE COURT: Is there anything else we need to take up before we break for the day?

13 (No response.)

14 THE COURT: Okay. I haven't had a chance to tell y'all this. I want to make sure y'all know beforehand. Sometimes it seems I'll come back from a break or I'll come in in the morning, ready to bring the jury in, and one or both sides ask if they can take up some matters outside the presence of the jury, which I understand things come up from time to time.

21 If that's going to be the case, you need to tell me beforehand. Don't wait until I come in here, ready to call the jury in, to tell me, oh, wait, we've got some stuff we need to take care of.

25 I should be here no later than 8:15

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000870 Volume 1

1 tomorrow morning. So if there's something we need to take up before I bring the jury in, find Deputy Dewey, go to the customer service area of this court, find one of my clerks, and just ask them to let me know that they'd like -- that y'all would like to talk to me before I bring the jury in and I'll come out and we can take care of it as -- you know, 8:15, 8:20.

8 Same goes for when we're on breaks. If for some reason something comes up and you need to talk to me before we bring the jury back from a break, don't wait until the break is over to tell me. Let me know earlier so that we can make sure that we go ahead and start on time and I can address those issues.

14 Anything else?

15 MR. SPARKS: Judge, there is something.

16 We have two witnesses, Amuche Udemezue, and, I think, Chika Irondi, who were former employees of Four J's.

18 Both of them have given depositions in this matter.

19 And at the depositions and after the depositions, both of them felt that there were threatening comments made to them in their native language -- and I'm not certain what that is, but all of them are Nigerian -- that were made -- threatening comments were made to them.

25 And we anticipate them coming tomorrow

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000871 Volume 1

1 to testify; and I'd like to bring to the Court's attention their concern about their safety, one, and the threats that are being made because they are testifying against their former employer.

5 THE COURT: All right. Thank you.

6 I don't need to tell any of the lawyers what their ethical duties are. I've got good lawyers on all sides representing all parties; so I'm not concerned about that.

10 Obviously, there are penal statutes against tampering with witnesses and making threats; and so if -- you know, if -- if any of the -- if there's any evidence of that, we can take care of it accordingly, either through my contempt powers or through a referral to the District Attorney's office.

16 The courthouse is safe. I've got a bailiff; and when she feels like she needs backup, we've got three other bailiffs on this floor, plus 20-some-odd sheriff's deputies in this courthouse alone. So I don't think that there will be anything like that.

21 But if you would like to talk to the bailiff after we close today, you know, to give her more details -- she's obviously a licensed peace officer and basically has more expertise in how to secure a courtroom than myself. I -- I'm the expert in

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000872 Volume 1

1 administering justice. She's the expert in law enforcement when it comes to those types of things.

3 So I understand you'd want to bring that to my attention. I'll just say, you know, if something happens, we'll deal with it appropriately; but I'm sure I'm not going to have any problems with any of the lawyers here.

8 And obviously, you know, if things change, we'll take care of it immediately.

10 MR. SPARKS: Yes, sir. Thank you.

11 THE COURT: Anything else?

12 All right. Y'all are excused. Have a good night. See y'all tomorrow morning bright and early.

15 (Proceedings recessed for the day.)

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000873 Volume 1

1 REPORTER'S CERTIFICATE THE STATE OF TEXAS ) COUNTY OF HARRIS ) 4 I, Annette Peltier, Deputy Official Court Reporter in and for the 269th District Court, Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the preparation of this Reporter's Record is $__________ and was paid by ____________________.

19 WITNESS MY OFFICIAL HAND this the __________ day of ____________________, 2011.

21 Digitally signed by Annette Peltier

Annette Peltier DN: o=VeriSign, Inc., ou=VeriSign Trust Network, ou=www.verisign.com/repository/RPA Incorp. by Ref.,LIAB.LTD(c)98, ou=Persona Not Validated, ou=Digital ID Class 1 - Microsoft Full Service, cn=Annette Peltier, [email protected] ___________________________ Date: 2011.12.12 19:11:04 -06'00'

22 Annette Peltier, Texas CSR 3253 Expiration Date: 12/31/12 23 Deputy Official Court Reporter Harris County, Texas

Cause No. 2009-40925, Wagner Vs. Four J's, et al 000874 Volume 1

1 VOLUME 3 OF ___ REPORTER'S RECORD 2 CAUSE NO. 2009-40925

4 PATTI WAGNER, AS GUARDIAN * IN THE DISTRICT COURT OF OF JENNY ANN WAGNER, AN * INCAPACITATED ADULT * Plaintiff * 6 * VS. * HARRIS COUNTY, T E X A S 7 * FOUR J'S COMMUNITY LIVING * CENTER, INC., ANTHONIA * UDUMA AND GODFREY UDUMA * 9 Defendants * 269TH JUDICIAL DISTRICT

11 JURY TRIAL 12 OCTOBER 18, 2011

14 On the 18th day of October, 2011, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Dan Hinde, Judge Presiding, held in Houston, Harris County, Texas.

19 Proceedings reported by stenographic machine shorthand.

24 KATHLEEN KEESE,CSR Official Court Reporter 25 269th District Court

000875

1 A P P E A R A N C E S:

3 Mr. L. Lee Thweatt SBN: 24008160 Mr. Joseph D. Terry SBN: 24013618 TERRY & THWEATT, P.C.

One Greenway Plaza, Suite 100 Houston, Texas 77046-0102 713.600.4710 COUNSEL FOR PLAINTIFF

10 Mr. James C. Plummer SBN: 16075700 Mr. Amar Raval SBN: 24046682 PLUMMER & KUYKENDALL 4203 Montrose Blvd., Suite 270 Houston, Texas 77006 713.522.2887 COUNSEL FOR DEFENDANT

17 Mr. Shelton Sparks SBN: 06507160 SHELTON SPARKS & ASSOCIATES, L.L.C. Cordell Street Houston, Texas 77009 713.862.5533 Ms. Tiffany C. Harvey SBN: 24067343 THE LAW OFFICE OF TIFFANY HARVEY 706 Cordell Street Houston, Texas 77009 832.498.7076 COUNSEL FOR INTERVENOR

000876

1 I N D E X VOLUME 3 2 OCTOBER 18, 2011

4 Page PROCEEDINGS ................................. 6 WITNESSES: 7 Direct Cross Voir Dire Vol WYLETTE TAYLOR 6 30 3 43 3 ANTHONIA UDUMA 47 103 3 CHIAKA IRONDI 107 114 3 11 116 3 126 3 RICK OVERHOLT 130 3 by deposition AMUCHE UDEMEZUE 162 189 3 191 3 15 230 3 KEVIN KERN 231 255 3 256 3 17 264 265 3 DR. KAREN GOLLAHER 267 3 by deposition Plaintiff rests ............................. 307 Intervenor rests ............................ 307 Motion for Directed Verdict ................. 308 Ruling ...................................... 314 Motion by Defendant ......................... 314 Ruling ...................................... 317 Court Reporter's Certification .............. 320

000877

1 PLAINTIFF'S EXHIBIT INDEX

3 NO. DESCRIPTION ID OFFER ADMIT VOL 4 41 Four J's tax return 81 81/88 3 5 42 Four J's tax return 81 81/88 3 6 44 Esperanza Arzola Annual 56 3 Individual Service Plan Dr. Kirk Lockwood's 54 54/56 56 3 8 notes 9 53 Kevin Kern resume 234 235 235 3 10 54 304 304 304 3 11 56 304 304 304 3 12 57 304 304 304 3

14 * * * * * * *

16 DEFENDANT'S EXHIBIT INDEX

18 NO. DESCRIPTION ID OFFER ADMIT VOL 19 23 Minutes of Staff 223 3 In-Service Training Amuche Udemezue's 217 3 21 Service Logs regarding Esperanza Arzola 23 * * * * * * *

000878

1 INTERVENOR'S EXHIBIT INDEX

3 NO. DESCRIPTION ID OFFER ADMIT VOL 4 3 Inspection report 304 305 306 3 (Limited Admission) Certified Copy of 14 3 6 Wylette Taylor's Birth Certificate Pictures taken in 25 26 27 3 8 2010 of Beretta Court

11 * * * * * * * *

000879

1 P R O C E E D I N G S 2 THE COURT: Good morning, please be seated.

4 BAILIFF: All rise.

5 (The jury present, proceedings resumed 6 in open court as follows.)

7 THE COURT: Thank you. Please be seated.

9 Mr. Thweatt, call your next witness.

10 MR. THWEATT: Your Honor, I believe Mr. Sparks is going to call his client.

12 THE COURT: All right.

13 MR. SPARKS: Yes. Tanya Wylette Taylor.

14 BAILIFF: Stand here. Face the Judge.

15 He will swear you in.

16 (Witness placed under oath.)

17 THE COURT: Please be seated.

18 You may proceed.

19 WYLETTE TAYLOR, having been placed under oath, testified as follows: 21 DIRECT EXAMINATION BY MR. SPARKS: 23 Q. Ms. Taylor, please state your name for the record.

25 A. Wylette Taylor.

000880

1 Q. Ms. Taylor, you are here in a capacity of the guardian for Derrick James, are you not?

3 A. Yes.

4 Q. Tell the Court, or the jury, if you would, how you became his guardian.

6 A. I went to probate court, and I asked for guardianship.

8 Q. And Derrick has been in your care, custody and control for how long?

10 A. Seven years.

11 Q. Seven years?

12 A. Yes.

13 Q. And tell the jury how you first came to meet and know Derrick James.

15 A. Well, I've known Derrick all his life.

16 We've grown up together. We stayed in the same household throughout most of his life until he was 16.

19 Q. And who do you know Derrick James' mother to be?

21 A. Tanya James.

22 Q. So Tanya James is Derrick James' mother; is that correct?

24 A. Yes.

25 Q. And who is Tanya James in relationship to

000881

1 you?

2 A. My sister.

3 Q. Your sister?

4 A. Yes.

5 Q. Okay. And who is your -- do you have the same mother and father?

7 A. We have the same mother.

8 Q. Same mother?

9 A. Yes.

10 Q. Okay. And did you ever live together at one point in time?

12 A. Yes.

13 Q. Okay. Did you ever come to a point in time when you were separated from your sister?

15 A. Yes.

16 Q. When was that?

17 A. When I was 8.

18 Q. Okay. Tell the jury what you know about that situation.

20 A. CPS came in and took myself, Derrick and my other nephew, Eric, because my mom was having problems with, I guess, a boyfriend at that current time. And they separated us, but Tanya was old enough to stay so they let Tanya stay with mom.

25 Q. So did she ever come back to live with you

000882

1 again?

2 A. No. We never lived together, but we've seen them because they stayed -- well, when we got back to our great aunt, Ms. Tigner -- 5 Q. Yes.

6 A. -- they stayed around the corner. So we used to see them all the time.

8 Q. So who was the other nephew that you mentioned?

10 A. Eric James.

11 Q. Who was the parent of Eric?

12 A. Felicia James.

13 Q. And who was Felicia in relation to you?

14 A. My oldest sister.

15 Q. So in terms of your siblings, you have Felicia James, who is your older sister; is that correct?

18 A. Yes.

19 Q. And then Tanya James?

20 A. Yes.

21 Q. And then you?

22 A. Yes.

23 Q. And Felicia James' child is -- 24 A. Eric James.

25 Q. And Tanya's child is --

000883

1 A. Derrick James.

2 Q. And you mentioned an aunt, Ms. Tigner. Is that right?

4 A. Yes.

5 Q. How was she related to you? Was she related to -- was she your mother's sister or what?

7 A. Yes.

8 Q. She was your mother's sister, okay.

9 Now, how did you come to know about Tanya James, in reference to the Four J's incident and the fire giving rise to the lawsuit we have today?

13 A. Well, I asked about Derrick's ACH program service. And when I switched it, they recommended him to see a psychologist by the name of Dr. Lockwood. And upon us arriving, Dr. Lockwood informed me that he used to have a patient by the name of Tanya James but she had died. And I was, like -- you know, I was inquisitive. So I looked into it a little further.

21 Q. And what did you find out and where did you look?

23 A. The first step I took, I called the coroner's office, the vital statistics, you know, to see if they had a Tanya James in their records that

000884

1 had passed away in 2008. And, of course, I spoke with the lady and she told me that they did.

3 Q. And what did you do after that?

4 A. I went and got her death certificate.

5 Q. Okay. And did you learn anything from it?

6 A. On the death certificate, it said that she died in, in a fire intentionally set and of smoke inhalation. And I was, you know, I was, like, wow, she burned to death, you know. So I kind of spoke with my husband about it. And he informed me that, you know, I should look into it a little further. So I seen the address on the death certificate, so I went out to the house.

14 Q. And when you went out there, what did you, what did you see? What, what did you observe? What did you find, if anything?

17 A. I seen a badly burned structure of a house, still standing two years later. And I took the pictures of the outside. I took pictures of the inside. I seen the medicine, people's medicines still laying on the floor, clothes everywhere, garbage everywhere, like someone had been there doing shelter or just, you know, whatever they were doing in there. And I was like, wow, two years later, it's still open to the public. Anybody can just walk in,

000885

1 you know. That's what I am thinking to myself when I am taking pictures. And it was eerie. But at the same time, I kind of felt like, you know, okay, I felt, I felt her presence there a little, you know.

5 Because I kept going to this one particular bathroom over and over. No matter how many times I walked around the house, I kept going back to this one particular bathroom which later I found out that's where she was found, in that one particular bathroom.

10 Thank you.

11 (Crying.)

12 Q. (By Mr. Sparks) There have been some questions in reference to the idea that Tanya, having been over at the Beretta Court property since sometime in 2002, that she didn't have a family. You are aware of that question being raised, are you not?

17 A. Yes.

18 Q. And there has been some question regarding the idea of whether or not Derrick James is actually the heir to this Tanya James here. You are aware of that, correct?

22 A. Yes.

23 Q. And while you were at the property, did you find anything?

25 A. I found a binder that had -- it was closed.

000886

1 And the spelling of the name was T-o-n-y-a James.

2 And I was like, well, you know, I didn't really want it to be hers. But when I opened it, it was hers.

4 It had all her information in it, and I found that picture in the -- when I first opened it, it was that picture and I knew it was her (indicating).

7 Q. And that binder has been marked as Exhibit 1 in your deposition. And this is -- is this a true and accurate copy of what you found?

10 A. Yes.

11 Q. And in this binder, is this the picture that you made reference to?

13 A. Yes.

14 Q. And when you saw this picture, did you recognize this individual to be your sister?

16 A. Yes.

17 Q. And that's the same picture that has been blown up and is right there; is that correct?

19 A. Yes.

20 Q. And so you knew that to be your sister?

21 A. Yes.

22 Q. Now, I also want to show you, if I may, some documentary evidence regarding some certificates.

24 Now -- 25 THE COURT: Is this document in

000887

1 evidence?

2 MR. SPARKS: It is, Your Honor.

3 THE COURT: Which exhibit are you referring to?

5 MR. SPARKS: This is Exhibit 19. We are going to put in 19, 20, 21, 22, 23, 25.

7 Q. (By Mr. Sparks) Can you see that on your screen?

9 A. Yes.

10 Q. What is that?

11 A. My birth certificate.

12 Q. That's your birth certificate?

13 A. Yes.

14 Q. At the bottom, can you show the jury where -- that's your name; is that correct?

16 A. Yes.

17 Q. And your date of birth is what? 18 A. 2/26/76.

19 Q. And the person there who is your mother is whom?

21 A. Mary Lee James.

22 Q. Mary Lee James? Okay. And she was from?

23 A. Missouri.

24 Q. Missouri?

25 A. Arkansas. I mean Missouri.

000888

1 Q. And your father is whom?

2 A. Wiley Taylor.

3 Q. Is that his proper spelling of his name?

4 A. Yes.

5 Q. Now, I want to show you next, if I may, the certificate of birth of Tanya James.

7 A. Uh-huh.

8 Q. Tanya Chevette James. And who was her mother?

10 A. Mary Lee James.

11 Q. And where was she born?

12 A. She was born at Jefferson Davis Hospital in Houston.

14 Q. Okay. Where was Mary Lee James from?

15 A. Missouri.

16 Q. Missouri.

17 Does that look like the same signature that's on your birth certificate?

19 A. Yes.

20 Q. And you have known your mother's handwriting, and would you recognize it when you saw it?

23 A. Yes.

24 Q. Does that look like the handwriting of your mother?

000889

1 A. Yes.

2 Q. I want to next show you the birth certificate of Derrick Leon James. Can you see that?

4 A. Yes.

5 Q. And what hospital was he born?

6 A. Jefferson Davis.

7 Q. And who is listed as his mother?

8 A. Tanya Chevette James.

9 Q. And on there, who is listed as the grandmother, in the right-hand corner?

11 A. Mary Lee Taylor.

12 Q. And does that look like the signature of your mother?

14 A. Yes.

15 Q. Now, on your birth certificate, it was Mary Lee -- 17 A. Taylor.

18 Q. -- Taylor. Right?

19 A. Yes.

20 Q. And -- I'm sorry, on your birth certificate it was Mary Lee James.

22 A. In the column where it says "parent"?

23 Q. Yes.

24 A. It's Mary Lee James. But her signature is Mary Lee Taylor.

000890

1 Q. Okay. And when, when you were born, she was married to your father; is that correct?

3 A. Yes.

4 Q. When Tanya James was born, she was not; is that right?

6 A. Yes.

7 Q. That's why y'all have different last names?

8 A. Yes.

9 Q. And that's why Derrick has the last name of his mother; is that correct?

11 A. Yes.

12 Q. Now, on the Application for Guardianship -- Tanya was taken into the Harris County Guardianship Program, was she not?

15 A. Yes.

16 Q. And I want to show you this document, which was filed in probate court back in, looks like July of 1997, the Application for Guardianship of Person.

19 Do you see the name there where it says for Tanya, in the left-hand corner -- 21 A. Yes.

22 Q. -- Tanya James at 2702 Little York?

23 A. Yes.

24 Q. Do you see where it says Mary Taylor, the mother?

000891

1 A. Yes.

2 Q. Is that the right spelling of your mother's name?

4 A. No. 5 Q. Did you ever know her to live at that address, 4199 Trail Lake?

7 A. Yes.

8 Q. How did you know that to be an address where she was at?

10 A. I used to pick her up.

11 Q. What kind of facility was that?

12 A. It was a group home.

13 Q. Group home?

14 A. Yes.

15 Q. On the next page to this document, it has at the bottom "family." Do you see that?

17 A. Yes.

18 Q. And the siblings of Tanya James are whom?

19 A. Felicia James and Wylette Taylor.

20 Q. And that Wylette Taylor on the right-hand side, was that you?

22 A. Yes.

23 Q. Did you ever live at 2417 Rosalee?

24 A. Yes.

25 Q. Number 1?

000892

1 A. Yes.

2 Q. And 2702 Little York, do you recognize that address?

4 A. No. 5 Q. No?

6 What about Elvira Tigner, does that name sound familiar to you?

8 A. Yes.

9 Q. Who was she?

10 A. Our aunt.

11 Q. Your aunt?

12 A. Uh-huh.

13 Q. Is that address of 3102 Nagle, do you recognize that address?

15 A. Yes.

16 Q. How do you recognize that address?

17 A. That's where we lived.

18 Q. That's where you lived?

19 A. Uh-huh.

20 Q. So once you found these documents, did it confirm to you that the same person of this Tanya James that passed away in the fire on September 5th of 2008 is the same Tanya James that's in that picture, who is the same Tanya James that is your sister?

000893

1 A. Yes.

2 Q. Now, I want to show you the death certificate of Mary Lee Taylor. Do you see that?

4 A. Yes.

5 Q. And the individual who is listed on there as her daughter giving the information, is that you?

7 A. Yes.

8 Q. And this is the death certificate of Tanya James.

10 MR. SPARKS: Bring that down a little bit.

12 Q. (By Mr. Sparks) Can you see that she's got two spellings of her name? Is that correct?

14 A. Yes.

15 Q. T-a-n-y-a and T-o-n-y-a. Is that right?

16 A. Yes.

17 Q. And on the documents at Four J's, her name was spelled T-o-n-y-a. Is that correct?

19 A. Yes.

20 Q. But on the documents you guys had, it was T-a-n-y-a?

22 A. Yes.

23 Q. But in your mind, the same -- it was still your sister?

25 A. Yes.

000894

1 Q. I want to show you a photo, if I may, of -- tell me if you recognize this photo and who are the persons therein.

4 A. My mother and my sister.

5 Q. I'm sorry?

6 A. My mother and my sister.

7 Q. Okay. Can you point to and identify each individual; and for that individual you identify, describe a piece of clothing they are wearing?

10 A. The lady in the green jacket is our mother, and the lady in the white sweater is my sister.

12 Q. When you say "the lady in the green," is it with the purple on with the heart around her chest, is that Mary Lee James?

15 A. Yes.

16 Q. And the lady who she has her arm, in the white, is that Tanya James?

18 A. Yes.

19 Q. That's your mother and sister?

20 A. Yes.

21 Q. That's the same individual that's right here on this photo here (indicating)?

23 A. Yes.

24 Q. The same individual whose photo that you found in this book here when you went out to the

000895

1 facility at Beretta Court?

2 A. Yes.

3 Q. Now, you are aware, are you not, that there were pictures taken by the Houston Fire Department on September the 4th of 2008?

6 A. Yes.

7 Q. And you have seen those documents; is that right?

9 A. Yes.

10 Q. I want to ask you, have you seen this one before?

12 A. Yes.

13 Q. And are you of the opinion, based on the information from the Houston Fire Department, that that was Tanya James that was taken from the Beretta Court property?

17 A. Yes.

18 THE COURT: Which exhibit are you referring to?

20 MR. SPARKS: Judge, I am referring to photos from Intervenor's Exhibit Number 1.

22 THE COURT: Okay. Just for the record, make sure we are keeping of track of which exhibits we are referring to.

25 MR. SPARKS: Yes, sir. And there are

000896

1 approximately four or five of these, the same exhibit number, Judge.

3 Q. (By Mr. Sparks) And you have seen this one before too; is that correct?

5 A. Yes.

6 Q. And this is also from the same batch of photos we got from the fire department, right?

8 A. Yes.

9 Q. You have seen this before, yes?

10 A. Yes.

11 Q. All these are photos of the various burns and things that Ms. James had on September 4, 2008; is that correct?

14 A. Yes.

15 Q. Do you recognize that one?

16 A. Yes.

17 Q. What about that one?

18 A. Yes.

19 Q. Is that of a foot?

20 A. Yes.

21 Q. It looks like a foot, if I am not mistaken.

22 Right foot. Do you recognize that?

23 A. Yes.

24 Q. Now, were you ever -- 25 MR. SPARKS: And, Judge, also for the

000897

1 record, I want to go to Intervenor's Exhibit 25. I have a couple pictures from there.

3 THE COURT: 25 is not in evidence.

4 MR. SPARKS: All right. I thought we had agreed to that; but if we haven't, that's fine.

6 THE COURT: Is there an objection to Exhibit 25?

8 MR. PLUMMER: Yes, Your Honor.

9 THE COURT: All right.

10 Q. (By Mr. Sparks) When you went out to the facility, you said you took some photos. Is that correct?

13 A. Yes.

14 Q. Have you seen those photos since then?

15 A. Yes.

16 Q. And they were made by you?

17 A. Yes.

18 Q. Would you recognize them to be photos that you took at the facility of Beretta Court?

20 A. Yes.

21 Q. Would you recognize them again if you saw them?

23 A. Yes.

24 Q. Would they be true and accurate photos that were taken by you on -- do you know what date they

000898

1 were taken?

2 A. I forgot the date, the exact date. But it should be stamped on the pictures.

4 THE COURT: I need you to speak up, please, ma'am.

6 THE WITNESS: Okay.

7 A. It should be stamped on the pictures, though.

9 MR. SPARKS: Judge, I want to approach the witness, see if she recognizes these, if I may.

11 THE COURT: Yes.

12 Q. (By Mr. Sparks) Would you take a look at Exhibit 25, if you would, and tell the jury, or tell the Court, whether or not you recognize those photos and, if so, how you recognize them.

16 (Referenced documents tendered to the 17 witness.)

18 A. Yes, I do. These are the pictures that I took.

20 Q. (By Mr. Sparks) Are they a true and accurate reflection of what you saw when you took the pictures on the day that they were taken?

23 A. Yes.

24 MR. SPARKS: Judge, I would like to tender these to counsel.

000899

1 (Referenced documents tendered to 2 counsel.)

3 MR. SPARKS: They have been previously provided. I would like to offer them into evidence at this time.

6 THE COURT: Do you have an objection, Mr. Plummer?

8 MR. PLUMMER: Your Honor, just one second, if I can look at them, please.

10 The objection we have -- we have no objections to most of them. There is one we have an objection to, on the grounds of relevancy.

13 THE COURT: All right. Approach the bench, please.

15 (Bench discussion.)

16 THE COURT: All right. What's the relevance of this one, Mr. Sparks?

18 MR. SPARKS: Judge, Elisha Campbell was a resident, one of the four individuals that was the tenants there at the Beretta Court property. This shows that she was there, and this also shows what was left at the facility when my client went out and took these pictures and also found the binder.

24 THE COURT: Okay.

25 MR. PLUMMER: I don't see the relevance

000900

1 to this particular photograph. There is no debate that she was a resident. That was not an issue. So it's redundant, if nothing else. But it is a mere photo. It is not relevant, has no bearing.

5 THE COURT: The objection is overruled.

6 All of Exhibit 25 is admitted.

7 MR. PLUMMER: Very well, Your Honor.

8 (Open court.)

9 THE COURT: Objection overruled.

10 Exhibit 25 is admitted.

11 (Intervenor's Exhibit 25 is received in 12 evidence.)

13 Q. (By Mr. Sparks) Ms. James, I want to show you this photo. Tell the jury what it is a picture of, if you would.

16 A. It's the picture of the outside of the house.

18 Q. Would you speak up, please?

19 A. A picture of the outside of the house.

20 Q. Over on Beretta Court?

21 A. Yes.

22 Q. And you took this photo yourself, did you not?

24 A. Yes.

25 Q. And this here?

000901

1 A. Is also the outside of the front of the house.

3 Q. And do you recognize this photo?

4 A. Yes. That's in the garage.

5 Q. And what about this?

6 A. That's in one of the bedrooms down the hall.

7 I think the front bedroom.

8 Q. I show you this picture.

9 A. That's the bathroom.

10 Q. That's the bathroom?

11 A. Yes. The one that I kept going back to.

12 Q. And when you went out there, obviously you didn't have any restraint to allow you entrance into the property. Is that correct?

15 A. No. 16 Q. Now, let me show you this document here.

17 What is this?

18 A. That is a medication packet of one of the clients that lived there.

20 Q. That was still there some, almost two years later?

22 A. Yes.

23 Q. Open to the public?

24 A. Yes.

25 Q. Can you describe this photo here?

000902

1 A. That's the kitchen area.

2 Q. And that one?

3 A. This is the living room area where in the back, I guess, they stored clothes; but it, I guess, during the fire the wall got torn down or whatever.

6 You can see the closet area. But this is the living room area.

8 Q. Does that look familiar to you?

9 A. Yes.

10 Q. You took that photo?

11 A. Yes.

12 Q. Any idea what it is of?

13 A. That's, like, a walkway going into the kitchen area.

15 Q. Now, do you know whether or not Ms. James had a will?

17 A. No, she didn't.

18 Q. And do you know whether or not she had any, any debts when she passed away?

20 A. Not that I'm aware of.

21 Q. And do you know of any reason why her estate needed to be administrated?

23 A. No, not that I am aware of.

24 Q. The only heir that you knew that she had was Derrick James; is that correct?

000903

1 A. Yes.

2 Q. Did you know whether or not she owned any property?

4 A. No, she didn't.

5 MR. SPARKS: Pass the witness, Your Honor.

7 THE COURT: Mr. Thweatt?

8 MR. THWEATT: No questions, Your Honor.

9 THE COURT: Mr. Plummer?

10 MR. PLUMMER: Thank you, Your Honor.

11 CROSS-EXAMINATION BY MR. PLUMMER: 13 Q. Ms. Taylor, let me understand this a little bit. I believe you said Ms. James was removed from the home -- or you were removed from the home she lived in when you were about 8 years old. Is that correct?

18 A. Yes.

19 Q. And after that, at some point in time, she lived around the corner from you. Is that correct?

21 A. Yes.

22 Q. What was her living arrangement then?

23 A. She was staying with my mother.

24 Q. What was her health condition like at that point in time?

000904

1 A. As far as I knew she was fine, besides her mental stability.

3 Q. Okay. So she was mentally retarded her whole life; is that correct?

5 A. Yes, she was mentally challenged.

6 Q. It wasn't the result of any kind of traumatic injury, anything of that sort?

8 A. No. She was born that way.

9 Q. Okay. Now, how long was it that you lived around the corner from her?

11 A. Up until they took her away from my mom.

12 Q. And how old you were you then? 13 A. 16, I believe. 16, 17.

14 Q. Was she older than you?

15 A. Yes.

16 Q. How much older?

17 A. Five, between five years or so. 18 Q. So she was about 20 or 21 when they took her away from her mother?

20 A. Yes.

21 Q. When you say they took her away, who took her away from your mother?

23 A. Adult Protective Service.

24 Q. Okay. Why did they take her away from your mother?

000905

1 A. My mom had a mentally -- 2 Q. A breakdown?

3 A. Yeah.

4 Q. Okay. Was she put in a group home, your mother put in a group home after that?

6 A. Yes.

7 Q. Okay. And was that in Houston?

8 A. Yes.

9 Q. Okay. So at about -- when Ms. James is about 21 or thereabouts, was -- she was taken away from your mother's home and put in a group home. Is that correct?

13 A. I was unaware where they were putting her.

14 Q. Okay. You were 16. Okay. All right.

15 Now, from 16 years old to the time Ms. James died, is it fair to say that you had no contact with your sister?

18 A. Correct.

19 Q. How many years was that?

20 A. I don't know.

21 Q. How old are you now? 22 A. 35.

23 Q. Okay. Okay. So from the time you were 16 to, what, your early 30s, you had had no contact with your sister?

000906

1 A. No. 2 Q. Now, I believe you said your sister had a child, and that was Derrick. Is that correct?

4 A. Yes.

5 Q. And was Derrick born with disabilities?

6 A. Yes.

7 Q. Physical or mental?

8 A. Mental.

9 Q. Okay. Do you recall how old Derrick was when he was diagnosed with his disabilities?

11 A. He was born that way also.

12 Q. Okay. And for a while, he stayed in the same household as you; is that correct?

14 A. For a while we all stayed in the same household with my mother.

16 Q. When was it that you ceased to live with Derrick?

18 A. When my aunt -- Derrick is very -- had gotten aggressive, and my aunt couldn't control him anymore. So I believe around 16, she gave him back to Child Protective Services.

22 Q. Okay. And when he went with Child Protective Services, do you recall where he lived then?

25 A. No.

000907

1 Q. How long was he with Child Protective Services?

3 A. Up until the time that I became aware of where he was. Once I became old enough to where I could look for him, I called his caseworker, and his caseworker gave me the address to where he was. And I used to get him on weekends and holidays. And once they, I guess, that particular place where he was closed down, and they switched him to another place.

10 And this place had enrolled him into a home community based service program.

12 Q. Was that the HCS Program?

13 A. Yes.

14 Q. Home and Community-based Services Program?

15 A. Yes.

16 Q. Okay.

17 A. And once had they enrolled him into that, I guess they wasn't doing what they supposed to do, and the lady from the HCS Program contacted me. And that's how I ended getting Derrick.

21 Q. When you got Derrick, you became his foster parent?

23 A. At that particular time, yes.

24 Q. How old was Derrick about that time? 25 A. 21, I believe. 21, 22.

000908

1 Q. How severe is his retardation?

2 A. He is severely.

3 Q. Okay. Can you give me a general idea of what he can and can't do?

5 A. He can walk, he can talk, he can feed hisself. I have to bathe him. I have to dress him.

7 I help him brush his teeth because I'm trying to get him to do it on his own. I take him to his doctor's appointments and things. He can't function on his own. You know, like if I wanted him to catch the bus to the doctor, he won't be able to do that.

12 Q. Okay. And he's been that way since birth?

13 A. Yes.

14 Q. What about the aggression, how is that? Has he -- has that been reduced, his level of aggression, or do you medicate for that?

17 A. We medicate for it.

18 Q. What medications?

19 A. He takes about 14 different pills. I know he takes Depakote. Carbatrol. Clonidine.

21 Clonazepam. 1 milligram, 2-milligram. He takes a lot of different medications. I can't -- I know he takes Seroquel, 100, 200 and 400-milligram. And I can't think of the rest of them.

25 Q. Okay.

000909

1 A. But he takes a lot of them.

2 Q. Okay. Now once you made this discovery, I think you said some doctor told you, Dr. Lockwood -- 4 A. Lockwood.

5 Q. -- told you he had a patient that had died.

6 A. Yes.

7 Q. Once you made this discovery and discovered it was your sister that you believe died in this fire, Derrick filed this lawsuit; is that right?

10 A. Yes.

11 Q. Okay. And the lawsuit was already going on, but you all intervened in this lawsuit; is that right?

14 A. Yes.

15 Q. Do you remember the date it was filed?

16 A. I'm not sure of the date.

17 Q. Okay.

18 MR. PLUMMER: Judge, we would ask the Court to take judicial notice of its file and the Plea in Intervention that was filed in this matter, and that Plea in Intervention was filed September 3, 2010.

22 THE COURT: Any objection?

23 MR. SPARKS: No objection, Judge.

24 MR. THWEATT: No, Your Honor.

25 THE COURT: The Court will take judicial

000910

1 notice.

2 MR. PLUMMER: Okay. May I approach the witness, Your Honor?

4 THE COURT: Yes.

5 Q. (By Mr. Plummer) Let me show you a copy of the Court's filed Plea in Intervention. And can you tell me who the person is that filed that lawsuit, in paragraph 1?

9 A. Derrick -- in paragraph 2?

10 Q. I'm sorry, 1 or 2.

11 A. Derrick James.

12 Q. I'm sorry. Tell me that again.

13 A. Derrick James.

14 Q. Okay. Now, at the time he filed this lawsuit in September, he was not competent to handle his own affairs; is that right?

17 A. That's correct.

18 Q. Okay. And you had not been appointed his guardian; is that correct?

20 A. Not at that point, no. 21 Q. By the way, is your name anywhere on this Plea in Intervention?

23 A. No. 24 Q. Take your time. You can look through it, if you would like.

000911

1 A. No. 2 Q. Okay. Thank you, ma'am.

3 A. Uh-huh.

4 Q. Now, subsequently, after this was filed, that's when you became a guardian, sometime, I guess, in December?

7 A. Yes.

8 Q. That's because Derrick was incompetent, legally incompetent to handle his affairs; is that right?

11 A. Yes.

12 Q. And your guardianship gives you the right to handle his affairs?

14 A. Yes.

15 Q. And you filed a subsequent Amended Plea in Intervention in December or thereabouts; is that correct?

18 A. Yes.

19 Q. To your knowledge, is -- well, how long had it been since Derrick James had seen his mother?

21 A. He hadn't seen her since they took her away, since Adult Protective Service took her.

23 Q. So he was about what age then?

24 Was he still a child, small child?

25 A. Yeah. He wasn't a small kid. He was like,

000912

1 what, 12, 13, I believe.

2 Q. Okay. You never went to see Tanya James at Beretta Court, correct?

4 A. I was unaware where she was at the time.

5 Q. So I assume that's a yes.

6 A. Yes.

7 Q. And you never went to see her at the facility she stayed at before she went to Beretta Court; is that correct?

10 A. Yes.

11 Q. And other than what you have tried to learn about since this lawsuit was filed, you know nothing about the living arrangement of Tanya James at Beretta Court; is that correct?

15 A. No. 16 Q. You do know what was in the binder that you recovered, correct?

18 A. Yes.

19 MR. PLUMMER: Can I see Exhibit 1, please?

21 (Referenced document tendered to 22 counsel.)

23 Q. (By Mr. Plummer) By the way, in your inquiry about what happened to Tanya and how it happened, you became aware that Esperanza Arzola,

000913

1 another resident, started the fire; is that correct?

2 A. That wasn't until after I retained the lawyer that I found out that.

4 Q. Okay. But that's still your understanding, that she started the fire?

6 A. Yes.

7 Q. And -- okay. Now, when you got this binder, did you look through it?

9 A. Yes.

10 Q. And you read through it?

11 A. Yes.

12 Q. And it had an Individualized Emergency Plan in it; is that correct?

14 A. Yes.

15 Q. And that Individualized Emergency Plan was for Tanya; is that correct?

17 A. Yes.

18 Q. And part of that was a fire evacuation procedure; is that correct?

20 A. Yes.

21 Q. This was, this was a, the binder for her at the Beretta Court; is that right?

23 A. Yes.

24 Q. And in the Individualized Emergency Plan, it talked about what to do in the event of a hurricane,

000914

1 what to do in the event of a flood, tornadoes. It even had what to do in the event of nuclear war and terrorism. Is that correct?

4 A. Yes.

5 Q. And the fire procedure in there, fire evacuation procedure, said that the staff should lead Tanya out physically by her hand, proceed to a designated safe haven across the street and comfort Tanya with reassuring words. Is that what it says?

10 A. Yes.

11 Q. It also describes the circumstances in which she lives in that four-member home, right?

13 A. Yes.

14 Q. The copy you got also had progress notes in it, didn't it?

16 A. Yes.

17 Q. And the progress notes include progress notes from Amuche Udemezue; is that correct?

19 A. Yes.

20 Q. These are basically a diary of what was done every day?

22 A. Yes.

23 Q. By the staff?

24 A. Yes.

25 Q. Now, in addition to the lawsuit that you,

000915

1 the intervention you filed, you, you -- by the way, in addition to Esperanza Arzola as being the person you discovered who started the fire, you also felt that Amuche Udemezue was also responsible for starting -- for this loss; is that correct?

6 A. Yes.

7 Q. And you sued her initially also; is that right?

9 A. Yes.

10 Q. And that lawsuit was filed with the original intervention back in September of 2010, right?

12 A. Yes.

13 Q. And you remember that she gave, Amuche Udemezue gave a deposition in February of 2011, right?

16 A. I was unaware what date; but, yes, I'm aware she gave one.

18 Q. And shortly after that, you dismissed her from it; is that right?

20 A. My lawyers did. I didn't, but yes.

21 Q. You know she was dismissed from the lawsuit?

22 A. Yes.

23 Q. So originally you accused her of being responsible for not saving your sister, and then you let her go. Is that right?

000916

1 A. Yes.

2 Q. What are you asking this jury to do for you in this lawsuit?

4 A. I just want justice -- 5 Q. Okay.

6 A. -- for what was done. I mean, she was unable of capable of doing it on her own. And if I don't get a dime, I would like to have a head stone for my sister. I go to the grave site and see nothing but grass. If I could get a head stone out of all this, I would be fine.

12 Q. Thank you, ma'am.

13 MR. PLUMMER: Pass the witness.

14 THE COURT: Mr. Sparks?

15 MR. SPARKS: Couple questions, Judge.

16 REDIRECT EXAMINATION BY MR. SPARKS: 18 Q. When you were appointed guardian for Derrick, that was in December 2010, was it not?

20 A. Yes.

21 Q. And subsequent to that, you filed an amended -- First Amended Plea in Intervention; is that right?

24 A. Yes.

25 Q. And in that Amended Plea in Intervention,

000917

1 you filed as Wylette Taylor, guardian of Derrick James; is that right?

3 A. Yes.

4 Q. And that was in also December of 2010; is that correct?

6 A. Yes.

7 Q. And you also filed an application and got permission from the Probate Court Number 4, who granted you a guardianship, to have the authority to contract and act on behalf of Derrick James; is that right?

12 A. Yes.

13 Q. And it also gave you back authority to when the original lawsuit was filed in this matter, which was September of 2010; is that right?

16 A. Yes.

17 Q. And all that was within the -- strike that, Judge.

19 And that's the authority that you are operating on today; is that right?

21 A. Yes.

22 Q. Now, Mr. Plummer asked you what are you looking for out of this. Are you looking for anything? I mean, you are not trying to get anything for yourself, are you?

000918

1 A. No. 2 Q. This is all on behalf of your nephew?

3 A. Yes.

4 Q. On this document that -- I mean, on this book that you found there, that Mr. Plummer was asking you questions about it -- 7 A. Yes.

8 Q. Did you also see in there where it says what the policy of Four J's is?

10 A. Yes.

11 Q. Do you see that?

12 MR. SPARKS: Let me publish this for the jury, Judge.

14 THE COURT: Which exhibit is that?

15 MR. SPARKS: This is Intervenor's Exhibit 2?

17 THE COURT: Thank you.

18 Q. (By Mr. Sparks) Let's see if I can get this. Can you read that?

20 A. Yes.

21 Q. Can you read it out loud for the jury?

22 A. "It is the policy of Four J's Community Living Center to provide a safe environment for all consumers. In the event of a disaster or an emergency, safety of the consumer and preservation of

000919

1 life is" -- what -- is the -- I can't see.

2 Q. All right. That's okay.

3 A. My glasses are foggy.

4 Q. Okay. Now, do you think that that policy was followed in reference to the situation giving rise to your sister's death?

7 A. No. 8 MR. SPARKS: Pass the witness, Judge.

9 THE COURT: Mr. Plummer?

10 MR. PLUMMER: Nothing further, Your Honor.

12 THE COURT: Mr. Thweatt?

13 MR. THWEATT: Nothing, Your Honor.

14 THE COURT: Thank you, ma'am, you may step down.

16 (The witness was excused from the witness 17 stand.)

18 THE COURT: Call your next witness.

19 MR. THWEATT: Your Honor, call Anthonia Uduma, please.

21 THE COURT: Raise your right hand.

22 (Witness placed under oath.)

23 THE COURT: Have a seat, please.

24 You may proceed.

000920

1 ANTHONIA UDUMA, having been placed under oath, testified as follows: 3 DIRECT EXAMINATION BY MR. THWEATT: 5 Q. Ms. Uduma, would you state your full name, please.

7 A. My name is Anthonia Uduma.

8 Q. Are you the corporate representative for Four J's Community Living Center in this trial?

10 A. Yes, I am.

11 Q. You are also appearing in this trial in your individual capacity because you have been personally sued as the owner of the house that burned down. Is that right?

15 A. That's what I understand.

16 Q. You understand your house burned down September 4, 2008, do you not?

18 A. Yes, I do.

19 Q. As the corporate representative of Four J's Community Living Center, Inc., you don't believe that Four J's has any responsibility for this fire or the injuries that resulted. Isn't that right?

23 A. I believe Four J's did everything that it is supposed to do to make sure that the employees do what they are supposed to do in case of fire. I

000921

1 believe we did everything that needed to be done.

2 Q. And because you believe that, Ms. Uduma, you don't believe that Four J's has any responsibility for this fire or the injuries that resulted; isn't that correct?

6 A. Based on the effort the company made to make sure that the employees were trained and equipped to handle emergencies, I don't believe they are responsible for the fire.

10 Q. Let me ask it very simply this way, Ms. Uduma, do you believe that Four J's, your company, has any responsibility for the fire or the injuries that resulted?

14 A. Morally, I believe we are responsible.

15 Legally, I don't believe we are responsible.

16 Q. You believe you are morally responsible but not legally responsible. Is that your testimony?

18 A. Yes.

19 Q. The reason that you believe you are morally responsible is because you know what happened that night should not ever have happened. Isn't that correct?

23 A. That's correct.

24 Q. But the reason you are drawing a distinction between the morality and the legality is because if

000922

1 you tell this jury you are legally responsible, you know they have the ability to issue a verdict against your company. Isn't that correct?

4 A. That's not correct.

5 Q. You don't believe that you personally have any responsibility for this fire or the injuries that result either, do you?

8 A. I morally believe -- I mean, I morally believe we are partly responsible for the fire. But legally, I have looked at everything. The company have looked at everything. The state have looked at all the documents. And they find that there no way where we are legally responsible for the fire.

14 Q. That wasn't my question, Ms. Uduma.

15 My question is this: I want to know whether you believe that you personally, separate and apart from your company, have any responsibility for this fire and the injuries that resulted.

19 A. No. 20 Q. Do you believe that you have any moral responsibility, personally as separate and apart from this company, for the injuries and the fire that resulted?

24 A. No. [sic.]

25 Q. So it's just your company that has a moral

000923

1 responsibility; is that right?

2 A. That's right.

3 Q. But your company doesn't have a soul, does it? The company doesn't have feelings, does it?

5 A. It's an entity.

6 Q. It can't, right?

7 A. Yes.

8 Q. Are you aware that although Esperanza Arzola was arrested and charged with arson on the night of the fire, she was later deemed incompetent to stand trial by a judge in Fort Bend County?

12 A. I'm not aware of that.

13 MR. PLUMMER: Judge, may we approach?

14 THE COURT: Yes.

15 (Bench discussion.)

16 MR. PLUMMER: Withdraw our objection.

17 THE COURT: All right. Have a seat.

18 (Open court.)

19 Q. (By Mr. Thweatt) Ms. Uduma, instead of accepting responsibility for either yourself or for your company for this fire, you are asking this jury to blame Esperanza Arzola for the fire and the injuries that resulted; isn't that right?

24 A. I'm asking the jury to look at all the evidence and then determine whether Four J's did

000924

1 everything we are supposed to do, that should have been done.

3 Q. Are you aware that your attorneys filed a motion to designate Esperanza Arzola as a responsible party for this fire?

6 A. That's correct.

7 Q. And, therefore, you are asking this jury to blame her for this fire, are you not?

9 A. She's a competent adult who is just mild mental retardation, and she set up the fire and she accepted setting the fire.

12 Q. You believe that she was a competent adult?

13 A. Yes. And that's why she did not have a guardian.

15 Q. And, therefore, because you believe that she was competent, you are asking this jury to blame her for the entirety of the fire and the injuries; is that right?

19 A. It's not a word about blame. So I'm just letting the jury know who set the fire.

21 Q. Was she to blame for the injuries that resulted, in your opinion?

23 A. I don't know about the word "blame." 24 Q. Was she responsible for the injuries that resulted, in your opinion?

000925

1 A. She was responsible. She is the one that set the house on fire.

3 Q. You don't believe that this fire resulted from anything that any doctor did or failed to do; isn't that right?

6 A. That's correct.

7 Q. You don't believe this fire resulted from anything any nurse did or failed to do; isn't that right as well?

10 A. That's correct.

11 Q. And you are not a doctor, right?

12 A. I'm not.

13 Q. You are not a nurse, right?

14 A. I'm not.

15 Q. You are an accountant by training; isn't that correct?

17 A. That's correct.

18 Q. Now you would agree that the occurrence of this fire was certainly a safety issue at Four J's, was it not?

21 A. No, I don't.

22 Q. You don't agree that the fire was a safety issue?

24 A. I don't.

25 Q. You don't believe that the fire was a

000926

1 healthcare issue at Four J's, do you?

2 A. I don't.

3 Q. You do not?

4 A. I do not.

5 Q. Do you believe that this fire was directly related to any healthcare issue at Four J's?

7 A. No, I don't.

8 Q. Before this fire occurred, you and Four J's knew that Esperanza Arzola had a history of violence toward your staff; isn't that correct?

11 A. That's correct.

12 Q. You knew that she had tried to commit suicide on several occasions?

14 A. Yes.

15 Q. You knew that Esperanza Arzola was bipolar before this fire?

17 A. Yes.

18 Q. You knew that Esperanza Arzola was schizophrenic before this fire?

20 A. I'm not sure of that diagnosis, but -- 21 Q. Have you reviewed the notes of Dr. Kirk Lockwood?

23 A. No, I did not.

24 Q. Do you know who -- who is Dr. Kirk Lockwood?

25 A. Dr. Kirk Lockwood is, is a psychologist that

000927

1 the company contracted to develop behavior plans for Esperanza and other clients that were with Four J's.

3 And his job was to take a look and train the employees and instruct them on what to do if aggression -- if there is aggression or if Esperanza tries to do aggression or tries to elope. He practically wrote down all the plans that the employees should follow.

9 MR. THWEATT: Your Honor, I would offer Dr. Kirk Lockwood's notes to Four J's Community Living Center as a -- 12 THE COURT: Which exhibit are you referring to?

14 MR. THWEATT: Exhibit 49, Your Honor. I apologize. We offer those into evidence at this time.

16 THE COURT: Any objection?

17 MR. RAVAL: Your Honor, we renew our objection as to hearsay.

19 THE COURT: Approach the bench.

20 (Bench discussion.)

21 THE COURT: Have you established a hearsay exception?

23 MR. THWEATT: It goes to notice, Your Honor.

25 THE COURT: Notice of what?

000928

1 MR. THWEATT: She testified she did not know that Ms. Arzola was schizophrenic.

3 THE COURT: Do you have any evidence that she received those notes? Have you established any of that?

6 MR. THWEATT: I can ask her.

7 THE COURT: Right now, the objection is sustained.

9 (Open court.)

10 THE COURT: The objection is sustained.

11 MR. THWEATT: May I approach the witness, Your Honor?

13 THE COURT: Yes.

14 Q. (By Mr. Thweatt) Ms. Uduma, I'm handing you Plaintiff's Exhibit 49, previously marked. Do you recognize that document?

17 A. Yes.

18 Q. Would you tell the jury what it is?

19 A. This is notes of Dr. Lockwood, psychological doctor. But this document doesn't usually come to me. It goes to the case managers. They are the ones that handles all these documents.

23 Q. The case manager is someone that works for your company, correct?

25 A. That's correct.

000929

1 Q. This document, Plaintiff's Exhibit 49, indicates that it is addressed to Four J's Community Living Center, Incorporated, right?

4 A. That's correct.

5 Q. And it's dated August 3, 2008?

6 A. Yes.

7 Q. Which was about a month before the fire?

8 A. Yes.

9 Q. All right.

10 MR. THWEATT: Your Honor, at this time we offer Plaintiff's Exhibit 49 into evidence.

12 MR. PLUMMER: Counsel, may I see it, please?

14 (Referenced document tendered to 15 counsel.)

16 MR. PLUMMER: Thank you.

17 No objection, Your Honor.

18 THE COURT: 49 is admitted.

19 (Plaintiff's Exhibit 49 is received in 20 evidence.)

21 Q. (By Mr. Thweatt) All right. Ms. Uduma, I'm showing you Esperanza Arzola -- Plaintiff's Exhibit 44. This is Esperanza Arzola's Annual Individual Service Plan; isn't that right?

25 A. Yes.

000930

1 Q. This document is prepared by Four J's, true?

2 A. This document was prepared by the case manager and the IBT members. And the IBT members is made up of the case manager, the nurse, the psychologist, that they have directors, and the direct care staff.

7 Q. I'm just asking whether it was prepared by Four J's. And it was, wasn't it?

9 A. Yes.

10 Q. All right. And we go to -- on page 2 of Plaintiff's Exhibit 44, you see the portion that I have highlighted there that says "the history obtained from Richmond State School"?

14 A. Yes.

15 Q. I'll continue reading. "Reveals that at age 12 Esperanza was admit to hospital overnight for sexual abuse. No further details of this incident were available, nor the perpetrator of the abuse situation identified. Esperanza stated she began drinking beer at age 14 and indicates that she has experience with tobacco, cocaine and other substances." 23 Did I read that correctly?

24 A. Yes.

25 Q. "Esperanza stated that she had multiple

000931

1 sexual partners. Records also indicate that she has had several sexually transmitted diseases in the past and possibly traded sexual favors for drugs." Continuing on in that paragraph: "Records indicate" -- 6 MR. THWEATT: Highlight this here.

7 Q. (By Mr. Thweatt) "Records indicate that Esperanza was emotionally, physically and sexually abused by both biological parents to the extent of their parental rights being terminated in November of 1998." 12 Do you see that there?

13 A. Yes.

14 MR. THWEATT: Highlight this portion here.

16 Q. (By Mr. Thweatt) "According to the reports, Ms. Arzola" -- Esperanza's mother -- "was aware that her husband was sexually abusing the children but continued to live with him." 20 Do you see that there?

21 A. Yes.

22 Q. That was known to Four J's before this fire, wasn't it?

24 A. Yes.

25 Q. Highlight this for you, on page 3 of

000932

1 Plaintiff's Exhibit 44.

2 "Esperanza exhibited severe bouts of self-abuse and depression. Reportedly, the parents would verbally assault Esperanza, blaming her for their termination of parental rights and for the scrutiny of law enforcement into their home." 7 A. Yes.

8 Q. Did I read that correctly?

9 A. Yes.

10 Q. "In addition, her parents facilitated an unauthroized departure from Richmond, where they picked her up and took her back to the Dallas area.

13 It was at this time when Esperanza became infected with herpes as a result of the sexual activity between her and her father." 16 Do you see that?

17 A. Yes.

18 Q. That also was known to Four J's before this fire, correct?

20 A. Yes.

21 Q. It does appear in this document, Plaintiff's Exhibit 44, a long history of multiple placements, a variety of different homes. Do you see that there?

24 A. Yes.

25 Q. You know that Esperanza, before this fire,

000933

1 was taking several antipsychotic medications, do you not?

3 A. Yes.

4 Q. She was taking antidepressants before this fire?

6 A. No. 7 Q. She was not?

8 A. She was not on antidepressant for fire. She was on antidepressant for depression and for all that behavior dealing with that issues.

11 Q. I'm not asking whether she was on antidepressants for fire.

13 A. Oh, I'm sorry.

14 Q. I'm asking whether she was taking antidepressants. And she was, wasn't she?

16 A. Yes, she was.

17 Q. You knew that Esperanza's mother had prostituted her when she was younger. You knew that according to the service plan, didn't you?

20 A. Yes. That's what the history said.

21 Q. And you are here telling this jury, despite all of those things that we have just heard about, that Esperanza Arzola was competent on September 4, 2008 when she set that fire?

25 A. Yes.

000934

1 Q. Your company knew all of those things, as well, about Esperanza Arzola, didn't they?

3 A. Could you repeat that?

4 Q. Your company knew all of those things about Ms. Arzola, in addition to yourself; isn't that right?

7 A. The company knew about it.

8 Q. And so did you, right?

9 A. The case managers knew about it.

10 Q. Were cigarette lighters prohibited in the Beretta Court Home?

12 A. Yes. We do not allow cigarette lighters.

13 It's not prohibited, but we do not allow the clients to hold a cigarette lighter.

15 Q. It's not prohibited, but we don't allow the clients to have a cigarette lighter. Is that your testimony?

18 A. That's my testimony.

19 Q. Are there circumstances where a client might be permitted to hold a cigarette lighter in the Beretta Court Home that you owned?

22 A. No. 23 Q. So doesn't that make it prohibited?

24 A. It doesn't because the staff or clients that smoke, we train the employees to hold the cigarette

000935

1 lighter so that they will be able to go outside and light it for them and then retain the cigarette lighter.

4 Q. So the staff can have cigarette lighters?

5 A. Yes.

6 Q. Can staff have pistols?

7 A. No. 8 Q. Can staff have knives?

9 A. For cooking, we have knives at the house where we have to lock it up because of Esperanza's self-injurious behavior.

12 Q. Her self-injurious behavior, meaning she tried to kill herself several times before the fire, right?

15 A. I know of two times. I don't know of several times.

17 Q. On at least two occasions before this fire, Ms. Arzola tried to kill herself; isn't that right?

19 A. Yes.

20 Q. And that's the reason why you would never permit a weapon in the Beretta Court Home that you owned. Is that right?

23 A. The reason the weapon -- we went by what the psychologist put on the behavior therapy plan, and that was that all sharp objects need to be locked up,

000936

1 all liquid need to be locked up. And we did all that. So we went step-by-step from what Dr. Lockwood put on the behavior plan.

4 Q. Dr. Lockwood never approved Ms. Arzola having a cigarette lighter in her personal possession, did he?

7 A. No, he did not. And that's why we did not allow her to keep a cigarette lighter.

9 Q. To your knowledge, was Ms. Arzola's room ever searched to make sure that she did not have a cigarette lighter so that she wouldn't hurt herself or somebody else?

13 A. The way the Home and Community-based Services is structured, the room belongs to her; but when she leaves to go to the bathroom, the staff will go in there and clean up the room and fix up the bed and fix up the dressers and hang her clothes. But in terms of searching her room, there was no reason to search there because they are barely going to her house to take care of her.

21 Q. You could certainly search a room to prevent, say, a suicide attempt, couldn't you?

23 A. Everything that Dr. Lockwood put on the behavior plan to prevent suicide attempt, we did not have it in the room or in the house. It was locked

000937

1 and she was not allowed to go there. We bought her elastic belt. So there was nothing in the room that the staff -- warned the staff to go and search.

4 Q. Ms. Uduma, I'm just asking whether it was possible for Four J's to search her room to make sure that she didn't hurt herself or someone else. That was possible, wasn't it?

8 A. If there was any reason for that, yes.

9 Q. Did Ms. Arzola ever receive a pat-down of her body by any Four J's staff to make sure that she didn't have a cigarette lighter on her clothing?

12 A. We cannot do that. It's just like somebody coming to my house and then search my body to search me. There was no reason for that.

15 Q. Except for the distinction, Ms. Uduma, is that you are the president of a company, you have a college degree, you don't have this history of psychotic behavior, suicide attempts, you are not on medications. That's a big distinction, wouldn't you agree?

21 A. I agree.

22 Q. All right. So neither you nor Four J's ever did anything to ensure that Ms. Arzola didn't have unsupervised access to a cigarette lighter. Isn't that correct?

000938

1 A. That's not correct.

2 Q. You didn't search her person, right?

3 A. We are not allowed to search any of them.

4 Q. I'm not asking you why you didn't search her. I'm just highlighting that you didn't search her. Right?

7 A. No, we didn't. I did not because I didn't work at the house. But the staff is not allowed to search her.

10 Q. The staff never searched her, and the staff never searched her room, correct?

12 A. That's correct.

13 Q. All right. You knew personally, Ms. Uduma, that before the fire Jenny Wagner and Tanya James, due to their disabilities, were completely helpless in the event that a fire broke out in your house, didn't you?

18 A. The only person that was completely helpless was Jenny Wagner. Tanya James could walk and run.

20 Q. Didn't you hear Mr. Plummer, your attorney, read the Individualized Care Plan or emergency plan to Ms. Wylette Taylor a while ago?

23 A. Yes, I did.

24 Q. Didn't you hear him say that in the event of a fire, she has to be walked out of the house by

000939

1 hand, comforted with reassuring words and taken to a safe place? Didn't you hear him say that?

3 A. Yes, he said that. But she was not helpless. I mean, if you tell her, Tanya, let's go, and grab her, she would go with you. If you are running, she would run with you.

7 Q. What about Ms. Wagner?

8 A. Ms. Wagner was the only one that needed total care.

10 Q. How do you know that Ms. James would do those kinds of things if you were never at the house?

12 A. Because I see her. Sometimes I visit the house, and I see how they did her.

14 Q. If a fire broke out, you knew that Tanya James and Jenny Wagner were totally reliant on others to help them escape your house; isn't that correct?

17 A. That's correct.

18 Q. Neither Jenny nor Tanya were ever to be left alone in the event of a fire; isn't that right?

20 A. That's correct.

21 Q. That's what your Individualized Emergency Plan from Four J's says, doesn't it?

23 A. Yes.

24 Q. In fact, the rule at Four J's is that a Four J's employee is, quote, never supposed to leave

000940

1 your consumers unattended. Isn't that correct?

2 A. Yes.

3 Q. That's something that you knew before this fire, right?

5 A. Yes.

6 Q. That's something your company knew before this fire, correct?

8 A. Yes.

9 Q. But there was only one staff member on duty the night of the fire; isn't that right?

11 A. Yes.

12 Q. Even though Four J's own documents in this case show the ratio is supposed to be one person -- one staff person per three consumers, generally.

15 Isn't that correct?

16 A. That's not correct.

17 Q. That's not what your own documents say?

18 A. No. 19 Q. Let's take a look at Plaintiff's Exhibit 37.

20 I will enlarge this.

21 "Shift Assignments. Generally, the shift ratio of one staff to three consumers." 23 Isn't that what it says?

24 A. This is what it says. Because we have some houses that have only three clients. And before this

000941

1 training documents were developed, the state had not passed a rule to expand it to four people in the house. Before it was just three people, three clients per house. So then when they cut the rate, they allowed the providers to add one more to make it four bedroom. So we still have many houses that have only three clients in it.

8 Q. Your policy, Ms. Uduma, right here in this document, Plaintiff's Exhibit 37, says, "Generally, the shift ratio of one staff to three consumers." That's what it says, doesn't it?

12 A. This is not a policy. This is a training guideline that we use to train the staff.

14 Q. You use this document to train residential staff, right?

16 A. Yes. We use it to train the residential staff, to inform them that the house that they are going to work belongs to the clients. So before they use the phone or use anything in the house, they have to get -- to take permission from the clients. So that's what this document was used, to train them on abuse and neglect.

23 MR. THWEATT: Your Honor, I object to the nonresponsive portion of the answer.

25 THE COURT: Please answer the question

000942

1 that is asked.

2 Q. (By Mr. Thweatt) And if you have to put two people into the home, rather than one, to take care of the residents who live there, that costs Four J's money, doesn't it?

6 A. Yes. We have to pay the employees.

7 Q. It's more expensive for Four J's to staff two people in a house than one, right?

9 A. We just have to go by what is the -- 10 Q. That's not my question, ma'am.

11 My question is: It's more expensive for Four J's to staff two people in a group home than one, isn't it?

14 A. Yes.

15 Q. Staffing two people in a home where at least one of the persons who lives there is completely helpless would increase the safety response for the staff members in the event of a fire, wouldn't it?

19 A. Could you repeat the question.

20 Q. Staffing two people, two employee, in the home, where at least one of those residents, like Jenny Wagner, was completely helpless in a fire would certainly increase the safety response of the staff there in the event of a fire. Isn't that right?

25 A. I don't really know if it would increase the

000943

1 safety of that fire because of the panic, I mean, you still will have it.

3 Q. If there is only one staff member on duty, Ms. Uduma, when a fire occurs, at least one of the people in that house at Beretta Court obviously would have been left unattended; isn't that right?

7 A. If the staff panic and run outside, like the one that I had they ran, it would still leave the clients unattended.

10 MR. THWEATT: Objection, nonresponsive.

11 THE COURT: Please answer the question.

12 Q. (By Mr. Thweatt) Ms. Uduma, if there is only one staff member on duty the fire occurs -- 14 A. Yes.

15 Q. -- and at about least one of the people in that house, like Jenny Wagner, is completely helpless in the event of a fire, somebody would have had to have been unattended while the staff member attended to her, correct?

20 A. Can you repeat that question again.

21 Q. Was Ms. Wagner able to walk?

22 A. No. 23 Q. In the event of a fire, somebody had to pick her up, stand up, her out of the bed and walk out of the house with her; isn't that right?

000944

1 A. That's right.

2 Q. So the other three people who lived there in that house would have been left unattended, true?

4 A. Sir, I am misunderstanding your last question. If you can repeat the last part, then I will be able to answer.

7 Q. There are safety rules set up by Four J's to ensure that nobody gets burned or killed in the event of a fire, aren't there?

10 A. Yes.

11 Q. Those rules require that a staff member never leave Jenny Wagner unattended in the event of a fire, right?

14 A. Yes.

15 Q. Those rules also require that a staff member never leave Tanya James unattended in the event of a fire, correct?

18 A. No client should be left unattended in the case of a fire.

20 Q. And if there are four clients and one staff member, simple mathematics tells you, as an accounting major, someone with a master's degree in accounting, that one of those four people, at least, is going to be left unattended while the staff member tends to that person and gets them out of the house,

000945

1 right?

2 A. That is why, when we are placing the clients in the home, we only put one person that requires total care. The other ones, you can at least shout or tell them run, they will be able to run. So that's why we structure the group homes like that.

7 Q. You asked for a clarification of my question. I provided it to you, Ms. Uduma. Do you understand my question that I am asking now?

10 A. I think so. 11 Q. Would you answer it, please?

12 A. I just did.

13 Q. Tanya and Jenny were both left unattended the night of that fire, weren't they?

15 A. That's what I was made to -- I was not there to know exactly what happened.

17 Q. Didn't you ask your employee what happened?

18 A. Yes, I did.

19 Q. Didn't she tell you that she panicked and she ran out of the house?

21 A. She sure did.

22 Q. Meaning she left Tanya and Jenny back by themselves, right?

24 A. Yes.

25 Q. Let me show you a picture from Plaintiff's

000946

1 Exhibit 26. This is page 68 of Plaintiff's Exhibit 26.

3 There is a fire extinguisher in that kitchen in the home, wasn't there, the night of the fire, Ms. Uduma? Do you see that?

6 A. Yes.

7 Q. Here is another view of it. Plaintiff's Exhibit 26.

9 Nobody used that fire extinguisher that evening, did they?

11 A. I don't think so. I wasn't there.

12 Q. Didn't you ask her if she used the fire extinguisher?

14 A. She said she panicked and run out.

15 Q. She never told you she used the fire extinguisher, did she?

17 A. She did not.

18 Q. Does that look like a fire extinguisher that's been used to you?

20 A. I wouldn't know by just looking at the picture.

22 Q. Let me show you another picture from Plaintiff's Exhibit 26. This is page 76 of Plaintiff's Exhibit 26.

25 This is a picture of the rear door in

000947

1 that home. You see that lock there?

2 A. Yes, sir.

3 Q. Requires a key to unlock it; isn't that right?

5 A. Yes, sir.

6 Q. It's a deadbolt lock with a key, true?

7 A. Yes, sir.

8 Q. See how the fire department has knocked the other doorknob off in their efforts to rescue the people who were inside? Do you see that?

11 A. Yes, sir.

12 Q. Did you give a key to the staff member on duty that night?

14 A. I don't usually give keys to the staff members. The supervisors will give keys. But I know when I took the fire marshal to that house, there was always a key in the drawer near the door, where they usually would get it out and open the back door for the fire marshal.

20 Q. Why did you take the fire marshal to the house?

22 A. Because when you have a four-bed, the HCS policy and procedure require that every year the fire marshal will have to come and do inspection to make sure that all the fire systems are working, that the

000948

1 house is in compliance with the state fire code. 2 Q. Because you owned the house and you had to escort the fire marshal through the premises, right?

4 A. No. This was done by Four J's, but I usually take the fire marshals. It has nothing to do with group home, because the house was leased to the company.

8 Q. You had actual personal knowledge of the risk that a fire would present to Jenny and Tanya, didn't you?

11 A. No. 12 Q. You never had any personal knowledge of the risk that a fire would present to incapacitated persons staying in the home that you owned?

15 A. No. I know fire is bad, but -- 16 Q. Well, if you know it's bad, don't you know, then, that it presents a risk to their person and their security and their safety and their health well-being?

20 A. Yes.

21 Q. Despite the knowledge of that risk, Ms. Uduma, you had never installed overhead sprinklers in the Beretta Court house that you owned, did you?

25 A. You keep referring to me. The house was

000949

1 leased to the company.

2 Q. I'm asking you personally. You owned the house, right?

4 A. Yeah. When you -- 5 Q. Despite your knowledge -- 6 MR. PLUMMER: Excuse me, Your Honor. I object to arguing, to interrupting the witness and arguing with the witness.

9 THE COURT: Overruled.

10 A. When you lease a house to anybody -- 11 Q. (By Mr. Thweatt) There is not a question pending.

13 Here's my question: Despite the knowledge, that you personally had, of the risk of fire that presented to Jenny and Tanya, you never installed overhead sprinklers in that house, correct?

17 A. I'm not responsible for -- 18 Q. That's not my question.

19 A. No. 20 Q. My question is whether or not you installed overhead sprinklers in the house. And you didn't, did you?

23 A. No, I didn't.

24 Q. You agree with me that, as the owner of the house, you had a responsibility to keep that house

000950

1 safe for the mentally retarded persons who you knew were living there, don't you?

3 A. Which I did.

4 Q. You agree with me that, as the president of Four J's Community Living Center, your company also had a responsibility to keep that house safe as well, right?

8 A. That's correct.

9 Q. You would agree with me that overhead sprinklers would have made the Beretta Court residence safer than it was on the night of the fire?

12 A. I don't think so. 13 Q. You don't think the sprinklers, which would dowse a fire that's growing, just like the sprinklers we have in our courthouse here, that would make that safer?

17 A. I, I don't know. Honestly, I don't know.

18 THE COURT: We're going to take our mid-morning break. It's 10:00 o'clock. We will start back up at 10:15.

21 (Jury excused from the courtroom.)

22 (Recess.)

23 BAILIFF: All rise.

24 (The jury present, proceedings resumed 25 in open court as follows.)

000951

1 THE COURT: Thank you. Please be seated.

3 Mr. Thweatt, you may continue.

4 MR. THWEATT: Thank you, Your Honor.

5 Q. (By Mr. Thweatt) Ms. Uduma, you agree that you could have installed a fire alarm system in your house that would have automatically notified the fire department in the event of a fire. You agree that could have been done, don't you?

10 A. The fire alarm was installed.

11 Q. It didn't automatically notify the fire department, though, did it?

13 A. It wasn't a requirement at that time -- 14 Q. I'm not asking whether it was a requirement, Ms. Uduma. I'm asking whether or not it would automatically notify the fire department.

17 A. We followed all the rules and guidelines by the City of Houston and by the Department of Aging and Disability.

20 Q. Did it automatically notify the fire department or not?

22 A. The fire alarm, people installed it. We paid them to install it. They followed all the guidelines. So I don't know if it's supposed to notify the fire department or notify somebody else.

000952

1 But I don't know. We contracted them to do it.

2 Q. Do you know a gentleman by the name of Rick Overton?

4 A. I don't know Rick Overton. I only met Rick during a deposition.

6 Q. I'm sorry. Rick Overholt. I misspoke.

7 A. I don't know the person. I only met him when we had the deposition. Because the person that always came to install all the fire alarm for Four J's knew what to do.

11 Q. I'm just asking whether or not you know him.

12 A. No, I don't. I met him during deposition.

13 Q. Rick Overholt works for OMNI Fire & Security, doesn't he?

15 A. That's what he said the day he came.

16 Q. And your testimony is you didn't know him before his deposition in this case; is that right?

18 A. That's right.

19 Q. Are you aware that Mr. Overholt has testified that he installed fire alarm systems in other houses that you owned that automatically notified? Are you aware of that?

23 A. His company, yes. OMNI Alarm.

24 Q. Are you aware that he also testified that he had interaction with you whenever he needed to access

000953

1 your Beretta Court Home or any other homes that you owned?

3 A. He contact me when he schedule all the inspections and which houses they are going to go in.

5 Q. You could have installed overhead sprinklers but you chose not to, right?

7 A. That's not true.

8 Q. You could have installed a fire alarm system that notified the fire department automatically, but you chose not to, right?

11 A. That's not true.

12 Q. You didn't do those things because you didn't want to spend the money to do them, right?

14 A. That's not true.

15 Q. If you had done those things, don't you agree it would have been safer for the residents in the Beretta Court Home?

18 A. I don't know that.

19 Q. How many people does Four J's currently employ?

21 A. I don't know the exact number because I'm not in the payroll department.

23 Q. Is it more or less than a hundred?

24 A. No. It's more than a hundred, should be more than a hundred.

000954

1 Q. When was the company founded?

2 A. The company was founded in 1996. And then incorporated in 1999.

4 Q. What is the net worth of the company?

5 A. Last year the company grossed 7.7 million.

6 Q. And in 2008, the company also grossed 7.7 million, correct?

8 A. I'm sorry. That was 2008 that it grossed 7.7 million.

10 MR. THWEATT: Your Honor, I'd offer Plaintiff's Exhibit 41 and 42 at this time.

12 THE COURT: Objection?

13 MR. PLUMMER: Yes, Your Honor.

14 THE COURT: Grounds?

15 MR. PLUMMER: Relevance. And -- may we approach?

17 THE COURT: Yes.

18 (Bench discussion.)

19 THE COURT: All right. So you are offering the tax returns for Four J's, and your objection is relevance?

22 MR. PLUMMER: Relevance and overly prejudicial. The only relevancy, possible relevance of financial information would be net worth information. So otherwise, all this is prejudicial,

000955

1 and there is plenty of information in the tax return that has nothing to do with this lawsuit. So prejudicial, not relevant.

4 THE COURT: Like what, what is in here that has nothing to do with the lawsuit that would unfairly prejudicial?

7 MR. PLUMMER: Well, may I see a copy of the tax return, Judge?

9 THE COURT: Yes.

10 (Referenced document tendered to the 11 counsel.)

12 MR. PLUMMER: Number one, schedules. I don't see how those are relevant to anything -- 14 THE COURT: How are they unfairly prejudicial?

16 MR. PLUMMER: How much money this company makes has nothing to do with the issues before the Court. And before the jury. All the -- the only reason you offer this is to inflame the jury about somebody's income and success. It's not relevant to liability issues. It's not relevant to the damage issues. And it's only relevant, if anything, on the issue of exemplary damages. And only net worth information is relevant in that context, not gross income, not net income, not expenses, only net worth.

000956

1 THE COURT: Okay. What other evidence do you have on net worth, Mr. Thweatt, besides these tax returns and her testimony?

4 MR. THWEATT: That's all, Your Honor.

5 THE COURT: So are, are you going to have an expert witness that is going to tie this or explain how you develop net worth from someone's tax returns or income statements?

9 MR. THWEATT: No. 10 THE COURT: What in those tax returns show Four J's net worth?

12 MR. THWEATT: Total assets, Judge.

13 Item F on both of the returns, I believe, is probative to the issue of net worth.

15 THE COURT: Does this show anything about their liabilities?

17 MR. THWEATT: I believe every tax return would show that. I don't know -- there is a section for bad debts.

20 THE COURT: So nothing beyond the first page of each of these tax returns is really what you are -- 23 MR. THWEATT: I think that's correct, Judge.

25 THE COURT: Why wouldn't limiting

000957

1 Exhibits 41 and 42 to just the first pages of each return be relevant?

3 MR. PLUMMER: First of all, I'm not sure how a calculation of value and assets is germane.

5 That's number one. I don't know whether it's a value -- 7 THE COURT: That's an argument towards letting in the rest of the tax return, if I've got to look at the rest of the return to find out how they get to total assets.

11 MR. PLUMMER: I understand that, Judge.

12 I don't think the tax return is relevant at all. But if the Court were to allow the tax return, I agree with the Court that the first page would be the only portion that should be admitted. But it would be admitted over my objection. We have already had testimony with regard to that. And that can be elicited -- this asset value can be elicited on testimony without the document being admitted into evidence.

21 MR. THWEATT: It also does go to show that the funds -- they had funds to spend money on safety as well.

24 MR. PLUMMER: That's not an issue.

25 THE COURT: All right. All right.

000958

1 MR. PLUMMER: Judge, this is a classic case of somebody saying, look, you have got a lot of money and therefore you ought to pay. That's what this is about.

5 THE COURT: I understand that. But there are remedies in the Civil Practices and Remedies Code for cabining that through a motion to bifurcate.

8 Nobody moved to bifurcate.

9 MR. PLUMMER: I understand that, Judge.

10 But this is not the evidence that they need. And if they need it, all they have to do is to question her about that asset value. And if she testifies to what it shows, that's it. The document need not go into evidence.

15 MR. THWEATT: I can certainly agree to the first page of both exhibits, if that's a concern.

17 MR. PLUMMER: We aren't going to agree to any of it.

19 THE COURT: So the testimony she just gave plus Exhibits 41 and 42, that's the sum total of your evidence as to the net worth of Four J's?

22 MR. THWEATT: Well, I plan on asking her a few more questions, but I don't have any more documentary evidence, Judge.

25 THE COURT: All right. Right now, I'm

000959

1 going to sustain the objection. I will allow you, obviously, if you need to use these documents to refresh the witness' recollection or if based on how her testimony proceeds you need to impeach her, I will reconsider their admissibility.

6 MR. THWEATT: Okay. Understand.

7 THE COURT: But right now, 41 and 42, the objections are sustained.

9 MR. THWEATT: Thank you, Your Honor.

10 (Open court.)

11 Q. (By Mr. Thweatt) Ms. Uduma, what is the net worth of Four J's?

13 A. I can't really remember what it was in 2008.

14 Q. What is it today? What is the net worth of Four J's today? If you were going to sell it to a potential buyer, how much would you tell them it's worth?

18 A. About 2 million or 4 million. Between 2 and 4 million.

20 Q. You base that upon the U.S. tax returns that Four J's has filed with the federal government?

22 A. No. 23 Q. What do you base it on?

24 A. I would base it on the fact that the, because of the bad economy the state has come back

000960

1 and cut all the funding for it. So that is making it difficult even to pay the employees right now because of the bad economy.

4 Q. In 2008, it was worth more than 2 million, wasn't it?

6 A. I believe so. 7 Q. It was worth at least 4 million in 2008, wasn't it?

9 A. Maybe.

10 Q. Well, don't your tax returns reflect an asset value of at least $4 million for the company in 2008?

13 A. I don't remember what it -- 14 Q. Would you like me to show your tax return to you for 2008 to refresh your recollection?

16 A. No. You already told me what it is.

17 THE COURT: You may approach the witness.

19 MR. THWEATT: Thank you, Your Honor.

20 Q. (By Mr. Thweatt) I'm handing you Plaintiff's Exhibit 41, Ms. Uduma.

22 (Referenced document tendered to the 23 witness.)

24 Q. (By Mr. Thweatt) Do you see that number right there?

000961

1 A. Yes.

2 Q. 4.3 million?

3 A. Yes.

4 Q. And I think you told us earlier that there were gross receipts in 2008 of 7.7 million, right?

6 You told us that earlier in your testimony?

7 A. I think so. Because I got it confused.

8 MR. THWEATT: Your Honor, I will renew my offer of Plaintiff's Exhibits 41 and 42 at this time.

11 THE COURT: Your objection is sustained.

12 MR. PLUMMER: Thank you, Your Honor.

13 Q. (By Mr. Thweatt) The company has over a hundred employees, you told us. What about you personally? You are sued personally in this case.

16 You understand that, right?

17 A. Yes. Which I don't really understand why.

18 I understand I am being sued, right.

19 Q. Well, you understand you owned the house that burned down -- 21 A. Yes.

22 Q. -- where one person unfortunately died, right?

24 A. Yes.

25 Q. What is your personal net worth?

000962

1 MR. PLUMMER: Objection, relevance.

2 THE COURT: Come on up.

3 (Bench discussion.)

4 THE COURT: Have either the Plaintiff or the Intervenors pleaded for exemplary damages against Ms. Uduma in her individual capacity?

7 MR. THWEATT: We have.

8 THE COURT: Mr. Sparks.

9 MR. PLUMMER: Yes.

10 THE COURT: Then why isn't her net worth relevant?

12 MR. PLUMMER: They are entitled to net worth information in exemplary damages cases. It is just totally irrelevant in this case, but I understand the Court's question.

16 THE COURT: I've got a live claim for exemplary damages. How is it totally irrelevant?

18 MR. PLUMMER: I understand, Judge.

19 I withdraw my objection, Your Honor.

20 THE COURT: All right. Thank you.

21 Have a seat.

22 (Open court.)

23 THE COURT: The objection is overruled.

24 Kathleen, would you please restate the question.

000963

1 THE COURT REPORTER: Question: What is your personal net worth?

3 A. I believe I never really sat down and calculated what my personal net worth is because most of the houses I lease, we owe mortgages on them, which is -- I don't really know without sitting down and adding it up.

8 Q. (By Mr. Thweatt) Are you a millionaire, Ms. Uduma?

10 MR. PLUMMER: Judge, I'm going to object to that -- 12 THE COURT: Overruled.

13 MR. PLUMMER: -- on relevance.

14 THE COURT: Overruled.

15 Q. (By Mr. Thweatt) Are you a millionaire, Ms. Uduma, that's the question.

17 A. Am I what?

18 Q. Are you a millionaire?

19 A. No, I'm not.

20 Q. You pay yourself a salary of $26,000 per month from Four J's Community Living Center, correct?

22 A. Yes.

23 Q. You pay yourself a salary of $8,000 a month from Four J's Day Activity Center, another company you own. Isn't that also right?

000964

1 A. That's right.

2 Q. And looking at Plaintiff's Exhibit 33, which was provided to me by your attorneys, there is a list of properties owned by Anthonia Uduma in the Houston area, right?

6 A. Yes.

7 Q. You also own properties in Corpus Christi and Beaumont, Texas, true?

9 A. True.

10 Q. Every property that is listed on this Plaintiff's Exhibit 33 is a house that you own and lease to Four J's, with the exception of this house here, 6519 Anthonia Lane in Richmond, Texas. That's your personal residence, isn't it?

15 A. There are some houses that we lease from other people, not just this one.

17 Q. This address here, 6519 Anthonia Lane.

18 A. That's my residence.

19 Q. That's your personal residence, that's where you live?

21 A. Yes.

22 Q. That's out in Richmond, right?

23 A. Yes.

24 Q. Does that house have ten bedrooms and seven and a half bathrooms?

000965

1 MR. PLUMMER: Excuse me. Objection, relevance. May we approach?

3 THE COURT: Overruled.

4 MR. PLUMMER: Judge, may we be heard on this?

6 THE COURT: Come on up.

7 (Bench discussion.)

8 MR. PLUMMER: What does how many bedrooms she has in her personal house have to do with the issues in this lawsuit, Judge? It's not relevant.

11 It's just designed to prejudice this lady before this jury. It's outrageous. It's ridiculous.

13 THE COURT: Your response, Mr. Thweatt?

14 MR. THWEATT: Everything that I do at trial is not designed to prejudice the Defendants.

16 The question is whether it's substantially -- whether any prejudice is substantially outweighed by the probative effect. She has testified has never calculated her net worth. She doesn't know. The jury may have questions about what her net worth is. This is one of the ways that we can establish that with the size of her personal residence and any other assets that she may maintain.

24 THE COURT: Mr. Sparks, you have anything to add?

000966

1 MR. SPARKS: I think it is actually relevant, and it goes to net worth when she says she doesn't know.

4 THE COURT: I think it's relevant.

5 We're getting closer to where we are starting to get to where the probative value is out weighed. We're not quite there yet. So let's tighten this up and either bring it home or move on.

9 MR. THWEATT: Yes, Your Honor.

10 MR. SPARKS: Thank you, Your Honor.

11 (Open court.)

12 MR. THWEATT: Your Honor, may we have the question read?

14 THE COURT: Repeat your question.

15 Q. (By Mr. Thweatt) Ms. Uduma, the house that you own at 6519 Anthonia Lane in Richmond, Texas, has ten bedrooms seven and a half bathrooms, doesn't it?

18 A. Yes.

19 Q. And it's over 10,000 square feet, right?

20 A. Yes.

21 Q. You are the one hundred percent owner of Four J's Community Living Center, true?

23 A. True.

24 Q. You are the sole shareholder of that company?

000967

1 A. Yes.

2 Q. You are the only corporate officer, right?

3 A. Yes.

4 Q. There have never been any other corporate officers of Four J's other than you, correct?

6 A. Correct.

7 Q. You are now the president and CEO, just like you always have been, right?

9 A. Yes.

10 Q. You control that company, don't you?

11 A. Yes.

12 Q. You are also the one hundred percent owner of the property located at 1635 Beretta Court, true?

14 A. True.

15 Q. There are no other owners, other than you, for that Beretta Court property, right?

17 A. Yes.

18 Q. There have never been any other owners in the past, other than you, of that property, correct?

20 A. It was bought from someone who used to own it.

22 Q. While you owned it. Nobody owned it jointly with you.

24 A. No. 25 Q. Has the property been rebuilt since the fire

000968

1 on September 4, 2008?

2 A. There was modifications made to accommodate Jenny's need.

4 Q. No. That's not my question. Let me ask it again.

6 Has the property, Beretta Court, been rebuilt since the fire in September 2008?

8 A. No. No. 9 Q. If it were to be rebuilt, you would be the person to make that decision, true?

11 A. Yes.

12 Q. You pay the property taxes that are due and owing on that property, correct?

14 A. Yes.

15 Q. You and you alone are the person that took out the loan to finance the purchase of that Beretta Court house, right?

18 A. Yes.

19 Q. You lease that Beretta Court house to your company -- 21 A. Yes.

22 Q. -- Four J's Community Living Center, right?

23 A. Yes.

24 Q. If you wanted to enforce that lease as a tenant, on behalf of your company, your company would

000969

1 have to sue you to enforce the lease, right?

2 A. Could you repeat the question.

3 Q. If you wanted to enforce the lease that exists between you personally and your company as a tenant, all right, let's say Four J's Community Living Center, as a tenant, wants to enforce the lease between you and the company. Are you with me?

8 A. Okay.

9 Q. In order to enforce that lease, your company would have to sue you personally to do that, wouldn't it.

12 A. Maybe.

13 Q. Well, who else would they sue?

14 A. Yeah, they would sue me. 15 Q. And as president of that company, you would be the only person with authority to even authorize a lawsuit against yourself; isn't that right?

18 A. Yes.

19 Q. And, likewise, if you wanted to enforce that lease as the owner of the company -- I'm sorry, as the owner of the house and as -- 22 MR. PLUMMER: Excuse me, Your Honor -- 23 THE COURT: Let him finish his question.

24 Q. (By Mr. Thweatt) And, likewise, if you wanted to enforce that lease as the landlord, as the

000970

1 owner of the house, you would have to sue your company, wouldn't you?

3 MR. PLUMMER: Judge, objection.

4 Relevance and repetition.

5 THE COURT: Sustained.

6 Q. (By Mr. Thweatt) What's really happened here, Ms. Uduma, with regard to the property at Beretta Court, is that you own it and you control it, right?

10 A. I own it and I lease it out.

11 Q. And you control it, don't you?

12 A. Well, once I lease it out, so I did not control it anymore.

14 Q. Well, you control access to the Beretta Court property, don't you?

16 A. No, I did not.

17 Q. A company called OMNI Fire & Security Systems, we have talked about, installed the fire alarm system in that house, didn't they?

20 A. Yes.

21 Q. And they would inspect that property at least annually, true?

23 A. Yes.

24 Q. When there was something major with the alarm system or repairs, anything like that, OMNI

000971

1 would call you rather than someone else at Four J's, wouldn't they?

3 A. Yes. They are supposed to.

4 Q. Before inspection of your property at Beretta Court, OMNI would call you and request to have you send a supervisor over there to let them in, right?

8 A. Yes.

9 Q. And OMNI inspects and handles all the fire alarm services for all of your more than thirty properties in the Houston area, don't they?

12 A. No. 13 Q. If Mr. Overholt testifies differently than that, is he going to be telling the truth?

15 A. No. We have -- out of the properties we have in Houston, it's not all of them that are four bedrooms that need four clients. And according to the Department of Aging and Disability rules and regulations, if you don't have four people in the house, you don't have to have a smoke alarm. So I only have about -- 22 Q. You visited the Beretta Court property -- 23 MR. PLUMMER: Excuse me, Your Honor.

24 The witness hadn't finished answering the question.

25 THE COURT: Ask your next question.

000972

1 Q. (By Mr. Thweatt) Ms. Uduma, you visited the Beretta Court property that you owned on many occasions, correct?

4 A. Yes.

5 Q. Based on upon everything you have talked about, you would agree that you control that property as the premises owner, don't you?

8 A. It was leased to Four J's, so Four J's controlled the -- 10 Q. That's not my question.

11 My question is: Do you agree that you, as the property owner, control that premises?

13 A. No, I don't.

14 Q. And the reason you don't is because you think that Four J's, the company that you own one hundred percent of, was the premises occupier; is that right?

18 A. The Four J's that I own lease the property to the clients that lived in there.

20 Q. You agree that Four J's is responsible for the actions of its employees while they are at work?

22 A. No. 23 Q. You don't agree that as the president of the company, the company that you own, should be held responsible for the actions or inactions of its

000973

1 employees?

2 A. Could you repeat the question.

3 Q. You don't agree, Ms. Uduma, as the president of the company that you are the one hundred percent owner of, that your employees at Four J's, if they do something wrong that your company cannot be held responsible for that?

8 A. In some instance.

9 Q. But just not this one?

10 A. No. 11 Q. Even though a person died? What could be more serious than that?

13 A. The reason I say that, because the Four J's as a company did everything that needed to be done in bringing outside help, training employees. The reason I am saying that Four J's is not responsible for it is because the staff panicked. So there is really no way you can determine what will happen in case of emergency. If the staff panicked, I don't think there is any way we could have prevented that.

21 Q. You know that one of the reasons you train employees is to prevent them from panicking in an emergency situation, you know that, don't you?

24 A. We train employees to -- 25 Q. Ms. Uduma, I'm just asking whether or not

000974

1 you know that the reason that you train employees is to prevent them from panicking in an emergency.

3 Right?

4 A. That's correct.

5 Q. And so if your former employees take the stand in this case and they tell this jury that they weren't properly trained as to how to respond in the event of an emergency, I suppose you think that they will be lying to this jury. Is that right?

10 A. Yes. That's right.

11 Q. Ms. Uduma, do you agree that safety should never be sacrificed because of money?

13 A. Yes.

14 Q. If you had spent more money on this house, with overhead sprinklers and a fire alarm system that could have notified automatically to the fire department, the house would have been safer, wouldn't it have?

19 A. If the fire -- if the OMNI fire alarm system that I contracted had made a proposal that you need a sprinkler in this house or if the Department of Aging and Disability, when I sent all the documents of the people that's going to live in that house has told me, yes, this house will need a sprinkler system, I would have put it. But it's no way -- I'm not a fire

000975

1 person. There is no way I would have known what is -- what -- that the alarm system needed to be monitored or not monitored. That's why I contracted OMNI Fire Alarm to do all that and give me all the recommendations.

6 Q. Ms. Uduma -- 7 MR. THWEATT: May we have the last question read back, Your Honor?

9 THE COURT: No. Just ask another question.

11 Q. (By Mr. Thweatt) If you had put overhead sprinklers in that house, Ms. Uduma, and you had put a fire alarm system in that house that would have automatically notified the fire department, wouldn't you agree that that house would have been much safer on September 4, 2008 when that fire started?

17 A. Sir, sir -- 18 Q. It's a yes or no question. You can either agree or disagree.

20 A. I don't know. I don't know, let me put it that way.

22 Q. You don't know?

23 A. No. 24 MR. THWEATT: I have no further questions, Your Honor.

000976

1 THE COURT: Mr. Sparks?

2 MR. SPARKS: Just a few, Your Honor.

3 CROSS-EXAMINATION BY MR. SPARKS: 5 Q. Ms. Uduma, how are you doing?

6 Isn't it true that you visited that home on many occasions, the Beretta Court property?

8 A. Yes. During the annual fire marshal inspection, I did.

10 Q. You are the one that gave access to the fire marshals, are you not?

12 A. No, I am not. The supervisor usually open the house. For me, I normally don't have keys to the house.

15 Q. So you didn't testify earlier that you took the fire marshal to the house and that keys allegedly to the back door were in a drawer?

18 A. The front door is what I am referring to.

19 The supervisor opens the front door. I usually will go in with the fire marshal. They will do inspection on the fire system and everything, and then I will open the drawer and open the back door.

23 Q. So you are aware, then, that that deadbolt lock was on that back door?

25 A. Yes.

000977

1 Q. And, in fact, you even unlocked that door with a key at one point in time, did you not?

3 A. Yes, I did.

4 Q. Now, out of all the properties that you have, did you not previously testify that this is the only property, allegedly, that had a deadbolt lock on it like this?

8 A. To my knowledge, yes.

9 Q. And isn't it the reason why that property was the only one that had it on there was to prevent Esperanza Arzola from eloping and leaving the property when she wanted to?

13 A. Well, I don't really know, because that would not be under my duties -- under my job.

15 Q. That wouldn't be under your job description?

16 A. The case managers and the supervisors may have been the one that started and determined that.

18 I don't know if it was because of Esperanza. I don't remember.

20 Q. So you don't know why it was on there, but you were aware that it was on there?

22 A. Yes.

23 Q. And having opened the door on one, at least, occasion, if not more, then you never took any actions to remove it, did you?

000978

1 A. No. Because I knew there was a key right there. Each staff had a pair of keys, the front door and the book door. Plus that one in the drawer in case they didn't have it. That's what the supervisors told me, and that's what the employees told me. 7 Q. Did you ever personally give them keys?

8 A. No, I don't handle that.

9 Q. You don't handle that?

10 A. No. 11 Q. So you don't personally know if what they told you is accurate, do you?

13 A. I know they have to have a key in order for them to get in because these clients that they have during the daytime. So each staff have to have a key to get into the house.

17 Q. I don't mean the front door. I'm talking about the back door.

19 A. They have two keys. So which one of the employees showed me when they have the fire that she still has her own.

22 Q. So you were certainly aware that that back door had a deadbolt lock on it, and you never did anything to remove it; is that correct?

25 A. Yes.

000979

1 MR. SPARKS: Pass the witness, Your Honor.

3 THE COURT: Mr. Plummer.

4 MR. PLUMMER: Judge, we will reserve our examination until our case in chief.

6 THE COURT: You may step down.

7 (The witness was excused from the witness 8 stand.)

9 THE COURT: Mr. Thweatt, call your next witness.

11 MR. THWEATT: Your Honor, we will call Chiaka Irondi.

13 THE COURT: Spell that for our court reporter, please.

15 MR. SPARKS: We have already, previously, given her the spelling of that name.

17 BAILIFF: Stand here. Face the Judge.

18 Raise your right hand.

19 (Witness placed under oath.)

20 THE COURT: Have a seat, please.

21 You may proceed.

000980

1 CHIAKA IRONDI, having been placed under oath, testified as follows: 3 DIRECT EXAMINATION BY MR. SPARKS: 5 Q. Good morning, Ms. Irondi. How are you today?

7 A. I'm fine.

8 Q. Please state your name for the record.

9 A. My name is Chiaka Irondi.

10 Q. Ms. Irondi, you reside in Fresno, Texas; is that correct?

12 A. Yes, I do.

13 Q. And are you a former employee of Four J's Community Living Center, Inc.?

15 A. Yes, I am.

16 Q. When did you start living -- working there, do you recall?

18 A. I think around, I tried to decide. It should be 2009 or 2008. I can't remember the actual date.

21 Q. Can you speak a little louder? I'm having a little problem hearing you.

23 A. Around 2009.

24 Q. Around 2009?

25 A. Yeah.

000981

1 Q. So this fire took place in 2008.

2 A. So I left before the fire, so it should be 2008.

4 Q. 2008?

5 A. Yeah.

6 Q. Okay. And you started working there approximately 2006; is that correct?

8 A. Yes, 2006.

9 Q. Are you familiar with Tanya James?

10 A. Yes, I am.

11 Q. And what was your relationship with Tanya James?

13 A. Well, I'm her caregiver when I was working there. I used to be her caregiver, I take care of her.

16 Q. What kind of person was she?

17 A. She was a quiet, gentle lady.

18 Q. What about Jenny Wagner?

19 A. Jenny Wagner, I was her caregiver when I was there. She can't walk. She is in a wheelchair, so we assist her in everything.

22 Q. What about Esperanza Arzola?

23 A. Yeah. Esperanza is the only one that is aggressive among all the clients we have.

25 Q. When you say aggressive, what do you mean?

000982

1 A. She can fight with stuff. She run away sometime. She easily gets annoyed, aggravated.

3 Q. Were you ever provided keys to the property at the Beretta Court -- 5 MR. PLUMMER: Objection, Your Honor.

6 Time period, relevance of the time period.

7 THE COURT: Rephrase your question.

8 Q. (By Mr. Sparks) When you were working there, were you ever given keys to the property, Beretta Court?

11 A. Yes. When I started working, I was given a front door key and a back door key. But later, the back door key was misplaced, couldn't find it before I left. Then when I left, I don't know if they ever found it or not.

16 Q. Did you ever make requests of anyone to have that key replaced?

18 A. Yeah. It was reported.

19 MR. PLUMMER: Excuse me, Your Honor.

20 May I take this witness on voir dire?

21 THE COURT: No. 22 MR. PLUMMER: Is that a yes?

23 THE COURT: No. Do you have an objection?

25 MR. PLUMMER: Yes. I'm trying to pin

000983

1 down the time period she is testifying to. She wasn't there during the time of the fire and she didn't work there -- 4 THE COURT: I asked if you had an objection.

6 MR. PLUMMER: The objection is relevance of her answer -- the question and her answer because it isn't limited to a specific with time period.

9 THE COURT: Rephrase your question.

10 Focus it up.

11 Q. (By Mr. Sparks) Prior to you leaving, you were aware that the back door key had been lost; is that right?

14 A. It was lost.

15 Q. By the key being lost, you guys didn't have access to open or close that door; is that correct?

17 A. Before I left.

18 MR. PLUMMER: Objection, Judge. Again, I don't know what time period she is talking about.

20 Se was given a key, and I don't know what time period she is talking about in response to these questions.

22 THE COURT: Approach the bench.

23 (Bench discussion.)

24 THE COURT: Mr. Plummer, no more speaking objections. Do you understand me?

000984

1 MR. PLUMMER: Yes, sir.

2 THE COURT: All right. I may have missed it. Have you gotten her to talk about all of the time period when she was working there?

5 MR. SPARKS: No, I haven't. But I can develop it, Judge.

7 THE COURT: Let's get that taken care of.

9 MR. SPARKS: Yes.

10 (Open court.)

11 Q. (By Mr. Sparks) Ms. Irondi, were you employed -- did you start your employment in June of 2006 with Four J's?

14 A. Yes, it is.

15 Q. Did you leave in February of 2008?

16 A. Yes. I left around that time, yeah.

17 Q. All right. Prior to you leaving in February of 2008 -- 19 A. Uh-huh.

20 Q. -- the back door key was lost. Is that your testimony?

22 A. That's what I said.

23 Q. Okay. And had you made requests of anyone to have that key replaced before you left?

25 A. Before I left, I know it was reported to one

000985

1 of the supervisors that the key is not available.

2 Q. Okay. Do you know how long it had been between the key being lost while you were there, prior to you leaving in February of 2008?

5 A. I can't recall.

6 Q. Would it have been weeks?

7 A. No, it's more than weeks.

8 Q. Months?

9 A. I think months.

10 Q. And without that key, the back door was inoperable; is that correct?

12 A. You can't open it without a key.

13 Q. Tell us about the garage door. Was that ever a problem?

15 A. Yeah. The garage door had a problem.

16 Q. What kind?

17 A. Like if you open it, somebody have to hold it for you to pass through. If not, it can (indicating), it can fall on you, you know.

20 Q. So the three entrance and exit doors of the property was the front door -- 22 A. Yes. That was the only door we were using when I was there.

24 Q. And that was up until the period of time of February 2008.

000986

1 A. Yeah, when I left.

2 Q. Because the back door key had been lost, correct?

4 A. Yeah.

5 Q. And the garage door, you couldn't go out of it without holding it up because it would fall on you?

8 A. Yes.

9 Q. So if there was a situation of an emergency, where you or any other individual caregiver had to move Jenny Wagner, Tanya James, Esperanza Arzola or Elisha Campbell out of the property, you certainly wouldn't have gone out the garage door. Is that what you're saying?

15 A. No. We would use the front door because we can't use the garage door. It's not safe to use the garage door.

18 Q. Not safe to use the garage door?

19 A. Yes.

20 Q. And it certainly wasn't operable to use the back door while you were there; is that correct?

22 A. We can't because we don't have a key.

23 MR. SPARKS: Pass the witness, Judge.

24 MR. TERRY: Did you -- 25 THE COURT: Hold on.

000987

1 MR. TERRY: I'm sorry, Your Honor.

2 THE COURT: Mr. Thweatt?

3 Mr. Terry?

4 CROSS-EXAMINATION BY MR. TERRY: 6 Q. Ma'am, did you receive any safety training while working at Four J's?

8 A. What kind of safety training?

9 Q. For example, fire drills, fire evacuation.

10 A. I never.

11 Q. You never received that type of training at Four J's?

13 A. I was not given the training, but there was a paper they give for you to sign. But the training was not given.

16 Q. Okay. So I guess what you are saying is the people at Four J's presented you with a paper to sign -- 19 A. Yes.

20 Q. -- to indicate that you had gone through training -- 22 A. Yes.

23 Q. -- but you never actually went to training?

24 A. I never went through.

25 Q. While working at Four J's, did you ever feel

000988

1 overwhelmed?

2 MR. PLUMMER: Judge, objection, leading.

3 THE COURT: Sustained.

4 Q. (By Mr. Terry) Ma'am, did you ever feel like you needed any help, additional help?

6 A. Sure, sure, I did.

7 Q. Okay. Why is that?

8 A. Because we have four clients. One in the wheelchair. And what's the -- Tanya, you have to assist Tanya too. So we feel that we need two staffs to do the work.

12 Q. Did you ever request to have additional staff?

14 A. Well, I didn't.

15 Q. Why is that?

16 A. I don't actually have -- I see that's the way they do it. All houses, that's the way it is.

18 Q. You basically do what you are told to do?

19 A. Yeah. Basically, yeah.

20 Q. During your experience with Ms. Esperanza Arzola, was she capable of hurting people?

22 A. I think so, because I know she fought with one of the, one of the staff sometime, pulled her hair.

25 Q. Did you feel safe with her in the house?

000989

1 A. No. 2 Q. You did not?

3 A. Not really.

4 MR. TERRY: Pass the witness, Your Honor.

6 THE COURT: Mr. Plummer?

7 CROSS-EXAMINATION BY MR. PLUMMER: 9 Q. Ms. Irondi, you left in February of 2008?

10 A. Yes.

11 Q. Between February of 2008 and September of 2008, did you go back to the Beretta Court house?

13 A. No. No. After I left, I never went back there.

15 Q. Okay. And is it fair to say that you left on sour terms?

17 A. I don't understand.

18 Q. Well, could you get another job at another -- 20 A. I already do two jobs, so I already have a job. I work at Four J's and another place. So I left Four J's and concentrated on the other. Because I don't want two jobs again. I stopped two jobs.

24 That's why I left Four J's.

25 Q. Were these two jobs as a caregiver?

000990

1 A. Yeah. Always caregiver.

2 Q. Now when did you lose your key, your back door key?

4 A. I don't know exactly. I cannot tell you the dates or the month. I can't remember.

6 Q. Okay. Was it right after it was given to you?

8 A. No. 9 Q. Was it in January of 2008?

10 A. That's what I say, I can't tell you the month, the date. But I knew it was lost, it was misplaced.

13 Q. Okay. And you told somebody you misplaced your back door key and asked for another one; is that right?

16 A. Yeah. I'm not the only staff. The other staffs did too, that we don't have the back door key.

18 Q. So when you were given your front door and back door key, everybody else -- 20 A. No. We just have one key for the back door.

21 So we keep it in the house. We don't go out with it.

22 We go out with the front door key.

23 Q. I'm sorry. I understood you to say that you were given a front door and a back door key.

25 A. No, no.

000991

1 Q. Were you -- was there just one front door key?

3 A. One back door key. But every staff had the front door key.

5 Q. Now, is it -- did Ms. Ogbonna ever give you keys to the house?

7 A. Who?

8 Q. Inya Ogbonna.

9 A. That's the front door key, that was what he gave me. 11 Q. That was the only key she gave you?

12 A. Yes. He.

13 Q. He. Okay.

14 Arzola, Ms. Arzola, I believe you said, had pulled somebody's hair at one point in time, right?

17 A. (Indicating.)

18 Q. And you had training, some training to teach you how to deal with people that had aggression like Arzola; is that right?

21 A. No. 22 Q. You never talked to the psychologist, Dr. Lockwood?

24 A. Okay. Once in a while.

25 Q. You remember that now?

000992

1 A. The psychologist.

2 Q. The psychologist.

3 A. The psychologist that come for the staff meeting, like a staff meeting.

5 Q. Okay. So he did teach you -- 6 A. Sometimes he come and he discuss maybe one client in the house that is giving problems.

8 Everybody don't attend. It's not compulsory.

9 Q. All right. It wasn't compulsory, you said.

10 But you were a caregiver. Arzola was one of your wards in the house, is that correct, one of the clients in the house?

13 A. Uh-huh.

14 Q. Is that a yes?

15 A. That's a yes.

16 Q. And Dr. Lockwood's job, the psychologist -- 17 A. Not specifically on her.

18 THE COURT: I need you to wait till he finishes his question.

20 THE WITNESS: Okay.

21 THE COURT: And we will wait until you finish your answer.

23 Q. (By Mr. Plummer) Long and short, Dr. Lockwood's responsibility was to help the staff understand how to deal with the patient's

000993

1 psychological problems; is that right?

2 A. Yes.

3 Q. And he taught you all, including you, how to deal with Arzola; is that right?

5 A. Not specifically her, not just Arzola.

6 This is Esperanza, right, is that who we are talking about?

8 Q. Okay. Yes, Esperanza.

9 A. Okay. You are saying Arzola. Not specifically on her. It might be on any client from any house.

12 Q. All right. But, clearly, she was included in that group; is that correct?

14 A. Yeah, because she is included in the clients that I could see.

16 Q. Okay. You did attend a fire drill; is that right? Several fire drills. Is that correct?

18 A. No. 19 Q. Never?

20 A. Never.

21 Q. And I'm talking about the Beretta Court house.

23 A. No. 24 Q. All right. Let me show you what's been marked as Exhibit 15.

000994

1 MR. THWEATT: Defendants' Exhibit 15?

2 MR. PLUMMER: Yes, Defendants' Exhibit 15.

4 MR. THWEATT: Thank you.

5 Q. (By Mr. Plummer) Do you see your signature on that document?

7 A. Like I say, we were given this to sign. But we were not physically -- nobody came to do it for us.

10 Q. Well, let me -- let's understand a couple things. One, Jenny Wagner had a Personal Emergency Plan in her binder at Beretta Court, right?

13 A. She did.

14 Q. She did?

15 A. Uh-huh.

16 Q. And that binder told you what you needed to do in the event of an emergency; is that correct?

18 A. The binder told me what? Come again.

19 Q. The binder explained to you what you needed to do in the event of an emergency for Jenny Wagner, right? You don't remember that?

22 A. I don't remember.

23 Q. Well, well, how about Tanya James. She had a Personal Emergency Plan in her binder, right?

25 A. I think each one of them should have that.

000995

1 Q. Okay. And it told you what to do in the event of an emergency; is that correct?

3 Are you saying you never read those?

4 A. I did.

5 Q. Oh, so you do know what to do in the event of an emergency.

7 A. I'm checking this handwriting, if it is mine. That's not my handwriting.

9 Q. That is your signature on that fire drill report, right?

11 A. It doesn't look like my signature.

12 Q. And it's -- that's not your signature at all?

14 A. Huh-uh.

15 Q. Okay. So you never had attended or had any fire drills, right?

17 A. That's what I said. But I was given a paper to sign.

19 Q. Okay.

20 A. For fire drill.

21 Q. But that's not your signature right there?

22 A. That's what I am looking at. That's not how I sign.

24 Q. Well, you remember you gave deposition testimony --

000996

1 A. I did what?

2 Q. You remember you gave sworn deposition testimony in this case, right?

4 A. I did. But I saw that paper. Maybe it's because it's on this screen.

6 Q. And you remember you were asked about that item, that particular exhibit there and your signature there?

9 A. Uh-huh.

10 Q. You remember that?

11 A. Uh-huh.

12 Q. Is that a yes?

13 A. I remember.

14 Q. And you said that that was your signature.

15 Is that correct?

16 A. Yes. But remember I said I was given such a paper to sign but I did not get the training. I said that.

19 Q. Well, there are two issues that we are dealing with. One, is that your signature or is that not your signature?

22 A. Can I see the copy, because this screen -- 23 Q. The copy is in evidence. This is a blowup of the original.

25 A. Can I see the paper? Because I'm not clear

000997

1 with this.

2 Q. Let me show you what's been marked as Exhibit 15.

4 A. Uh-huh.

5 (Referenced document tendered to the 6 witness.)

7 Q. (By Mr. Plummer) Is that your signature?

8 A. Okay. No. Can I sign for you, you see how I sign?

10 Q. Sure, but -- 11 A. This is not my handwriting.

12 Q. You remember you were asked about that document in your deposition -- 14 A. This is what you show me. 15 THE COURT: Ma'am, you need to wait till he finishes his question. You need to wait till I finish talking before you respond. I understand you are nervous, but it makes life very difficult for our court reporter when you talk over each other.

20 THE WITNESS: Okay.

21 Q. (By Mr. Plummer) Remember when you gave your deposition in February of 2011, and on page 51 down here, you were asked -- 24 THE COURT: Step down Mr. Plummer.

25 MR. PLUMMER: I'm sorry, Your Honor.

000998

1 Q. (By Mr. Plummer) Let me direct your attention to page 51. The question down here is asked, "Is that your signature on page 4?" 4 A. And I said, "Yes." 5 Q. And you said, "Yes." 6 A. Yes.

7 Q. Okay. Thank you, ma'am.

8 Never attended any fire drills, never attended any in-services where they talked about fire safety and how to evacuate clients and consumers of the home, never visited with the fire marshal and had any instructions from him. Right?

13 A. Never fire marshal.

14 Q. Never had any instructions from the fire marshal or from staff or other folks about how to evacuate the clients. Is that right? That what you are telling this jury?

18 A. I never had a training. That's what I am telling the jury.

20 Q. Never had a training but -- 21 A. I was given the paper to sign that the training was given.

23 Q. Okay. Never had a training session, never had an in-service session where you were trained, right? You, in a group, were trained, right?

000999

1 A. The in-service -- Lockwood? I don't remember the name of the psychologist that come to give us lecture once a month -- I do attend that in-service sometimes.

5 Q. Okay. So you only attended Lockwood's in-service sessions, never attended any in-service sessions where they talked about safety issues and evacuations, anything like that, right?

9 A. I don't recall that.

10 Q. And you never read the clients' and consumers' care plans in the home on how to evacuate?

12 A. I did.

13 Q. You did do that?

14 A. Yes.

15 MR. PLUMMER: Pass this witness, Judge.

16 THE COURT: Mr. Sparks.

17 MR. SPARKS: Judge, no further questions.

19 THE COURT: Mr. Thweatt. Excuse me. Mr. Terry.

21 MR. TERRY: That's fine. Briefly, Judge.

23 RECROSS-EXAMINATION BY MR. TERRY: 25 Q. Ma'am, how much did you make per hour while

001000

1 working for Four J's?

2 A. I think it was 7.25.

3 Q. 7.25?

4 A. Yes.

5 MR. TERRY: No further questions, Your Honor.

7 THE COURT: Mr. Plummer?

8 MR. PLUMMER: Yes, Your Honor, just a second.

10 Nothing further, Your Honor.

11 THE COURT: All right. Thank you, ma'am. You are excused. Appreciate your time.

13 THE WITNESS: Okay.

14 (The witness was excused from the witness 15 stand.)

16 THE COURT: Call your next witness, please.

18 MR. THWEATT: Your Honor, may we approach very briefly?

20 THE COURT: Yes.

21 (Bench discussion.)

22 MR. TERRY: We have a witness that -- Rick Overholt, that we are going to read the depo in.

24 We think we can get it in before lunch. We just have one issue on what you sustained by way of the

001001

1 objection on subsequent remedial measures. Our notes weren't clear last night. So if we can just clear that up briefly, we can read it.

4 MR. THWEATT: Starting on page 43.

5 THE COURT: 43, lines 10 through 16, I sustained the objection.

7 Now, how are we going to do the designations on page 28 and on page 31, which I am allowing in only to show notice? Have y'all discussed that with opposing counsel on how we are going to handle those?

12 MR. THWEATT: The objections you sustained in part and overruled in part?

14 THE COURT: Yes.

15 MR. THWEATT: We have not discussed that.

17 THE COURT: All right. Do the other parts and then let me know when you are about to do page 28 and page 31 so that I can give the jury their instruction prior to that testimony. But do all the rest of the deposition and leave that for the end, and let me know when you are at that point that I should give the instruction.

24 MR. THWEATT: All right. We will do all of that, and then we will stop and tell you. Okay.

001002

1 THE COURT: Are y'all going to have any counters on this?

3 MR. PLUMMER: No, Your Honor.

4 THE COURT: All right. Have a seat.

5 You may proceed.

6 (Open court.)

7 MR. THWEATT: Your Honor, we call Rick Overholt by deposition.

9 THE COURT: All right. Are y'all reading this?

11 MR. THWEATT: We are.

12 THE COURT: Ladies and gentlemen, the next witness is being called by deposition. A deposition is a proceeding that occurs before trial where lawyers have an opportunity to ask a witness questions and cross-examine the same witness. The witness is given the same oath that witnesses take here in court. They have the same responsibilities for telling the truth, and they are under the same consequences for not telling the truth.

21 Obviously, this is not Mr. Overholt.

22 This is Mr. Terry. He is going to be reading the answers Mr. Overholt gave in the deposition.

24 You may proceed.

001003

1 RICK OVERHOLT, called by deposition, having been duly sworn, testified as follows: 4 PLAINTIFF'S DIRECT EXAMINATION OFFER BY MR. THWEATT 6 Q. Would you tell us your name, please, sir.

7 A. Rick Overholt.

8 Q. Okay. Let me ask it this way. Did Ms. Smith, in her capacity as the lawyer for the defense in this case, ask you to prepare a written opinion of your -- a written report of your opinions in this case?

13 A. No. 14 Q. Have you ever testified as an expert witness in a civil litigation matter?

16 A. No, I haven't.

17 Q. Have you ever testified as an expert witness in a criminal litigation matter?

19 A. No. 20 Q. Okay. Today then would be the first time you've ever testified as an expert.

22 A. Yes, it would be.

23 Q. What do you do for a living, sir?

24 A. I'm in the alarm business, fire alarms, security alarms.

001004

1 Q. And who do you work for?

2 A. OMNI Fire & Security.

3 Q. How long have you had that job?

4 A. Twenty-three years.

5 Q. And what is your job title there?

6 A. General manager.

7 Q. OMNI Fire & Security Systems, L.P., is that the current name of the company?

9 A. Yes.

10 Q. How many employees does OMNI have?

11 A. Fifteen.

12 Q. And it's located where? 13 A. 9811 North Freeway, Suite A101, Houston, Texas.

15 Q. And just briefly tell us what OMNI is in the business of.

17 A. We install and monitor and service fire alarms, security systems, cameras, access controls.

19 Q. Okay. And as I understand it, OMNI Fire & Security Systems installed a fire alarm system in the residence located at 16355 Beretta Court in Houston, Texas.

23 A. Correct.

24 Q. Did you have any personal involvement in the installation of that system?

001005

1 A. In fact, I did the certification the day that the fire marshal inspected it when it was put into commission.

4 Q. And according to Deposition Exhibit No. 2, the installation certificate would have been completed on -- looks like November the 19th, 2001; is that right?

8 A. Yes.

9 Q. Just generally, for the ladies and gentlemen of the jury, tell us what you put into that home.

11 A. Basically a smoke detector in every room; pull station at the front and back door; two horn/strobes, one near the front door, one near the back door. And I believe -- I would have to refer back to the drawing. I believe there's also two or three strobes -- if you don't mind me looking while I answer that question.

18 Q. Certainly.

19 A. Strobe lights -- yes, two strobe lights in the bathrooms; heat detector in the kitchen; heat detector in the garage; a bell on the outside of the house.

23 Q. Do you know who asked you to install this fire alarm system?

25 A. The client dealt directly with my employee,

001006

1 David Knapp. So he's the one who originally arranged installation with the Four J's owners.

3 Q. Okay. In this deposition room here today is a lady named Anthonia Uduma. Have you ever seen her before?

6 A. Yes, I have.

7 Q. And when did you first see her?

8 A. I believe the first time we met was when I was going out to do an inspection on one of the homes.

11 Q. What did you understand her relationship to be with the Beretta Court home?

13 A. Well, I understand her to be the principal owner of Four J's.

15 Q. Okay. Did she ever tell you that she was, in fact, the owner of the actual house?

17 A. I assumed about that. But she never told me those words, no. 19 Q. Okay. What is it about your on interaction with her that led you to that assumption?

21 A. Well, typically we do a lot of business with that vertical market, with residential care homes.

23 And typically the owner of the company, they typically own the properties as well. They buy it and set it up.

001007

1 Q. Is OMNI Fire & Security, are they in the business of installing overhead sprinkler systems?

3 A. No. 4 Q. Are you familiar with companies here in the Houston area who do such things?

6 A. We work closely with those companies.

7 Q. And that's because those fire sprinkler systems have to work in conjunction with the fire alarm system; is that right?

10 A. We -- we monitor those systems. The water flow and the valves and those sort of things are monitored by our equipment.

13 Q. Okay. But you would also agree with me that in a situation where you have people who might be in that facility who are completely helpless in the event of a fire that an overhead sprinkler system can be very effective in addressing the outbreak of a fire?

19 A. Yeah, a sprinkler can be effective. Yes.

20 Q. Just like a smoke alarm or a pull alarm can be as well?

22 A. Yes.

23 Q. The -- and how many -- let me ask you this.

24 Can you tell me something about your educational background?

001008

1 A. Associate's degree. I'm licensed as a fire technician, which was training. I have a NICET Level II in fire alarms, which is a national organization that certifies us for what we do.

5 Q. Okay. Have you ever published any articles, journals, or treatises on fire prevention systems?

7 A. No. 8 Q. Okay. Do you hold any certificates or training beyond your associate's degree related to fire alarm systems?

11 A. A NICET Level II -- I'm NICET Level II certified for fire alarms.

13 Q. And what does that mean?

14 A. Well, NICET is the national governing agency that governs fire alarm technicians and installers and even designers and planners.

17 So, a Level IV NICET person would be the guy that stamps the plan, like Tony Mitchell, this gentleman here. And a Level I would be a -- you know, an early technician and one level above an apprentice.

21 So it's just a different stage of -- 22 Q. And that abbreviation, can you tell us what it stands for?

24 A. I think it's National Institute of Engineering Certification Technologies. I'm not

001009

1 exactly sure honestly.

2 Q. Are you aware that you've been designated by the defense in this case to act as an expert?

4 A. Yes.

5 Q. Do you know what you've been asked, if -- well, let me ask you this: Have you been asked to render any expert opinions by the defense in this case?

9 A. Just regarding what we did, just -- just relating to the fire alarm installation is the only thing I've been asked about.

12 Q. Okay. So you've not been asked to provide any opinions on whether the system you installed was sufficient or whether it was insufficient or anything like that; is that right?

16 A. Yeah. I thought we would do that here. No, we haven't discussed that.

18 Q. Okay. When you installed the system at the Beretta Court residence -- I say you. OMNI.

20 A. Yeah.

21 Q. Was OMNI aware of the types of clients who would be residing in that home?

23 A. No. 24 Q. Okay. That's not part of the job that you do, is to come in and evaluate whether this system

001010

1 that you're installing is appropriate or not for the people who are going to be living there?

3 A. Well, it's -- we treat it as a personal care home. And, you know, that's a general classification. And it's actually the city that gives us the classification of the building.

7 Q. Okay.

8 A. And so we design the system to meet what the city said the purpose of the building was.

10 Q. I see. Okay. But you don't sit down with the customer and say, look, our understanding is that this home is going to be used for a personal care facility and because of that, have you considered A, B, and C options? Does anything like that happen in your conversations with the customer?

16 A. Typically in this case, no. It's a personal care home. And there's a standard that has to be met for personal care homes. We know what that standard is. And so we design it around that.

20 Q. And it's a minimum standard, right? You have to meet that standard and then you get the blessing from the city, correct?

23 A. Correct.

24 Q. Okay. There is certainly nothing preventing a customer who wants to employ your company from

001011

1 exceeding the minimum standards set by the city, right?

3 A. Certainly not.

4 Q. Okay. You've reviewed the report of the former Houston Fire Chief, Eddie Corral, in this case?

7 A. Yes.

8 Q. Was there anything had in that report that you disagreed with?

10 A. There was a lot in that report.

11 Q. Yes, sir. I'm asking whether or not -- 12 A. Yes.

13 Q. -- you disagreed with any portion of it.

14 A. There were areas in the report that were outside my scope of work, so ...

16 Q. Okay.

17 A. I don't feel like that my opinion -- my opinion would be personal and not professional on those items.

20 Q. I understand.

21 Have you ever acted as a fireman?

22 A. No. 23 Q. Have you ever acted as a fire marshal?

24 A. No. 25 Q. You told us you have an associate's degree.

001012

1 What was that associate's degree in?

2 A. Programming, computer programming.

3 Q. Okay. All right. Have you been to the Beretta Court residence after this fire?

5 A. I have not.

6 Q. Do you know when the fire took place?

7 A. I believe 2008.

8 Q. Okay. Do you know whether any of your employees at OMNI have been out to the site of the fire since -- since the fire took place?

11 A. Not to my knowledge.

12 Q. Let me show you some pictures that were taken by the Houston Fire Department of the residence after the fire.

15 A. Okay.

16 Q. And I'm going to refer you to page 70 of -- it's called the Houston Fire Department Incident Report number. And it's got the report number listed there.

20 There's two color photographs that appear on page 70 of that packet of photos. And I'd like to direct your attention to the top photograph there. And there's a red device on the wall there.

24 Is that what you refer to as a pull alarm?

25 A. A pull station is what we call that.

001013

1 Q. Okay. And how -- just generally how does it operate?

3 A. You pull down the handle and it sets off all the sounders and flashing lights to it and advises the occupants to evacuate.

6 Q. Okay. Now there's smoke detectors that were installed in the Beretta Court residence. If those smoke detectors are activated, does the same thing happen automatically -- 10 A. Yes.

11 Q. -- as the pull alarm might be pulled manually?

13 A. Yes.

14 Q. Okay. Can you tell us how quickly -- if smoke detectors detect smoke in the Beretta Court residence, how quickly would they have activated the strobes and the alarms?

18 A. Typically 30 seconds or less.

19 Q. And these alarms are extremely loud, aren't they?

21 A. Very loud.

22 Q. Can you give us an idea in terms of decibels? 24 A. 85.

25 Q. And without knowing anything about decibels,

001014

1 what -- 2 A. It hurts your ears.

3 Q. Okay.

4 A. It makes you want to get out of the building when you hear that.

6 Q. If you were sleeping, you would certainly hear it?

8 A. Absolutely.

9 Q. Okay. Now, there's -- it's a little bit better picture. I'm turning to page 69. There's an exit sign that you can see depicted on the door of -- or one of the doors of the residence. Is that sign something that would have been installed by OMNI?

14 A. No. We just do the electronics. We don't do the signage.

16 Q. Okay. There's another sign depicted on page 69.

18 A. That would be our sign.

19 Q. Okay. And that sign says what? Can you just read that for the record?

21 A. Yes. "Local alarm only. Call the fire department." 23 Q. Okay. Do you know how much it cost to install the fire alarm system there at the 16355 Beretta Court residence?

001015

1 A. Approximately 2,000.

2 Q. And do you do the other fire prevention systems for Four J's other than the Beretta Court residence?

5 A. Yes, we do several homes for them.

6 Q. Do you have any idea how many?

7 A. I would say ten.

8 THE WITNESS: Does that sound close?

9 A. A lot. I didn't -- I could have checked before I left, but I didn't.

11 Q. Let me hand you Exhibit No. 3.

12 Mr. Overholt, can you identify this document, please?

14 A. Yes. It's an inspection form that was filled out during an inspection by one of my technicians.

17 Q. And the tech appears to be Kristopher Overholt?

19 A. Correct.

20 Q. Is he related to you?

21 A. He's my son.

22 Q. How old was Kristopher Overholt, your son, on October the 4th, 2005?

24 A. He was 21.

25 Q. All right. Was he working for you-all full

001016

1 time at that point?

2 A. Part time. He was in college.

3 Q. Okay. And so when he goes out to inspect the system that was installed there back in 2001, we can see a number of things that he has to check here.

6 How long does it take for him to complete this kind of inspection?

8 A. Typically it's about an hour.

9 Q. And what does OMNI charge for that kind of inspection?

11 A. At the time this was done, it was 125. It's more than that now.

13 Q. Okay. Is all the handwriting that on this document the handwriting of your son?

15 A. Yes.

16 Q. And how long did he work for OMNI?

17 A. Approximately five years.

18 Q. And you're the person who trained him, I presume?

20 A. Yeah, somewhat and my technicians. He went through an apprenticeship program.

22 Q. Where does Kristopher live now?

23 A. He lives in Austin.

24 Q. Okay. In the course and scope of your job duties at OMNI, have you ever inspected a home that

001017

1 had a similar door such as that?

2 A. A door like that?

3 Q. Yeah.

4 A. Yes. Yes.

5 Q. And do you -- typically find a door like that with that type of lock system, do you note that on the inspection report as Kristopher did here?

8 A. Typically, no. Actually, inspecting the locks isn't part of our function. So the fact that he did that was just something that he just wanted to note outside of our regular scope of our inspection.

12 Q. Have you talked to him about why he put this note on this particular inspection report?

14 A. Yes.

15 Q. Now, once this report is prepared and completed and signed by the technician, who inspects the property? What is done with it?

18 A. A copy is provided to the owner along with the invoice.

20 Q. And at the bottom of this particular inspection report, it says: Owner/manager not present. Do you see that?

23 A. Yes.

24 Q. And it's got a little KO circled. Is that Kristopher's initials?

001018

1 A. Yes, it is.

2 Q. And then he's -- he's also written down here: No one available to sign. Do you see that?

4 A. Yes.

5 Q. There's -- there is a signature on it. Is that his signature?

7 A. Yes, that's his. And then underneath it would be where the owner's would go. So if no one's available, we just write that note that we did the inspection, but there was nobody there at the time.

11 Q. If no one was available to sign, do you know how it is that Kristopher would have been allowed access to the -- this ticket -- this inspection report, are you able to discern whether or not the fact that the Zone I was disconnected, is that -- was that what would have prompted OMNI to come out to the house?

18 A. No. We were there for an -- a semiannual inspection, I believe it says. So we came out just to -- this form would indicate we just were there to do the inspection.

22 Q. And then just -- you have -- or it looks like Kristopher happened to show up on one of the days when one of the zones was disabled?

25 A. Correct.

001019

1 Q. Does that mean it was -- the word disabled can mean a couple of things. It means somebody intentionally disabled it or it means it's just not functioning right. Do you know what the case would have been on this?

6 A. Well, the switch that we're talking about would have been manually moved to disable to stop the beeping.

9 Q. There's a door in this room here in this deposition. And if I open that door, it will just remain open. There's no self-closing mechanism on it. Is that what you're telling us?

13 MR. THWEATT: Page 34, line 3.

14 A. Correct.

15 Q. But in the Beretta Court residence, what OMNI had installed, if I'm understanding you right, is that there were self-closing mechanisms attached to each door in the house?

19 A. We didn't install it. Again, that was another observation that wasn't part of our scope of our inspection.

22 Q. Okay. They were either -- I'm sorry.

23 They were there either prior to or sometime before October the 4th, 2005?

25 A. Well, typically the fire marshal requires

001020

1 those to be installed in personal care homes. That's part of the -- one of the things that's done by other trades.

4 Q. Okay. And because you work with the fire marshal's office, you know about that requirement?

6 A. Yeah. We've had jobs held up because they weren't there. So we couldn't get our system cleared yet.

9 Q. And by blocked open, that would seem to indicate that somebody had put like a brick in front of the door or something?

12 A. A chair whatever.

13 Q. Just to keep the door from closing?

14 A. Yes.

15 Q. All right. Okay. And, of course, again, if those doors are blocked open during a fire, then the self-closing mechanism would be frustrated, right?

18 A. Yes.

19 Q. Meaning that smoke would spread more rapidly through the house, right?

21 A. Correct.

22 Q. And meaning that the residents in the house could be more quickly consumed by smoke, true?

24 A. That would be the reason for the closers, yes.

001021

1 Q. And so the reason why an OMNI inspector would note something like that on his inspection report is to basically communicate to the owner of the home that that is a safety concern, right?

5 A. That's why he wrote that.

6 Q. And you know that because you have talked to him, right?

8 A. Yes.

9 Q. Okay. Did OMNI's contract with Beretta -- with -- I'm sorry -- with Four J's, did that contract ever expire or ever -- not renewed?

12 A. No. 13 Q. And there was -- the contract calls for semiannual inspections; is that correct?

15 A. Yes.

16 Q. And if you'll look at the document that you've brought here, can you tell us what the last inspection report -- the date of it was?

19 A. Is that the last one? November 7th, 2007.

20 Q. And I see a couple of other reports that are -- one's dated January of 2003. We see one of -- in December 2003. And we see one October 2005. We see one dated October 2004. There's one dated October 2006. And then in the one between October the -- or -- I'm sorry. November 2006.

001022

1 A. Yes.

2 Q. I misspoke there.

3 There's one dated November 2006. And then the last one, you said, is dated November 2007; is that right?

6 A. Yes.

7 Q. Can you tell us why there wouldn't have been another inspection sometime in 2007 or was there?

9 A. I could pull our computer records and see if there's a document that didn't make it into the file -- 12 Q. Okay. Are you aware of any inspection that took place in 2008?

14 A. No. 15 Q. Did you look?

16 A. I did look. I saw that there was one November -- the year before. So it was probably coming up in November. And then the fire was in what month?

20 Q. September.

21 A. Then that's why. It burned before the 2008 inspection happened.

23 Q. I see.

24 Now, if we look at the inspection report that your son did for this residence, that one that

001023

1 I'm talking about was dated October 4th, 2005. You see that?

3 A. Yes.

4 Q. And if we look at the photographs of the fire taken shortly after the fire in September of 2008, you can see on page 70 there that it doesn't appear that the situation changed regarding the rear exit door and the lack of key access. Would you agree with that?

10 A. No. There's a lot that could have happened.

11 So I really can't make a statement to that.

12 Q. Okay. Well looking at the -- what you see depicted in the photograph, does that deadbolt lock there have the kind of lock where you can turn it manually and unlock it?

16 A. Doesn't appear to have, no. It looks like a keyed lock.

18 Q. Let me show you page 76 of the Houston Fire Department photos. It's a closer-up photo. Again, that photograph would indicate that you have to have a key to unlock the deadbolt, right?

22 A. Yes.

23 Q. Okay. And we can see there's significant damage done to the doorknob on that door. That kind of damage, if it existed, certainly should have been

001024

1 reflected on this inspection report, right?

2 A. Yes.

3 Q. The type of fire alarm system that was in this house, is it the kind of system that automatically notifies the Houston Fire Department?

6 A. No. That's a local alarm there. It only sounds local sounders.

8 Q. So if the fire department is going to be notified, it's going to have to be by somebody calling them on the phone from the Beretta Court residence?

12 A. Yes.

13 Q. As opposed to, say, like a fire alarm system installed in this building, would that be something that's connected directly to the fire department or do you know?

17 A. Well, it depends on when it was installed.

18 But in 2005, 2006 more fire departments started requiring monitoring. Previously they didn't require it in all buildings.

21 Q. Okay. Is that the kind of thing that a customer or consumer can order, though, if they want to?

24 A. Yes.

25 Q. How much does it cost?

001025

1 A. The monthly fee for that is $32 a month.

2 Q. So if the owners of the 16355 Beretta Court residence had wanted to do so before this fire took place, could they have set up a fire alarm system that would have automatically notified the fire department in the event of a fire?

7 A. Yes.

8 Q. And they could have done that for $32 a month.

10 A. Plus some installation and phone line costs.

11 That -- my fees would be 32, and then there would be fees for the phone lines.

13 Q. About how much would that be?

14 A. Typically about $80 for two dedicated phone lines.

16 Q. Per month?

17 A. Yes.

18 Q. So a total cost of, what, 110 or -- 19 A. Yes.

20 Q. -- dollars or so -- 21 A. Yes.

22 Q. -- per month?

23 A. Yes.

24 Q. And that would automatically notify the fire department in the event of a fire.

001026

1 A. It would notify the monitoring center, who would then call the fire department, yes.

3 Q. Thereby increasing, one would expect, the response time of the fire department, right?

5 A. Yes.

6 Q. I mean, that's the purpose of it, to get them there as soon as they can, right?

8 A. Correct. Yes.

9 Q. Okay. Is that the kind of service that OMNI sells to its customer?

11 A. Yes, we do that service.

12 Q. Is that the kind of service, from your view of the paperwork, which would have been offered to the owner of the Four J's -- I'm sorry -- of the Beretta Court residence?

16 A. It would have been available. I can't tell you that we called them and tried to solicit that.

18 But it certainly would have been available.

19 Q. Okay. And is that the kind of service that you've sold to other care home facilities here in Houston?

22 A. Yes.

23 Q. Okay. Are you still providing fire inspection services for Four J's Community Living Center?

001027

1 A. At other locations?

2 Q. Yes.

3 A. Yes.

4 Q. And by adding monitoring services, do you mean the automatic notification of the fire department?

7 A. Yes.

8 And quite frankly that could have been required by the jurisdiction, because they're starting to do that now on some of the older properties. So they may have -- I'm not sure if it was because they wanted it or -- because I wasn't the one who spoke with them, so ...

14 Q. You just don't know why they did that?

15 A. I don't know.

16 Q. You don't know if it was in response to the fire or if it was in response to some code change, right?

19 A. Correct.

20 Q. Okay. Nonetheless, it's something that could have been done at the Beretta Court residence prior to September the 4th, 2008, true?

23 A. Yes.

24 Q. But you know from the paperwork that you've seen related to this property, it's something that

001028

1 was not done prior to September 4th, 2008, correct?

2 A. Yes.

3 Q. And it's something you've seen done by other companies in the business of providing personal care services such as Four J's does?

6 A. Yes.

7 Q. And if something like that would have taken place -- a consult, I'll call it that. Is that what you call it?

10 A. Yes.

11 Q. Okay. If a consult would have taken place, is that the kind of thing that would have been reflected in OMNI's paperwork?

14 A. Not necessarily.

15 Q. Mr. Knapp at OMNI is the one who could speak to whether or not that occurred?

17 A. Yes.

18 Q. And I think I saw his name on one of these inspection reports, the one dated December 2003. Is that him?

21 A. That is him.

22 Q. Okay. And so if Four J's had wanted to do so, they could call Mr. Knapp and they could say, since we first installed this system in 2001, we're now caring for a client who is unable to walk, who is

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